S K CHAUDHARY Vs. UNION OF INDIA

JUDGEMENT

(1.) BY consent of counsel for both sides, the writ petitions are taken up together for hearing, common arguments were advanced by counsel on both sides, hence, the writ petitions are disposed of by this common order.

(2.) THE petitioner joined Indian Coast Guard as Assistant Commandant in December 1982, later, he was promoted as Commandant - Selection Grade on 29. 06. 2003. He worked as Commandant at Coast Guard District Head Quarters-5, Stationed at Madras, when filing the writ petitions, he was transferred as Commandant Officer, Mandapam. The Coast Guard (Seniority and Promotion Rules) 1989 provides for promotion to the post of Deputy Inspector General from the rank of Commandant, who should have completed 8 years of service in the rank of Commandant and two years of sea-time. The petitioner is said to have qualified for next promotion as Deputy Inspector General, which was due on 29. 06. 2001. The petitioner gave a representation on 10. 03. 2003 to the respondents/department to consider him for promotion to the post of Deputy Inspector General, which is due for a long period. The Coast Guard Head Quarters sent a communication dated 09. 06. 2003 stating that his representation was considered and he is eligible for consideration for promotion to the post of Deputy Inspector General and he would be considered for promotion as and when the Board is convened. On 08. 08. 2003, the Departmental Promotion Committee (DPC) was convened by the second respondent for the year 2003 for 12 vacancies of Deputy Inspector General. Though the petitioner and others were considered, he was not selected but his batch mates namely K. C. Pande, M. A. Thalha, K. R. Nautiyal and S. R. Thyagi, who are respondents 3 to 6 in WP No. 30240 of 2003 were selected and only 4 vacancies were filled up out of the 12 vacancies. Aggrieved by the said act of non-selection, the Petitioner has filed W. P. No. 30240 of 2003 to call for the records relating to the promotion list issued by the respondents/department for the post of Deputy Inspector General for Coast Guard dated 18. 08. 2003 and quash the same and direct the respondents/department to promote him as Deputy Inspector General with effect from 29. 06. 2001 with all consequential benefits. When the said writ petition is pending, the respondents/department have sent a communication dated 13. 11. 2003 threatening departmental action since the petitioner has filed writ petition before this Court, which was also brought to the notice of this Court and this Court directed the respondents/department to tender an unconditional apology, which was complied with by them. At that time, the respondents/department proposed to convene DPC and the petitioner filed WPMP No. 31809 of 2004 to consider his name and the respondents/department submitted that the name of the petitioner would be considered by them and the said petition was ordered accordingly. The petitioner was surprisingly issued a show cause notice by the second respondent stating that when the petitioner was sitting along with other members to hear a case, though ample documentary evidence were brought on records to establish the charges relating to the said accused, the same were not considered properly, which amounts to failing in the duty and called for an explanation from him. The said notice is challenged in WP No. 22354 of 2005 on the ground that the same was issued only to defeat his promotional aspect. The petitioner later came to know that the second respondent conveyed a department promotion committee on 30. 10. 2005 and promoted his juniors, challenging the same, he has filed WP No. 36065 of 2005 wherein the said persons were cited as respondents 4 to 8.

(3.) THE learned Senior counsel Mr. G. Rajagopal appearing for the petitioner submitted as follows:-The petitioner came to know when ranking on merit was made his name was placed in the second or third position in the list of the persons to be promoted as DIG in the year 2003, but his name was not included in the select list when published. There were 12 vacancies of DIG post, but the respondents/department filled up only 4 vacancies. Non-filling of rest of the vacancies is against the Rules. Non-consideration of the petitioner for promotion is violative of Fundamental Rights. The Rule, which prevailed in the year 2003 was that the promotion of officer to the rank of Commandant and above shall be made on the basis of merit with due regard to seniority. When apply merit with seniority as prescribed in the then Rule, the assessment of comparative merit of all eligible candidates and selecting the best out of them has to be made. The selection based on merit with due regard to seniority means merit in all respects shall be the governing consideration and the seniority shall play only a secondary role. It is only when merit and suitability are roughly equal, the seniority will be the determining factor. Though the petitioner secured more marks than the sixth respondent in WP No. 30240 of 2003, non-inclusion of his name is illegal, which is evident that in Appendix B of nominal roll of commandants for consideration for promotion to the rank of DIG by CGSPB NO. 2 - 18th AUGUST 2003 (FOR THE YEAR 2002) it is mentioned thus:- <FRM>JUDGEMENT_1414_TLMAD0_2006Html1.htm</FRM> The bench marks 13. 50 to 14. 99 is very good. By pointing out the said Appendix, the learned Senior counsel submitted that K. N. Krishnamoorthy has secured 14. 42 and the petitioner herein has secured 13. 76, both were found fit, but the respondents/ department arbitrarily selected the person at Sl. No. 7 Tyagi (R6 in WP No. 30240 of 2003), who has secured only 13. 74, hence, the selection is contrary to the said Rules, besides, only four vacancies were filled up out of 12. The details of the said benchmarks were deliberately not mentioned in the counter, but the same was ascertained only when the records were summoned by this Court. It is also wrongly mentioned in the counter that non-inclusion of the petitioner was that he was in low medical category. Even in case of low medical category, the respondents/department should have forwarded it to Director General, who is the competent authority, but the respondents/department failed to do so in the petitioner's case. In support of this contention, the learned Senior counsel relied on the below mentioned decisions:-