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Case Number

C.W.P NO. 3099 & 2900/1991

Attorney(S)

MR. R.P Sharma Advocate for Petitioner
MR. Manmohan Sarin, MR. Anshul Tyagi, MR. Sanjay Yadav & MS. Barkha Babbar Advocate for Respondent

Judges

K. SHIVASHANKAR BHAT, J.

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Smart Summary

Judicial Opinion Summary — K. Shivashankar Bhat, J.

Factual and Procedural Background

Two writ petitions challenge the proceedings of a Departmental Promotion Committee (DPC) held on 31 August 1982 and seek directions to accept recommendations of a Review DPC constituted in 1991, to issue a revised Seniority List of DIGs, and to consider the petitioners for promotion to Inspector General (I.G.) on the basis of that revised seniority list. The petitions arise principally from the facts in N.S. Yadav's petition.

Relevant facts (as recorded): N.S. Yadav, after release from the Indian Army, joined Border Security Force (BSF) as Assistant Commandant and rose through ranks: Dy. Commandant (1971), Commandant (1973), Additional Deputy Inspector General (Addl. Dy. I.G.) (1981). In the Seniority List of Addl. Dy. I.G.s, N.S. Yadav was at S. No. 8 and co-petitioner Mehta at S. No. 4. On 31.8.1982 the DPC adopted a new formula for scoring candidates (ACRs—100; Professional Courses—15; Holding certain appointments—12; Gallantry awards—5; total 132). Those scoring 100 or above were to be recommended; records show six persons were recommended and subsequently promoted on the basis of the August 1982 DPC.

Petitioners say they were given marks below the threshold (Mehta 97; N.S. Yadav 96.6) and that Mehta received no marks for proficiency in courses while Yadav received 3 marks thereunder. Petitioners represented against denial of promotion in 1982; their representation was made the same year but not pursued actively until reminders in 1988. A subsequent DPC in May 1983 abandoned the August 1982 method, confined itself to five years' ACRs, and recommended both petitioners, who were promoted in December 1983. In 1989 the earlier 1982 representations were processed and a Review DPC in 1991 recommended the petitioners for promotions dating to 1982, but the Government did not accept those Review DPC recommendations. The petitioners contend that failure to remedy the 1982 seniority positioning would adversely affect their chances for later promotion to I.G.

Legal Issues Presented

Whether the August 1982 DPC's adoption of a new scoring method (including marks for professional courses, holding certain appointments and gallantry awards) was legally irrelevant or arbitrary and therefore liable to be quashed.
Whether the Government was obliged to accept the recommendations of the 1991 Review DPC and to revise the seniority list accordingly.
Whether the petitioners' delay (laches) in prosecuting their 1982 representation bars the exercise of writ jurisdiction in 1991.
Whether the 1991 Review DPC acted within its scope (or exceeded it) when it reviewed the August 1982 proceedings and whether it had competence to revisit the merits of the original DPC assessment.

Arguments of the Parties

Petitioners' Arguments

The August 1982 DPC could not lawfully adopt a new method (the novel formula) to assess merit; therefore its principle for recommending six persons was irrelevant.
The Government ought to have accepted the recommendations of the 1991 Review DPC; the Government has not disclosed reasons for non-acceptance.
The panel recommended by the August 1982 DPC lapsed on constitution of the May 1983 panel because promotional orders based on the August 1982 panel were not made until June 1983.
An officer who was not sent on a course cannot be denied marks for not having undergone that course; hence denying marks for professional courses is unfair where opportunity to attend courses is not controlled by the officer.

Respondents' Arguments

The writ petitions are time-barred by laches: petitioners acquiesced and did not pursue their representations until 1988, having been promoted in December 1983 and thereby demonstrating satisfaction with that outcome.
Each DPC has the competence to evolve its own procedure; the criteria chosen by the August 1982 DPC (including marks for proficiency in professional courses, command performance and gallantry awards) were relevant to promotion to the post of DIG and cannot be deemed irrelevant.
The 1991 Review DPC exceeded its scope: it acted beyond a review committee's remit, made its recommendations by circulation (members did not sit together), reviewed both the August 1982 and May 1983 proceedings, and improperly attempted to go into the merits of the earlier DPC assessments; once recommendations of a DPC are accepted and acted upon, the Review DPC cannot re-evaluate the merits.

Table of Precedents Cited

The opinion records that counsel for both sides relied upon several decisions, but no specific cases or precedents are identified in the text provided.

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court proceeded step-by-step through the factual and legal contentions and applied governing administrative principles and government instructions quoted in the record:

Allegation of malafides against the then Director General: The court rejected the allegation as vague and unsupported. The opinion notes the Director General was not impleaded as a party and that the petition did not disclose nature and reason for alleged malafide; hence the allegation could not be accepted.
Laches and delay: The court held that when the cause of action arose in 1982, approaching the court only in 1991 was barred by laches. The petitioners had not pursued their 1982 representation until 1988 (six years of inaction), and that inaction meant they could not claim diligence; others had acquired a sense of security and seniority which could not be upset after such delay.
Autonomy and procedural variety of DPCs: The court emphasised that each DPC can evolve its own procedure, a principle reflected in government O.M.s (the opinion cites O.M. Nos. 22011/6/76-Estt. dated 30.12.1976 and 22011/3/76-Estt.-D dated 24.12.1980). The court found the August 1982 DPC's approach—considering ACRs plus proficiency in professional courses, command performance and gallantry awards—not irrelevant or arbitrary for promotions to DIG, given the post's responsibilities.
Scope of Review DPC: The court examined the Government order No. 22011/3/80 (Estt—D) dated 26.3.1980 and quoted para 2, which limits review DPCs to situations where material facts were not considered or there were grave procedural errors, and expressly states that review DPCs "cannot in any case go into the merits of the assessment made by the DPC." The order also states that once recommendations of a DPC are accepted by the appointing authority, they are final; disagreements with merit should be raised before acceptance and action upon the recommendations.
Assessment of the 1991 Review DPC's conduct: The court found that the Review DPC acted improperly in important respects. It met by circulation (members did not sit together) and reviewed both the August 1982 and May 1983 proceedings. Given the quoted limitations on review DPCs, the 1991 Review DPC's actions were beyond the permissible scope where the August 1982 recommendations had already been acted upon.
On the argument about professional course marks: The court noted the August 1982 DPC awarded marks not merely for attendance at courses but for comparative "proficiency" in the course among those who had undergone courses. Thus, refusal to give marks where a candidate had not undergone a course is distinct from assessing relative proficiency where courses were taken.
Overall evaluation: After applying these principles to the facts, the court concluded there was no merit in the writ petitions. The court observed that counsel invoked several decisions but found no distinction in applicable principles that would support petitioners' claims.

Holding and Implications

DISMISSED. The writ petitions were dismissed; the Rule was discharged and no costs were awarded.

Immediate consequences for the parties:

The Court refused to quash the August 1982 DPC proceedings or to compel acceptance of the 1991 Review DPC recommendations as sought by the petitioners.
The promotions and seniority consequences flowing from the August 1982 DPC (and subsequent actions) stand as they were; the petitioners' challenge to alter seniority and obtain promotions for 1982 was unsuccessful.

The opinion does not articulate any broader legal principle intended to create new precedent beyond applying existing administrative instructions on the scope of review DPCs and the established equitable doctrine against stale claims (laches). No novel rule of law was announced in these reasons.

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N.S Yadav v. Union Of India & Others..

K. Shivashankar Bhat, J.— In these two writ petitions, petitioners seek the quashing of the proceedings of the Departmental Promotion Committee (DPC for short) held in August, 1982 and for a further direction to accept the recommendations of the Review DPC held in the year 1991 and to issue a revised Seniority List of DIGs; they also seek a direction to consider their case for promotion as I.G on the basis of the revised Seniority list as aforesaid; other relief sought are only Consequential to these reliefs.

2. To appreciate the case, it is sufficient if reference is made to the facts in N.S Yadav's writ petition. Petitioner, on release from the Indian Army joined the Border Security Force as an Asstt. Commandant. In the year 1971 he was promoted as Dy. Commandant and in the year 1973, he became a Commandant. In the year 1981, petitioner was promoted as Additional Deputy Inspector General. In the Seniority List of Add. Dy. I.G, N.S Yadav was at S.No 8 and the other petitioner Mehta was at S.No 4. According to the petitioners, they underwent several professional courses, in the course of their employment; each of them earned awards also for good service. On 31.8.1982 DPC proceedings were held to consider thecases of the petitioners and others for promotion as Dy.I.Gs Though, all these years, only ACRs were being looked into to consider the case for promotion, for the first time, this DPC adopted a new formula, under which, marks were fixed for each of the following: (1) ACR—100; (2) Professional Courses 15; (3) Holding certain appointments—12 and (4) Gallantry awards—5; total 132. Those who procured 100 marks and above were recommended for promotion and the following five were recommended:

(1) Beyant Singh (He was no. 1 in the seniority list) (2) Surinder Singh (He was no. 2 in the seniority list) (3) Roop Ram (He was no. 5 in the seniority list) (4) P. Pillai (He was no. 10 in the seniority list) Pillai is fourth respondent in the CWP. (5) Sher Singh (5th respondent) (He was no. 14 in the seniority list) (6) A.S Ahir (6th respondent) (He was no. 16 in the seniority list)

3. Petitioners allege that while Mehta was given a total of 97 marks, N.S Yadav was given 96.6 marks by the DPC. No mark was awarded to Mehta for proficiency in courses; however Yadav secured 3 marks under the said ‘head’. These recommendations were accepted and promotions were done accordingly.

4. Petitioners represented against the denial of promotions to them. This representation was made in the year 1982, itself. (However, till 1988, petitioner did not pursue the matter, as is clear from the fact that reminder of the representation was sent as in the year 1988).

5. In May 1983, another DPC proceedings were held to consider further promotions as Dy. I.G This DPC of May 1983 abandoned the procedure evolved by the 1982 DPC and confined its attention to five years ACRs. Both petitioners were recommended for promotions and accordingly they were promoted in December 1983.

6. Petitioners assert that their representations against the denial of promotions in the year 1982 were processed only in the year 1989 and in the year 1991 a Review DPC was constituted, which, on a consideration of the cases of the petitioners, recommended them for promotions in the year 1982; however, the Government did not accept this recommendation. Hence the present writ petition. In the meanwhile, promotions to the post of I.G was being considered. If the petitioners are not given their due place in the seniority list of DIG as on 1982 (by virtue of the August 1982 DPC proceedings), their positions in the seniority list will be lower down, adversely affecting their chances of promotion.

7. Petitioners attribute motive to the then Director General who was to retire at the end of August 1982; it is alleged that he held the DPC proceedings on the penultimate day of his service and persuaded other members to adopt a new formula to consider the cases for promotion.

8. I may straightaway reject this allegation of malafides made before me, because, the writ petitions do not disclose the nature and reason for the alleged malafide of the then Director General; he was not even impleaded as a party to the writ petition. It is not possible to accept such a vague allegation of malafides.

9. The learned counsel for the petitioners contended:—(1) the first DPC could not have adopted a new method to consider the merit of each candidate and therefore, the principle on which it recommended the case of six persons was irrelevant; (2) The Government should have accepted the recommendation of the Review DPC of the year 1991; Government has not disclosed the reasons for not accepting the said recommendations; (3) The panel recommended by the August 1982 DPC lapsed on the constitution of May 1983 panel, because, promotional orders as per the panel prepared by the August 1982 DPC had not been made till June 1983.

10. Respondents 1 to 3 contended:—

(1) The writ petitions are belated and they are liable to be dismissed in view of the laches. The petitioners acquiesced to the DPC proceedings of May 1982 and they did not pursue their representations against it till 1988, because, they were satisfied with their promotions made in December 1983;

(2) Each DPC is entitled to evolve its own procedure to consider the ease for promotion. The criteria adopted by the May 1982, DPC cannot be considered as irrelevant. The award of marks for ‘proficiency’ in professional courses is different from awarding marks for ‘professional courses’. Concept of proficiency itself indicates the merit of a person. DPC of the August 1982 thought it proper and relevant to award 15 marks for this proficiency. The other ‘head’ “Command” (maximum marks 12) and gallantry awards (maximum marks 5) also cannot be held irrelevant having regard to the post to which candidates are to be promoted; post of DIG is an important and highly responsible post;

(3) The Review DPC of the year 1991 acted beyond the scope of Review Committee. In fact, the members did not even sit together. They made their recommendations after circulating the papers. Further, instead of functioning as the Review Committee in respect of the August 1982 proceedings, this 1991 DPC proceeded as if it has to review both the proceedings of May 1982 and May 1983. When the recommendations of the August 1982 DPC had already been acted upon, there is no scope to review it by the Review DPC.

11. I find considerable force in all these contentions advanced by the respondents. Law does not expect an aggrieved person to keep quiet for several years and then approach it for the relief. When the cause of action for invoking this Court's jurisdiction arose in the year 1982, the writ petitions filed in the year 1991 are liable to be rejected. The petitioners contend that, the respondents were in the process of considering their representations made in the year 1982, even as late as the year 1989. This explanation is unacceptable. Till the year 1988 for nearly six years, the representations of the petitioners were not taken up for consideration. They thought it fit or expedient to keep quiet till the year 1988, before pursuing their earlier representations. Even if they had approached this Court in the year 1988, this Court would have declined to extend the writ jurisdiction in their favour in view of the laches on their part. Only because the petitioners were successful in bringing forth their representation, to the front, in the year 1988, it cannot be said that they were diligent. In the meanwhile, others who were promoted and had become or shown to be seniors to the petitioners had developed a sense of security and seniority over the petitioners; their accrued right cannot be upset at this stage.

12. Each DPC can evolve its own procedure. This is a recognised principle, reflected in the instructions issued by the Government as per O.M No. 22011/6/76-Estt. dated 30.12.1976 and O.M No. 22011/3/76-Estt.-D dated 24.12.1980 I do not think the several factors, considered to award marks, by the August 1982 were irrelevant. Promotion to the post of DIG is strictly according to merit. To adjudge the merit of the candidate it is not necessary to confine the considerations to the ACRs of five years only. In addition the DPC may consider other qualities of the candidate having a bearing on the post of DIG the ‘proficiency’ in courses is one such relevant factor. The subject of “command” certainly cannot be brushed aside and similarly the fact that candidate had received ‘gallantry award’ could be taken note of. It is also likely that another DPC may confine its attention only to the ACRs; a third DPC may consider it proper to conduct some written examination or hold interviews, in addition to considering the ACRs. The Review DPC of the year 1991 was not competent to sit in appeal over the procedure evolved by the earlier DPC; The scope of the power of the Review DPC is found in the Government order No. 22011/3/80 (Estt—D) dated 26.3.1980 Para 2 of this order says;

“The circumstances under which the proceedings of a DPC can be reviewed have been laid down in para xv (6) of the aforesaid O.M These are not exhaustive but only illustrative. It is, therefore, hereby clarified that the proceedings of any DPC can be reviewed only if the DPC has not taken all material facts appropriately into consideration or if such material facts have not been brought to the notice of the DPC, or if there have been grave errors in procedure followed by the DPC. Review DPCs can be held accordingly only in such instances of facts or wrong procedure. Such review DPCs. cannot in any case go into the merits of the assessment made by the DPC.”

As to the finality, it reads”

“Once the recommendations of the DPC are accepted by the appointing authority, it shall be final. Thus, if any question is to be raised or disagreement with regard to the merit of assessment by the DPC is to be expressed, it should be done only before the recommendations of the DPC are accepted and acted upon.”

The proceedings of August 1982 DPC states:

“The Committee felt that since promotions to the rank of DIG are to be made purely on the basis of merit, it was necessary to adjudge the officers not only on the basis of their ACRs but also on their proficiency in professional courses and their performance as field commanders. In addition, a slight weightage was also considered necessary in favour of those who had won gallantry awards.”

13. I consider the above approach as not irrelevant nor arbitrary in any manner. I fail to understand how the Review DPC could comment on this approach as resulting in “aberrations”.

14. Respondents are also justified in attacking the procedure adopted by the Review DPC 1991. The meeting was held by Circulation and the minutes placed before me indicate that the Review DPC, reviewed both proceedings of August 1982 and of May 1983. Since this is a case of accepting or rejecting the recommendations of the Review DPC, question of giving detailed reasons for not acccepting the recommendations did not arise.

15. The learned counsel for the petitioner submitted that an Officer in service has no say in the matter of undergoing an course and if he is not sent to undergo any professional course, he cannot be denied marks on that count.

16. This contention overlooks the basis of the evaluation adopted by the first DPC. It did not award marks for those who had undergone any course; instead, it considered the comparative merit of all the officers with reference to their respective ‘proficiencies’ in the course undergone by them. It is one thing to say that a person has not undergone any course and it is entirely another thing to say a person's comparative proficiency in the course undergone is better.

17. The counsel on both sides relied on several decisions But I find there is no difference in the principles to be applied. I have considered the relevant principles with reference to the facts of these cases and find no merit in these writ petitions.

18. Writ petitions are accordingly dismissed. Rule discharged. No costs.

N.S Yadav v. Union Of India & Others..

Judicial Opinion Summary — K. Shivashankar Bhat, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

N.S Yadav v. Union Of India & Others..

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