J.S.Sandhu vs Union of India and others

Petitioner is a commandant (SG) in the Special Service Bureau (SSB). He has been left out of promotion to the post of DIG. He feels aggrieved

and has filed this writ petition seeking a direction to official respondents for his own promotion and for quashment of promotion of respondent

No.5.

Petitioner's whole case revolves round the ""recordable warning"" dated 3.7.1987 which seems to have stopped him in his tracks. According to

him, this ""warning"" was used to deny him promotion to the post of DIG when it was not liable to be taken into account at all.

The whole heat naturally turned round this controversial warning and arguments on both sides focused on this aspect alone: No other issue was

canvassed before me.

Petitioner was initially serving in the Army. After his release from there he was selected in Paramilitary Forces and was appointed Commandant

in SSB. While serving at Group Centre, Jammu, he was hauled up for some irregularities and was administered a recordable warning on 3.7.1987.

But he was awarded a President's Medal only six months later in recognition of his contribution to the service and was subsequently promoted to

the post of selection Grade Commandant in 1991. His case in nutshell is that all important ""warning"" could not be acted upon to deny him

promotion as it had ceased to be a factor because of subsequent developments; viz. award of Gold Medal to him and his promotion to selection

grade.

Respondents have filed detailed objections taking the stand that the post of DIG is a selection post which is filled up on the basis of merit and

suitability. It is claimed that the DPC, convened in November, 1993 considered all the four eligible candidates including the petitioner and selected

respondent No.5 for promotion on the basis of his superior merit and suitability. It is denied that the petitioner was excluded from consideration.

Regarding the ""warning"", it is submitted that it wasawarded to him and placed in his ACR folder after he was found to have committed some

irregularities while posted as Commandant at Group Centre, Jammu, in 1987. It is admitted that,he was awarded President's Medal in recognition

of his contribution with reference to a particular operation but it is stressed that it would not entitle him to any out of turn benefits through out his

service career.

The arguments on both sides have proceeded on usual pattern. Mr. Bhardwaj, learned counsel for the petitioner, relying on AIR 1988 SC

2060, AIR 1969 SC 1622 and 1970SIR(4) 375, was at pains to canvass that the controversial warning could not be acted upon as it had lost its

effect after the petitioner was awarded President's medal and granted selection grade in 1991, which amounted to his promotion to the higher rank.

He asserted that this warning was at no point of time communicated to him or reflected in his ACRs which contained no other adverse entry all

along his service career and, therefore, it was not liable to be taken into consideration, muchless could it be made basis for denial of promotion.

Mr. Gupta, representing the respondentUnion, on the other hand, sought to whittle down the worth of the selection grade granted to the

petitioner which, according to him, was not a promotion in true sense of the word and was given only on the basis of. senioritycumfitness and not

on merit providing no occasion for the ""warning"" to be taken in regard at the relevant time. He submitted that the D.PROCEDURE CODE had

rightly taken the ""warning"" into consideration while assessing the suitability of the petitioner as there was no legal impediment in doing so.

Alternatively, he argued that even if the warning was excluded from consideration, it would have made no difference in the result of the selection as

other contenders admittedly possessed better merit and suitability as against the petitioner. Therefore, even if he was considered minus warning he

would still fail to make the grade and any direction to accord him a fresh consideration would be an exercise in futility. He urged against issuing any

writ or direction in favour of the petitioner which would ultimately turn out to be futile in the facts and circumstances of the case.

All that falls for determination is: whether the controversial warning awarded to the petitioner in July 1987, could be taken in regard by the DPC

for assessing suitability of the petitioner for the post of DIG in 1993 and whether it could constitute a basis for his ouster and whether a valid

consideration was accorded to him in the circumstances of the case?

All these issues are no longer resintegra. It stands firstly settled by now that uncommunicated and stale adverse material or report cannot be

acted upon or used against a Government servant to deny him the benefits of service, moreso when he is allowed to go up the ladder by way of

crossing of efficiency bar, grant of promotion to higher post or rank or of awards etc. The rationale behind is that any adverse uncommunicated

material or report infringes the principles of natural justice and deprives the employee of an opportunity to improve his work and conduct and even

where communicated, such material or report is rendered toothless and gets washed off if a promotion is granted to him or he is allowed to cross

efficiency bar. Whether or not an employee was, in fact, promoted in the strict sense of the word, may be debatable in the circumstances of a given

case. But, so long as there is some kind of a rise in his payscale, status or rank, the requirement is satisfied and any adverse material/report prior to

such action is deemed to have lost its sting and effect and becomes redundant so to say. It appears to me useless to burden this judgment with the

authorities in support of this proposition but even so extracts from the two decisions of the Supreme Court should serve the purpose:

AIR 1988 SC 2060 ""It is a settled principle that an uncommunicated adverse material cannot form the foundation to deny benefits to a

Government Servant.......

(1970) 4 SLR 375

Adverse confidential report prior to the crossing of the efficiency bar cannot be used because the crossing of the bar gives clear slip to the

employees upto the date"".

This makes it easier to deal with the rival contentions. It is not in dispute that the petitioner was awarded the President's Medal barely six months

after the ""warning"" and was also promoted to the post of Selection Grade Commandant. Mr. Gupta's only objection is that all this had no bearing

on the ""warning"" which survived and remained in fact for future use. Elucidating, he maintained that all this could not be construed to be a

promotion in the strict sense of the word to wipe off the ""warning"" from the record. He cited AIR 1972 SC 995, where in it was held:

........It is well recognised that a promotion post is higher post with a higher pay. A selection grade has higher pay but in the same post. A selection

grade is intended to ensure that capable employees who may not get a chance of promotion of account of limited outlets of promotions should at

least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades, are, therefore, created in the interest of

greater efficiency.......

I find it difficult to go alongwith Mr. Gupta's reasoning because the events subsequent to the controversial warning viz. Award of Gold Medal and

promotion to selection grade have, in my view, rendered the warning redundant and incapable of use for blocking the future promotional

prospectus of the petitioner. After all, the award of a Presidential Medical to a service personnel is no ordinary affair. It is a recognition of his merit

and contribution in service and gives him a clear chit till date. The same holds true about the selection grade irrespective of whether it is treated as a

substantive promotion. It may be true that the purpose of such a selection grade is to remove stagnation in the maximum scale of pay, but it is a

higher payscale all the same and it is not available in a routine manner. Mr. Gupta's contention that it is granted on the basis of seniority and fitness

alone, makes little difference and does not detract from the fact that it entails consideration of merit also and is not available to all and even to those

with a tainted record. Therefore, the grant of the selection grade may not be a promotion to the higher post strictly speaking but it certainly results

in a higher payscale and to that extent, has as good an effect of washing off the earlier bad spots as that of a substantive promotion to a higher

post.

Having said so, it becomes necessary to have a look at the selection record to know the extent of the role played by the ""warning"" in blocking

the petitioner's promotion to the post of DIG. An examination of the record reveals that this ""warning"" had proved petitioner's undoing. The

minutes of the DPC meeting amongst other things record, as under:

The committee noted that since Shri Sandhu Commandant had been administered warning under Cabinet Sect's No. 4/3/86 dated 3.8.1987, on

the basis of inquiry conducted by the CBI against Shri Sandhu for having committed Codel and procedural irregularities while making local

purchase of Government stores. Considering the fact that the post of DIG is a senior managerial post, only officer of the utmost rectitude,

uprightness and efficiency should be considered. Since Shri Sandu has been administered warning during the period of consideration of ACR,

CPC does not find him suitable for promotion to the grade of DIG"".

A perusal of the record shows that the petitioner had been declared unfit on the basis of the ""warning"" alone. What would be his rating minus the

warning"" falls in the realm of surmise and can be answered by the DPC only.

Considering all this, I hold that the ""warning"" awarded to the petitioner way back in 1987 could not have been acted upon and used to block

his promotion to the post of DIG in 1993 when he was admittedly awarded President's Medal and granted selection grade subsequent to it. In

other words, it could not have formed any basis, least of all the sole basis, for assessing his suitability for promotion and the consideration awarded

to him by the DPC on such lines become illusory and is consequently vitiated.

From the allied petition filed by the petitioner it transpires that he is retiring from service on 31.10.1994. Therefore, it becomes difficult to

decide the relief to be granted to him. There is no question of quashing the selection of respondent No.5 because he stands head and shoulder

above all contenders and would have made the grade any way. It may also appear futile on a superficial view to direct the Union to reconsider the

petitioner minus ""the warning"". But, considering the fact that he had not been accorded a valid consideration and that if he was selected, he could

stay in service for three years more, it would be unjust to send him away empty handed. Therefore keeping in regard the totality of circumstances, I

deem it just and proper to direct the Unionrespondent to reconsider the petitioner for promotion to the post of DIG in SSB in accordance with the

rules and uninfluenced by the warning awarded to him in 1987. In case he qualified, he shall be reinstated in service with all consequential benefits

from the present date of his retirement.

This writ petition is partly allowed to the extent indicated.