GOPAL SINGH RATHORE Vs. UNION OF INDIA

JUDGEMENT

(1.) The grievance voiced by the petitioner in the instant writ petition under Article 226 of the Constitution of India is that he has been wrongly deprived of promotion on the post of Deputy Commandant, while persons junior to him have been promoted vide order dated 13-2-1998. Initially, the petitioner approached to the Jammu & Kashmir High Court by way of writ petition for redressal of the said grievance. The respondent BSF took the stand that the petitioner was not considered for promotion by the Departmental Promotion Committee because of adverse entry in the A.C.R. for the year 1989/90. However, it was admitted that the said adverse entry was not communicated to the petitioner. In view of this, the Jammu & Kashmir High Court allowed the writ petition and directed the respondent to communicate the adverse entry to the petitioner. A liberty was also given to the petitioner to make a representation against the said adverse entry. It was observed that if the adverse entry continued against the petitioner, he would not be promoted but if the entries are obliterated, he will be entitled to promotion with retrospective effect. Accordingly, the adverse entries were communicated to the petitioner under Communication dated 23rd March, 1998 (Annex.4). The remarks made in the A.C.R of the year 1989-90 as communicated vide Anne.4, reads as follows: "The officer has been assessed as matured, sober, physically tough, energetic with initiative and drive and satisfactory performance while posted in the border area....To be kept under watch."

(2.) The petitioner made a detailed representation against the said adverse entry. The representation was rejected and in view of the adverse entry, the decision not to promote the petitioner on the post of Deputy Commandant remained intact.

(3.) It is contended by Mr. J.P. Joshi, learned counsel for the Petitioner, that the remarks as communicated to the petitioner in the A.C.R. for the year 1989-90 can not be considered adverse by any standard or stretch of imagination. The recording of personal appraisal of the petitioner to the effect that the petitioner may be kept under watch, appears to be only a note of caution. It may, at the most, be considered in the form of advisory. On the other hand, Mr. Vyas, learned counsel appering for the respondents, submits that the remark" to be kept under watch" is significant, serious and adverse, if it is read in totality. It is further submitted that there were certain allegations and complaints against the petitioner of conniving with the smugglers etc. He has invited our attention tothe averments made in para 9 of the reply to the petition. It is further submitted that the petitioner's name remained in the list of officers having doubtful integrity for the years 1990 to 1993.