M I KHAN Vs. DIRECTOR GENERAL

JUDGEMENT

(1.) The present petition has been filed under Article 226 of the Constitution of India read with Articles 14 and 16 thereof, challenging the action of the respondents in not promoting the petitioner from the post of Inspector to the post of Assistant Commandant in Border Security Force.

(2.) The petitioner claims that he was working as Police Inspector in Border Security Force since 20.11.1980 and therefore, he was eligible for promotion to the post of Assistant Commandant. That by a wireless message, 66 Inspectors were promoted to the post of Assistant Commandant w.e.f. 10.2.1989. That out of these, 35 Inspectors are junior to the petitioner, that at the time when the junior Inspectors were promoted to the post of Assistant Commandant, the petitioner was not promoted to the said post. That against the said supersession, the petitioner has made representation to the first respondent on 22.2.1989 as per Annexure 'C'. That his representation was rejected by the respondent by letter dated 29.5.1989, copy of which has been placed at Annexure 'B'.

(3.) The petitioner claims that promotion from the post of Inspector to the post of Assistant Commandant has to be made on the basis of merit having due regard to seniority as per rules of the department. That it would mean that seniority has to play a predominant part and the criterion for promotion would be seniority-cum-merit and in that case the petitioner could be superseded only if he was found positively unfit for promotion. That there was no material before the departmental committee for finding the petitioner positively unfit for the said promotion and the supersession is liable to be set aside. That the Committee had applied the criterion of merits only, which criterion was meant for the higher posts of Deputy Inspector General and above as per the rules applicable to the petitioner. That therefore, incorrect criterion has been applied in the present case. Hence supersession is liable to be set aside, that the petitioner would even satisfy the criterion of pure merits apart from merits having due regard to seniority. It is stated that no adverse remarks were even communicated to the petitioner which would mean that all his confidential records were good and above. The petitioner was never imposed any penalty and not even warning or censure was imposed. That on the other hand, the petitioner had received merit certificates in 82-83 onwards and even cash awards were also awarded to the petitioner as stated in para 8 of the petition. The petitioner further contends that the Annual Confidential Report for the year 1982, 1983 and 1984 were not available with the Departmental Promotion Committee. That the self-appraisal reports were required to be submitted by the petitioner in 1987 but he could not do so. Therefore, the department did not have any Annual Confidential Report for the aforesaid three years at the time when the case of promotion of the petitioner was considered. Therefore, it is apparent that the Departmental Committee did not consider the services of the petitioner for the aforesaid three years i.e. 1982, 1983 and 1984. Therefore, also the omission of name of the petitioner from the select list for the promotion was illegal. The petitioner also contended that the persons junior to the petitioner who have been promoted from 10.2.1989 did not possess outstanding service records so as to supersede the petitioner and in fact some of them had suffered penalties to their discredit. That the respondents may be called upon to produce the service records of the petitioner as also those of juniors promoted from 10.2.1989 before this Court. The petitioner has further contended that the petitioner's service record is good since no adverse remarks have been communicated to him. That if the service record is good then the petitioner would satisfy the test of even pure merit and hence he cannot be superseded. The petitioner has, therefore, challenged his supersession and for appropriate writ, order or direction quashing and setting aside the supersession of the petitioner for the post of Assistant Commandant and for direction to the respondents or any committee appointed by them to consider the case of the petitioner for promotion to the post of Assistant Commandant in proper perspective and/or promote him to the said post w.e.f. 10.2.1989 with all consequential benefits.