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M.SHASHIKANTH versus UNION OF INDIA

High Court of Madras

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M.Shashikanth v. Union of India - WP.No.7929 of 2005 [2007] RD-TN 1262 (3 April 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated:- 03.04.2007

Coram:-

The Honble Mr. Justice P.SATHASIVAM

and

The Honble Mr. Justice S.TAMILVANAN

Writ Petition No.7929 of 2005

M.Shashikanth .. Petitioner Vs.

1.The Union of India,

rep. by the Director General,

Central Industrial Security Force

Headquarters, 13, CGOs Complex,

Lodhi Road, New Delhi-110 003.

2.The Assistant Inspector General (PERS),

Office of the Director General,

CISF, 13, CGOS Complex,

Lodhi Road, New Delhi-110 003. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the order Nos.E-31013(2)/1/2003/Pers.II 1497 dated 6.8.2003 issued by the second respondent, quash the same inasmuch as it denies senior time scale of pay to the petitioner retrospectively as illegal and unconstitutional and consequently direct the respondents to grant senior time scale of pay to the petitioner from the date of his junior Ganga Shankar was granted with effect from 06.05.2002, with all arrears of pay and consequential benefits. For petitioner : Ms.R.Vaigai For Respondents : Mr.Patty B.Jaganathan

ORDER



P. SATHASIVAM, J. Aggrieved by the order of the second respondent-Assistant Inspector General (PERS), Office of the Director General, CISF, 13, CGOS Complex, Lodhi Road, New Delhi-110 003, dated 6.8.2003, granting Senior Time Scale of Pay with effect from 22.07.2003, the petitioner-M.Shashikanth has filed the above writ petition to quash the same, inasmuch as it denies Senior Time Scale of pay to him retrospectively, as illegal and unconstitutional and consequently direct the respondents to grant Senior Time Scale of pay to him from the date of his junior Ganga Shankar, who was granted the same with effect from 06.05.2002, with arrears of pay and consequential benefits.

2. The case of the petitioner is briefly stated hereunder: According to the petitioner, he was appointed as an Assistant Commandant in Central Industrial Security Force with effect from 04.09.1997, having been selected through the Civil Services Examination in 1996. Thereafter, he was initially posted to KAPS, Kakrapar (Gujarat) and then to 8th Reserve Battalion, Kishthwar, (Jammu & Kashmir). Later, he was sent to undergo Battalion Support Weapon (Officers') Course at Infantry School, Mhow, Madhya Pradesh, between 25.10.2001 to 08.12.2001. While undergoing such training, according to him, his father fell seriously ill and, on 21.11.2001, he developed heart problem leading to hospitalisation in the emergency care unit. Since his mother, brother and sister had gone to U.S.A., there was no one in the family to attend his father and he rushed to Hyderabad. Thereafter, he contacted the directing staff of the Infantry School on telephone to seek permission to proceed on leave, but the same was refused. In view of the emergent situation, he left for Hyderabad on 22.11.2001 without the permission of the competent authority. He tried to contact the authorities even from Hyderabad, but did not succeed. Later on 24.11.2001, he sent a letter to the Group Commander BHW (O), informing him of the compelling reasons due to which he had to leave from the Infantry School.

3. When the petitioner reported back at the Infantry School on 08.12.2001, he was not allowed to join. He explained that his absence was not wilful and was under the circumstances beyond his control. On 08.07.2002, an adverse remark was communicated to him and it was noted in the Confidential Reports for the period from 29.09.2001 to 31.3.2002. The report stated that his absence between 22.11.2001 and 13.12.2001 was a shortcoming. He was informed that he can make representation against the adverse remarks.

4. On 20.08.2002, the first respondent-Director General, CISF Headquarters, passed an order granting Senior Time Scale of Pay of Rs.10,000-325-15200 to 126 Assistant Commandants, who are then in the pay scale of Rs.8000-275-13500, consequent upon having completed 4 or 6 years regular service and on being found fit in the Departmental Promotion Committee Meeting held on 29.07.2002. Many of his batchmates and even juniors to the petitioner were granted Senior Time Scale of Pay, but the same was not extended to him. On 21.09.2002, he made a representation against the denial of the Senior Time Scale and requested to extend the same benefit to him.

5. On 12.12.2002, the first respondent accepted the explanation of the petitioner for his absence and recorded that in view of the justification given for his absence, a lenient view was taken and he was warned to be careful in future. This was followed by an order dated 05.02.2003 issued by the second respondent, expunging the aforesaid adverse remarks. Inspite of the adverse remarks being expunged, he was not granted the Senior Time Scale. Therefore, he represented on 21.04.2003, requesting to grant the Senior Time Scale of pay at the earliest. In the mean while, he received commendations for his performance by letter dated 23.04.2003, issued by the second respondent. The first respondent also issued a similar commendation letter on 06.05.2003. On 06.08.2003, the first respondent issued an order granting Senior Time Scale of Pay to him with effect from 22.7.2003. Since he ought to have been given the Senior Time Scale of Pay with retrospective effect i.e., from the date on which such scale of pay were granted to his juniors, he sent a representation to the the Director General, CISF, which was forwarded to the first respondent by Senior Commandant, 8th RESBN(K) by a letter dated 28.10.2003. By order dated 29.12.2003, the petitioner was communicated about the rejection of his representation by the second respondent. He made further representation on 20.01.2004, which was also rejected on 06.04.2004 and another order to the same effect was issued to him on 26.04.2004. Denial of Senior Time Scale of pay to to the petitioner in time, has not only put him in monetary loss, by loss of higher payment for one year, but also in loss of one increment as his juniors had already enjoyed the Senior Time Scale for more than a year. Thus the impugned order caused grave monetary loss to him, besides placing him in a disadvantageous position in comparison to his juniors for no valid reason. Hence, the present writ petition.

6. One P.Sreekrishnan, Senior Commandant , CISF Unit, APSU, Chennai, filed a counter affidavit on behalf of the respondents. It is stated that the case of the petitioner for grant of Senior Time Scale of Pay with effect from 06.05.2002 along with other eligible Assistant Commandants was considered in the Departmental Promotion Committee Meeting (hereinafter referred to as "the DPC Meeting") held on 12.03.2003. The petitioner was assessed "UNFIT" on the basis of the entries found in the Service Records/Annual Confidential Records. However, his case for grant of Senior Time Scale of pay was reviewed in the DPC Meeting held on 22.07.2003 and he was granted STS with effect from 22.07.2003 i.e. the date on which the DPC was convened. Though the adverse remarks recorded in the ACR regarding desertion of the petitioner from BSW course at Infantry School, Mhow, were expunged by order dated 05.02.2003, the warning, given by DG/CISF on 12.12.2002 regarding petitioner's wilful desertion from the said course still remained. All his representations were duly examined and results were intimated to him.

7. In the light of the above pleadings, we heard Ms. R.Vaigai, learned counsel for the petitioner, and Mr. Patty B.Jeganathan, learned counsel for the respondents.

8.The only point for consideration in this writ petition is whether, even after expunging the adverse remarks on 05.02.2003, the respondents are justified in not granting Senior Time Scale of Pay to the petitioner with effect from 22.07.2003, when his immediate junior Ganga Shankar was granted the Senior Tamil Scale of Pay in the year 2002 itself.

9. In view of the narration of details in the earlier paragraphs, there is no need to refer the same once again. The main grievance of the petitioner is that when the first respondent passed an order, granting Senior Time Scale of Pay to 126 Assistant Commandants, on their having completed 4 or 6 years of regular service and on being found fit in the Departmental Promotion Committee Meeting held on 22.07.2002, the petitioner alone was not considered for grant of Senior Time Scale of pay. Based on the adverse entry viz., warning given on 12.12.2002, by DG/CISF for deserting Infantry School, Mhow, on 22.11.2001, without intimation/permission while deputed to undergo Bn. Support Weapon officer's Course, he was assessed "UNFIT". In this regard, it is relevant to note that, after coming to a conclusion that no one was with his father, who was bed ridden, the petitioner left for Hyderabad in the early hours on 2.11.2001 without permission of the competent authority, for which an adverse remark was entered in the confidential report for the period from 29.09.2001 to 31.03.2002. The report stated that his absence between 22.11.2001 and 13.12.2001 was a shortcoming.

10.Ms.R.Vaigai, the learned counsel for the petitioner has contended that the circumstances beyond the control of the petitioner made him to leave the training without prior permission and that he also made a detailed representation to the Director General, CISF in that regard. By proceedings dated 12.12.2002, the Director General, CISF, accepted his explanation and, taking note of the fact that he is a young officer, who has a long way to go, warned him to be more careful and circumspect in future. The proceeding is available at page 16 of the additional typed set of papers filed by the petitioner. The learned counsel brought to our notice that based on the adverse remarks made against the petitioner, which was communicated by proceedings dated 08.07.2002 and recorded in his Annual Confidential Report, the petitioner submitted his representation dated 17.08.2002 praying for expunging adverse remarks. The Inspector General/North Sector, CISF, (Ministry of Home Affairs), New Delhi, by his proceedings dated 05.02.2002, after careful consideration of the facts, expunged the adverse remarks recorded in his Confidential Report. The following conclusion of the proceedings of the Inspector General, CISF dated 05.02.2003 being relevant, is extracted hereunder: "On careful consideration of the facts of the case and the contention made by the officer, I am of the view that the circumstances necessitating the officers flight from the infantry training school at Mhow were grave, requiring his immediate presence at the side of his ailing father. As a young officer his performance as such, in militancy prone area in J&K has been of a high standard and as he has also sought pardon for his conduct which led to the endorsement of the adverse remarks. Therefore keeping in view the aforesaid Shri M.Shashikant, AC is hereby advised to refrain from such conduct in future and the adverse remarks recorded in his confidential report at Para 4 of part V for the period from 21.09.2001 to 31.03.2002 that "the officer remained AWL from 22.11.2001 to 13.12.2001 from the BSW course at infantry school" are hereby enpunged."

11.The above intimation makes it clear that after taking into account the various aspects, viz.,circumstances necessitating the officer's flight from the Infantry Training at Mhow were grave and his performance in militancy prone area in J&K has been of a high standard and also of the fact that his immediate presence on the side of his ailing father was required, the adverse remarks recorded in his Confidential Report for the period from 21.09.2001 to 31.03.2002, had been expunged. As rightly pointed out by Ms.R.Vaigai, learned counsel for the appellant, as the abovesaid order came to be passed as a follow up action on the order of the Director General dated 12.12.2002 and all the adverse remarks for the relevant period i.e. 21.09.2001 to 31.03.2002 had been erased from the Confidential Report, it is but proper on the part of the respondent to grant Senior Time Scale of pay along with his batchmates i.e. with effect from 06.05.2002.

12.On verifying the proceedings of the Director General, CISF, dated 12.02.2002 as well as the proceedings of the Inspector General/ North Sector, CISF, New Delhi, dated 05.02.2003, we are of the view that the adverse remarks relating to desertion of Infantry School, Mhow, on 22.11.2001, without intimation or permission, which was the basis for assessment (unfit) were completely erased and no adverse remarks were available for the relevant period to deprive the Senior Time Scale of pay on par with 126 Assistant Commandants to the petitioner.

13.Though Mr.Patty B.Jeganathan, learned Additional Central Government Standing Counsel appearing for the respondents, commented that the petitioner, being member of a disciplined force, in view of "warning" as per proceedings of the Director General, CISF dated 12.12.2002, the respondents are justified in not considering his case for Senior Time Scale of Pay in the year 2002 and he was rightly granted the same on 22.07.2003. We are unable to accept the said contention for the following reasons. The only charge against the petitioner was that he had deserted the Infantry School, Mhow, on 22.11.2001 without intimation/permission while deputing him to undergo Battalion Support Weapon Officer's Course. When this was entered in ACR, admittedly, the petitioner made a representation against the said adverse remarks. As stated earlier, by proceedings dated 05.02.2003, the Inspector General, CISF, expunged the adverse remarks and after the said decision, the petitioner cannot be penalised mentioning the erased adverse remarks found place in the confidential Report. Though in the order dated 12.12.2002, the petitioner was "warned", in view of the subsequent order dated 05.02.2003, expunging the adverse remarks viz., absented from 21.11.2001 to 31.03.2002 without intimation/ permission, the warning cannot be put against him while considering for grant of Senior Time Scale of pay.

14. Apart from the above aspects Ms.R.Vaigai, learned counsel for the petitioner has also brought to our notice that it is not in dispute that the petitioner had received commendations for his performance by letters dated 23.04.2003 and 06.05.2003 issued by the second respondent and the first respondent respectively. Those letters are available at pages 21 and 22 of the typed set of papers.

15. The learned counsel appearing for the petitioner, by drawing our attention to the instructions to be followed in the case of Central Government Officers with regard to review of Departmental Promotion Committee, contended that where adverse remarks in the ACRs were toned down or expunged after the DPC had considered the case of the officer, it is but proper to convene the review DPC to rectify the same. The above instruction further shows that in the case where the adverse remarks were toned down or expunged subsequent to consideration by the DPC, the appointing authority should scrutinize the case with a view to decide whether or not a review by the DPC is justified, taking into account the nature of the adverse remarks toned down or expunged. It further shows that while considering a deferred case, or review of the case of a superseded officer, if the DPC finds the officer fit for promotion/confirmation, it would place him at the appropriate place in the relevant select-list/list of officers considering fit for confirmation or promotion after taking into account the toned down remarks or expunged remarks and his promotion and confirmation will be regulated. It further shows that if any junior to the officer concerned has been promoted, he should be promoted immediately and if there is no vacancy, the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under FR 27 at the stage he would have reached, had he been promoted from the date on which the officer immediately below him was promoted, but no arrears would be admissible.

16. Though we are conscious of the fact that the above mentioned procedures are applicable to the Central Government Officers, as rightly pointed out by Ms.R.Vaigai, learned counsel for the appellant, nothing wrong in applying the principle therein. In other words, as rightly pointed out, after expunging the adverse remarks, it is incumbent on the authority concerned/DPC to review the case of the petitioner and award appropriate relief.

17. It is also brought to our notice that the case of the petitioner had been dealt with wrongly by the respondents, for, even when the first DPC meeting held on 12.03.2003, the adverse remarks expunged on 05.02.2003 itself. It is also brought to our notice that the respondents have taken Annual Confidential Reports for the period from 1996-1997, when the petitioner had not even entered in to service (he was appointed only on 04.09.1997).

18. Ms.Vaigai, learned counsel for the appellants also relied on the decision reported in 1990 (Supp) Supreme Court Cases 4 ( U.P. STATE ELECTRICITY BOARD AND ANOTHER VS. KHARAK SINGH AND ANOTHER), wherein the Honourable Supreme Court has held that when adverse entries are expunged, the claim of the officer is to be considered from the date when his case was first considered by the Selection Committee.

19. In the decision reported in 1999 (1) Supreme Court Cases 241 (U.P.JAL NIGAM VS. S.C. ATRI AND ANOTHER), the Honourable Supreme Court, while considering the fact of expunging the adverse entry subsequently based on his representation, has concluded as follows: "The effect of the order allowing the expunction of the adverse entry would be that on the date on which he was considered for promotion to the post of Superintending Engineer, there existed no adverse entry in his character roll. Subsequently, it cannot be said that the respondent was not promoted on account of his unsuitability. That being so, the High Court was justified in ordering that the respondent on being promoted, though subsequently, shall be entitled to reckon his seniority with effect from the date on which a person junior to him was promoted to the post of Superintending Engineer."

20. As stated earlier, here again, we are conscious of the fact that the above decisions were rendered in the case of civil servants. However, the principles laid down therein are applicable to the case on hand. Whatever benefits legally available to the petitioner, the same cannot be denied to him, when admittedly the entire adverse remarks were expunged by the higher authority and the same was available at the time of consideration.

21.We are of the view that once the adverse remarks have been expunged by the competent authority reviewing the petitioner's case on par with his juniors, he should have been granted Senior Time Scale of pay with effect from the date his immediate junior i.e. Ganga Shankar was granted the same in the year 2002. We are also satisfied that the reason given by the respondents that the petitioner was found unfit due to the entries in the Annual Confidential Reports for the period 1996-1997, 2001-2002 is irrational and arbitrary. As observed earlier, the petitioner had not even entered the service in the year 1996, since he joined only on 04.09.1997. As rightly pointed out by the learned counsel for the petitioner, the impugned order suffers from non application of mind.

22. In the light of the above discussion, the impugned order dated 06.08.2003 issued by the second respondent granting Senior Time Scale of pay with effect from 22.7.2003 is quashed and the respondents are directed to grant Senior Time Scale of pay to the petitioner from the date viz., 06.05.2002, when his junior Ganga Shankar, was granted the same with effect from 06.05.2002 with all arrears of pay and consequential benefits. The order shall be complied with, within a period of four weeks from the date of receipt of a copy of this order.

23. With the above direction, the writ petition is allowed. No costs. raa

To

1.The Director General, Union of India,

Central Industrial Security Force

Headquarters, 13, CGOs Complex,

Lodhi Road, New Delhi-110 003.

2.The Assistant Inspector General (PERS),

Office of the Director General,

CISF, 13, CGOS Complex,

Lodhi Road, New Delhi-110 003.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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