IN WP (C) 8135 OF 2019 - DEL HC- Assistant Commandant at 66th Battalion of BSF case stood deferred for promotion in 2014 and 2015 due to pendency of ‘Record of Evidence’ and having been given clean chit, he deserves to get promotion from the date it actually became due to him: Delhi High Court
Justice Suresh Kumar Kait and Justice Neena Bansal Krishna [14.07.2023]

Read More : Rajdeep Chowdhary v. Union Of India

Simran Singh

New Delhi, July 14, 2023: While dealing with the question whether the petitioner (Assistant Commandant at the 66th Battalion of Border Security Forces-BSF) could be deprived of the promotion due to Director General (DG) of BSF’s ‘displeasure’, especially when the charge framed against him had been recommended to be set aside, the Delhi High Court allowed the appeal preferred by the petitioner challenging Show Cause Notice vis-a-vis an FIR under Section 8, 221, 29 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) which was registered alleging that four civilians in Jaisalmer City were arrested with 8 kg heroin and Rs.4.35 lacs of Indian currency which was smuggled from Pakistan during intervening night of 04.08.2012 to 05.08.2012, alleging that the petitioner had failed to exercise proper border domination in AOR.

The Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishnaperused the Minutes of Departmental Promotion Committee (DPC) Meeting dated 19.02.2014 and 19.02.2015, wherein the reason for keeping petitioner’s case pending was mentioned as ‘pendency of Record of Evidence (ROE)’ and not ‘displeasure’.

The Bench opined that the petitioner was first given clean chit in the year 2012 itself. However, disciplinary action commenced against the petitioner on 06.08.2013 and the DIG in view of evidence led, prepared the remarks dated 09.04.2015 that no evidence emerged against the petitioner. A perusal of copies of minutes of the DPC dated 19.02.2014 as well as next DPC convened on 19.02.2015, revealed that his case had not been considered for promotion due to remarks ‘Due to pending ROE’.

In the matter at hand, the petition had been filed for quashing of the Show Cause Notice and the order issued by Union of India (UOI). The petition had further sought directions to the UOI to promote him from the post of Assistant Commandant at the 66th Battalion of BSF to the post of Deputy Commandant w.e.f. 01.04.2014 with all consequential benefits.

The inquiry conducted by the Presiding Officer in the NDPS Case stated that the evidence available on record was totally circumstantial, the main accused was at large and there was nothing to point out negligence or laxity on part of individuals on duty. The Deputy Inspector General (DIG) SHQ, BSF had stated that the investigation was complete and no one was to be blamed till the time investigation was complete or the incident was confirmed by the police.

Consequently, the Special Director General (DG) (West), BSF recommended that disciplinary action be taken against the petitioner and Sub Inspector Gopal Dass, who was the then senior most platoon officer. Chargesheet was issued under Section 40 of the Border Security Force Act, 1968(BSF Act) alleging that the petitioner had failed to exercise proper border domination in AOR as a result whereof, crossing of 8 kg heroin and Rs.4.35 lacs of Indian Currency took place on the aforementioned day. The DIG after analysing the evidence observed that no evidence emerged to substantiate the charge prepared against the petitioner.

The grievance raised by the petitioner in the present petition was that despite the afore-noted remarks, he was served with a Show Cause Notice dated 12.05.2016 by the DIG, whereby he conveyed DG’s ‘displeasure’to the petitioner. Vide letter dated 18.05.2016,  petitioner requested the authorities concerned to furnish him copies of Record of Evidence (ROE) and Additional Record of Evidence (AROE) along with other documents to enable him to file reply to the aforesaid show cause notice. In response thereto, the respondents had provided him copy of ROE and AROE, however, copy of remarks/recommendations of senior officers were not supplied to him. Vide his reply dated 05.06.2016, petitioner conveyed the DG that despite there being no implication by him directly or indirectly, ROE was initiated against him and he was subjected to untold miseries and agonies. Thus, prayed for an acquittal of the charge.

Petitioner vide his letter dated 24.06.2016 requested the DG (BSF) that his promotion was due on 01.04.2014 as per the recommendations of the DPC held in November, 2013 and was entitled to promotion.

The Bench stated that vide Show Cause Notice dated 12.05.2016 by the DIG, petitioner was conveyed DG’s ‘displeasure'. The petitioner, vide his reply dated 05.06.2016 to the aforesaid Show Cause Notice dated 12.05.2016, conveyed the DG that there was no direct or indirect implication against him in the FIR in question. However, vide order dated 22.07.2016, the DIG rejected petitioner’s request dated 24.06.2016 conveying him DG’s ‘displeasure’.

“Considerably, when petitioner was conveyed ‘displeasure’ by the Show Cause Notice dated 12.05.2016 and his request dated 24.06.2016 was turned down by DIG, the OM dated 27.03.2015 had already been notified, which states that ‘displeasure’ is not a penalty enlisted in Rule 11 of the CCS (CCA) Rules, 1965. Moreover, in the minutes of meetings held on 19.02.2014 and 19.02.2015, against the name of petitioner, ‘displeasure’ has not been mentioned. It is also not the case of respondents that petitioner’s APARs were below Bench mark in the years 2014 and 2015 which would curtail his right to promotion.”

The Bench stated that considerable role was played by the DPC while evaluating the case of candidates for promotion. “Not only the APARs for the relevant years but also the overall work, performance and diligence of a candidate has also to be borne in mind, especially in a case where a candidate is being ignored and his/her juniors are given promotion.”

The Court noted that the petitioner was considered for promotion in the DPC held on 26.09.2016 for the vacancy year 2016-17 and was promoted on 06.11.2016. Thus, it was opined that petitioner’s case stood deferred for promotion in the years 2014 and 2015 due to pendency of ROE and having been given clean chit, he deserved to get promotion from the date it actually became due to him.

In view of above-said, the petition was allowed and the Show Cause Notice dated 12.05.2016 and order dated 22.07.2016 conveying ‘displeasure’ by the respondents, were set aside. “This Court is informed that petitioner has already been promoted to the post of Deputy Commandant on 06.11.2016. Consequently, a direction is issued to the respondents to convene a review DPC within four weeks to consider the case of petitioner subject to fulfilment of other eligibility criteria prevalent in the year 2014. Needless to say, if petitioner fulfils the criteria, he shall be promoted from the post of Assistant Commandant to the post of Deputy Commandant w.e.f. 01.04.2014 i.e. the date his juniors have been promoted, with all consequential benefits.”