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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5852  OF 2014 (arising out of SLP(C) No.29792 of 2013)

U.O.I. & ORS.           … APPELLANTS

VERSUS

S.P.NAYYAR             … RESPONDENT

J U D G M E N T  

SUDHANSU JYOTI MUKHOPADHAYA, J

Leave granted.

2. This appeal has been preferred by the appellants against the  

order dated 21st August, 2012 passed by the Division Bench of the  

High  Court  of  Delhi,  New  Delhi  in  Writ  Petition  (Civil)  No.  

3004/2000.  By  the impugned judgment,  the Division Bench of  the  

High Court after going through the  relevant record including ACRs  

of respondent- S.P. Nayyar, opined that due to personal bias of his  

superior officer, E.N.Ram Mohan,  the respondent- S.P. Nayyar was  

targeted and was wrongly superseded  in the matter of departmental  

promotion  and  hence  allowed  the   writ  petition  filed  by  the  

respondent directing the appellants to promote the respondent as  

Additional DIG with back wages with the following observations:

“13. Under the circumstances, we allow the writ  petition and direct the petitioner to be promoted as  Addl.  DIG.  We  are  directing  petitioner  to  be  promoted and not a review DPC to  be held, for the  reason,  learned counsel for the  respondent does  not dispute that the bench mark to be achieved was 3  Very Good  grading in the ACR in the preceding 5  years and that the petitioner achieved the  bench  mark.  Admittedly,  there are no adverse entries  against  the  petitioner.   The  petitioner  had  not  suffered any penalty during the said 5 years period.

14. Needless to state, petitioner’s promotion  

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as an Addl. DIG would be with effect from the date  person immediately junior to the  petitioner  was  promoted.  We  note  that  as  an  Addl.  DIG,  the  petitioner  would  have  superannuated  on  31st July,  2007.  We direct petitioner to be paid wages for the  said  period,  notwithstanding  the  petitioner  not  having rendered actual services on account of the  apparent mala fide of the DG BSF. Needless to state,  pension of the petitioner would be re-fixed in the  grade  applicable  and  paid  accordingly.  All  consequential  benefits  will  also  flow.   The  petitioner  is  also  held  entitled  to  a  sum  of  Rs.11,000/- to be paid by the respondents towards  costs.  Necessary payment be made to the petitioner  within 12 weeks from today.”

3. The factual matrix of the case is as follows:-

The respondent –S.P. Nayyar joined the  Border Security Force  

(BSF)  as  an  Assistant  Commandant(Technical)  in  1971   and  was  

promoted as Deputy Commandant in the year 1981.  While in service,  

the  respondent  was  issued  Director-General’s displeasure  on  27th  

March, 1984 and 25th February, 1998 for not observing laid down  

procedure in disposal of condemned vehicles  and for irregularities  

in  fabrication of  recovery vehicles,  respectively.   

4. According to the appellants, as per paragraph 6.1.2. of the  

guidelines on the Departmental Promotion Committees and related  

matters  issued  vide  DOP&T  OM  dated  10.4.1989,   Departmental  

Promotion Committees (hereinafter referred to as ‘DPCs’ for short)  

have been empowered to enjoy full  discretion to devise their own  

method and procedure for objective assessment of the  suitability  

of candidates who are to be considered.  

5. The respondent was promoted as Second-in-command in 1990 and  

became  Commandant  (Ordinary  Grade)  on  9th February,  1993.  

Thereafter, the respondent became Commandant (as Ordinary Grade and  

Selection Grade got merged) with effect from 1st October, 1997.  On  

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25th January, 2000, the case of the respondent was considered for  

his promotion by selection to the Rank of Addl. DIG by the DPC  

constituted  for  such  purpose.  After  consideration,  the  name  of  

respondent, having not found fit, was not recommended by the DPC.   

6. Being aggrieved, the respondent filed Writ Petition (Civil)  

No. 3004 of 2000 before Delhi High Court challanging the decision  

of the said DPC.  He alleged that he fulfilled the criteria of  

having three ‘Very Good” out of five previous ACRs, yet persons  

junior to him were selected.    He imputed this to be malafide act  

of  Appellant  No.3  –  E.N. Ram  Mohan.   The  appellants  in  their  

counter affidavit denied the said allegations and brought to the  

notice of the High Court the service record, decision taken by DPC  

and reasons for not recommending the name of the respondent.  The  

High Court after perusal of the record, allowed the writ petition  

with the observation as mentioned above.   

7. Learned  counsel  for  the  appellants  made  the  following  

submissions to assail the judgment:

(a) The High Court was not right in directing  the appellants  

to grant promotion to the respondent rather than directing the  

appellants to reconsider the case under DPC; and

(b) The High Court without any evidence, adjudicated disputed  

issue of malafide acts alleged against the appellant no. 3 in writ  

jurisdiction while dealing with a service matter, particularly, in  

the case where allegation was made by a person who had vested  

interest in the allegation.

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8. Learned  counsel  for  the  respondent  submitted  that  the  

respondent was wrongly superseded in the matter of promotion from  

the rank of Commandant to the rank of Addl.DIG in the BSF  in the  

DPC held on 25th November, 2000 which considered the ACRs for the  

years 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99.  

It  was  submitted  that  the  ACRs  of  1994-95  and  1995-96,  

respondent was graded ‘Very Good’ by the Initiating Officer(IO)  

Reviewing Officer(RO) as well as Accepting  Authority(AO).  For the  

ACR  of  1996-97, the  respondent  was  graded  ‘Very  Good’  by  the  

Initiating Officer as well as Reviewing Officer, but the appellant  

no. 3- E.N.Ram Mohan  who was the Accepting Officer, down-graded  

the ACR as ‘Good’ without recording any reason.   However, the  

Director-General, BSF, undoing the damage, graded the respondent as  

‘Very Good’. It is further contended that  the  record produced  

before the High Court also revealed  that appellant no.3 –E.N. Ram  

Mohan  who took over as Director-General, BSF, down-graded ACRs of  

the respondent for the years 1997-98 and 1998-99 to ‘Good’ contrary  

to the grading given by Initiating Officer and Reviewing Officer  

that too without assigning any reason there for, contrary to the  

instructions dated 3rd December, 1991. The down-graded ACRs of the  

respondent  for  the  years  1997-98  and  1998-99  were  never  

communicated to him.

9. The bench-mark for promotion from the rank of Commandant to  

Addl. DIG is ‘Very Good’.  The bench-mark ‘Very Good’ has been  

defined in the instructions dated 6th February, 1991.  The sum and  

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substance of the said instructions is  that the DPC would grade an  

officer as ‘Very Good’  if atleast three of his five ACRs are ‘Very  

Good’  and   in  the  remaining  ACRs  under  consideration,   the  

performance is generally ‘Good’  and that there is no adverse entry  

in any of the five ACRs  under consideration.

10. According  to  the  learned  counsel  for  the    respondent,  

despite the two wrong down-graded and un-communicated ACRs for the  

years  1997-98 and 1998-99, the respondent fulfilled the bench-

mark,  having ‘Very Good’ in three ACRs for the years 1994-95,  

1995-96, 1996-97 and ‘Good” in his remaining two ACRs  and there is  

no  adverse  entry  against  him  in  any  of  the  five  ACRs  under  

consideration. However,  despite  the aforesaid,  the DPC held on  

25th November, 2000, which was presided over by the appellant no. 3  

–E.N. Ram Mohan graded the respondent as ‘Good” as against the  

‘Very Good’, resulting  into supersession of the respondent to the  

rank  of  Addl.  DIG  depriving  the  respondent  of  well-deserved  

promotion.

11. After   giving  our  careful  consideration  to  the  facts  and  

circumstances of the case and submissions made by learned counsel  

for the parties, we are of the view that High Court was wrong in  

holding that the respondent was targeted due to the personal bias  

of appellant no. 3 -E.N Ram Mohan.  The High Court was also not  

justified in directing the authorities to promote the respondent to  

the post of Addl. DIG.

12. It  is  settled  that  High  Court  under  Article  226  of  the  

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Constitution of India cannot sit in appeal over the assessment  

made by the DPC.  If the assessment made by the DPC  is perverse  

or is not based on record  or proper record has not been considered  

by the DPC,  it is always open to the High Court under Article 226  

of  the Constitution to remit  the matter back   to the DPC for  

recommendation,  but the High Court cannot assess the merit on its  

own,   on  perusal  of  the  service  record  of  one  or  the  other  

employee.

13. The selection to the post of Addl. DIG is based on merit-cum-

suitability  which  is  to  be  adjudged  on  the  basis  of  ACRs  of  

different candidates. The merit position can be adjudged by the  

Selection Committee on appreciation of their Character Roll.  In  

absence of the Character roll of other candidates,  who were also  

in the zone of promotion,  it is not open to the High Court to  

assess the merit of one individual who moves before the High Court,  

to give a finding whether he comes within the zone of promotion or  

fit for promotion.  

14. The bias and malafide acts can be adjudged only on the basis  

of evidence.  The assessment of Character Roll by one or the other  

officer,  giving a general grade such as ‘Good’  cannot be the sole  

ground to hold that the officer was biased against the person whose  

Character Roll is assessed.   In the instant case, there is nothing  

on record to suggest that the appellant no. 3 –E.N. Ram Mohan was  

biased against the respondent. Merely because he assessed the ACR  

of the respondent as ‘Good’ as against assessment of ‘Very Good’  

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made by I.O. it cannot be said that he was biased against the  

respondent.

15. The Departmental Promotion Committee consists of a Chairman  

and the members.  Even if bias is alleged against the Chair-person,  

it cannot be presumed that all the members of the Committee were  

biased. No ground has been made out by the respondent to show as to  

why the assessment made by the DPC is not to be accepted. The High  

Court failed to notice the aforesaid fact and wrongly discarded the  

assessment made by the D.P.C.   

16. It is also settled that the High Court under Article 226 can  

remit the matter for reconsideration if a person was not properly  

considered for a promotion for which he was eligible.  But it  

cannot  direct  to promote a  person  to the  higher  post,  without  

giving a plausible ground.  

17. For the reasons as aforesaid, we cannot uphold the findings of  

the judgment dated 21st August, 2012 passed by the High Court of  

Delhi and the same is accordingly set aside.   

18. The appeal is allowed.

..........................J.                 (SUDHANSU JYOTI MUKHOPADHAYA)

..........................J.  (KURIAN JOSEPH)   

NEW DELHI, JUNE 30,2014.

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