UNION OF INDIA Vs B.S. DARJEE
Bench: P. SATHASIVAM,A.K. PATNAIK
Case number: C.A. No.-003692-003692 / 2006
Diary number: 6979 / 2005
Advocates: SUSHMA SURI Vs
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3692 OF 2006
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
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.
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