Union Of India & Ors vs B.S. Darjee & Anr

Union of India & Ors. ... Appellants

Versus

B.S. Darjee & Anr. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal against the order dated 26.08.2004

of the Division Bench of the Madras High Court in Writ

Petition No. 7929 of 2000 (for short `the impugned order').

2. The facts very briefly are that the respondent no.1 was

working as Constable (General Duty) under the Central

Industrial Security Force (for short `the CISF'). In 1993, he

was considered for promotion to the rank of Lance Naik and

was empanelled for such promotion. Before he was

appointed as Lance Naik, however, he was awarded the

punishment of withholding of one increment for a period of

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one year and as per circulars of the Department of

Personnel and Training, Government of India, his

empanelment for promotion to the rank of Lance Naik had

to be cancelled on account of the punishment. In 1994,

respondent no.1 was again considered for promotion and he

was found fit, but before his actual promotion he was

awarded punishment of withholding of one increment for a

period of one year and his promotion was again cancelled.

In 1995, he was again considered and empanelled for

promotion to the post of Lance Naik, but before he could be

appointed, he was awarded the punishment of censure and

his empanelment for promotion was cancelled. In 1996-

1997, he was again considered for promotion but he was

not found fit by the Departmental Promotion Committee (for

short `the DPC').

3. The rank of Lance Naik in CISF was rationalized and

Lance Naiks also became Constables with effect from

10.10.1997, but in the seniority list, Constables who were

junior to respondent no.1 in service but had been promoted

as Lance Naiks were placed above the respondent no.1 as he

had not been promoted to the rank of Lance Naik. From

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1998 onwards, Constables who had completed ten years of

service in the rank of Constables including the service

rendered by them in the rank of Lance Naik prior to

10.10.1997 were eligible for promotion to the post of Head

Constables. Under the relevant circulars, however, such

Constables were to be considered only if they came into the

zone of consideration as per the seniority list and as the

respondent No.1 did not come into the zone of consideration

for promotion to the post of Head Constable in the years

1998, 1999 and 2000, he was not considered for such

promotion.

4. Aggrieved, the respondent no.1 filed Writ Petition No.

7929 of 2000 before the High Court and contended that

though as a Constable he had put in ten years of service

and was eligible for consideration for promotion, he has not

been considered for promotion since 1998. By the

impugned order, the High Court held that the respondent

no.1 was considered by the DPC for promotion in the year

1997 and was not found fit for promotion, but he has not

been considered for promotion in the years 1998, 1999 and

2000. The High Court further held in the impugned order

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that in the counter affidavit it was indicated that as per the

messages received from the Head Quarters, only Lance

Naiks had been considered for promotion, but such

consideration was not proper as under the rules, Constables

on completion of ten years of service were also eligible and

there was no justification to ignore the case of the

respondent no.1 for promotion to the post of Head

Constable in the years 1998, 1999 and 2000. Accordingly,

the High Court, by the impugned order, directed the

appellants to consider the case of respondent no.1 for

promotion from 1998 onwards.

5. We have heard Mr. A.S. Chandhiok, learned Additional

Solicitor General appearing for the appellants. No one has,

however, appeared for the respondents despite notice.

6. We find that under the relevant rules and circulars

issued by the Directorate General, CISF, Constables who

have completed ten years of service in the rank of Constable

including the service rendered in the rank of Lance Naik

prior to 10.10.1997, were eligible for promotion to the post

of Head Constable and also came within the zone of

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consideration, could only be considered for promotion to the

post of Head Constable. The case of the appellants in the

counter affidavit filed before the High Court was that the

respondent no.1, though eligible, did not come within the

zone of consideration for promotion to the post of Head

Constable in the years 1998, 1999 and 2000. The relevant

portion of the counter affidavit filed on behalf of the

appellants before the High Court is extracted hereinbelow:

"The DPC held in the years 1998, 1999 and

2000 for promotion to the rank of HC/GD had

considered the cases of L/Naiks upto PSL No.

9197, 9286 and 11704 respectively. Since the

petitioner is not holding the rank of L/Naik, he

could not come under the zone of

consideration for promotion to the rank of

HC/GD on the basis of his seniority in the

rank of Constable so far."

The aforesaid averments made in the counter affidavit filed

on behalf of the appellants before the High Court are

supported by circulars dated 21.01.1998, 07.01.1999 and

08.01.2000, copies of which are annexed to the Special

Leave Petition as Annexures P5, P6 and P7.

7. We, therefore, find that although the respondent no.1

was eligible for consideration for promotion to the post of

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Head Constable having completed ten years of service as

Constable, he could not be considered for promotion in the

years 1998, 1999 and 2000 on account of his lower position

in the seniority list of Constables and Lance Naiks, who had

been rationalized as Constables, were considered for

promotion because they had been placed above respondent

no.1 in the seniority list. The High Court has by impugned

order directed consideration of the respondent no.1 for

promotion to the post of Head Constable during the years

1998, 1999 and 2000 because it took the view that not only

Lance Naiks but also Constables who have put in ten years

service were eligible to be considered for promotion to the

post of Head Constable. The High Court has failed to

appreciate that, for consideration for promotion, a

Constable must not only be eligible, but also must come

within the zone of consideration and as per the circulars

dated 21.01.1998, 07.01.1999 and 08.01.2000 (Annexures

P5, P6 and P7 to the Special Leave Petition), the respondent

no.1, though eligible, did not come within the zone of

consideration for promotion to the post of Head Constable.

The High Court was, therefore, not right in issuing a

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direction in the impugned order to the appellants to

consider respondent no.1 for promotion in the post of Head

Constable for the years 1998, 1999 and 2000. (We may

mention here that the respondent no.1 has been considered,

in the meanwhile, and has been promoted as Head

Constable in the year 2000).

8. We accordingly allow this appeal and set aside the

impugned order of the High Court with no order as to costs.

.............................J.

(P. Sathasivam)

.............................J.

(A. K. Patnaik)

New Delhi,

October 20, 2011.