Can promotion be denied based on adverse confidential reports which were never conveyed to the employee, depriving of opportunity to representation? SC answers

Supreme Court: In a civil special leave petition by a former Commandant with the Border Security Force (BSF) who was denied promotion to the post of Deputy Inspector General (DIG) from the date his juniors were promoted, the three-Judge Bench of Surya Kant, Dipankar Datta, and Ujjal Bhuyan, JJ. allowed the appeals, directing the respondents to consider his case afresh. The Court held that the appellant shall be entitled to all the consequential benefits, including further consideration for promotion to a higher rank in accordance with the rules and regulations/criteria prescribed by the competent authority within three months.

Background

A Summary Court of Inquiry was held against the Commandant/ appellant and an order of displeasure was conveyed with a show cause notice calling upon him to explain why he should not be asked to resign in terms of Rule 20 of the Border Security Force Rules, 1969 read with Section 10 of the Border Security Force Act, 1968. Thereafter, in 2009, an order was passed terminating the Commandant from service with pensionary benefits.

These actions were challenged by the appellant through various writ petitions filed in the Delhi High Court. The High Court set aside the authority’s order and directed that appellant be considered for promotion to the next higher post on the basis that he was not terminated from service with all consequential benefits and seniority, including arrears of pay. His promotion will relate back to the date on which his juniors were promoted.

Regarding his claim for promotion to the rank of Deputy Inspector General (DIG) from the date his juniors were promoted, followed by subsequent promotions, no effective relief was granted to him. This prompted the appellant to initiate contempt proceedings before the High Court. The High Court directed the BSF authorities to reconsider the matter and file an additional affidavit. The respondents took the plea that the appellant was found fit for promotion to the rank of DIG for the vacancy year 2016-2017, whereas the appellant claimed that he was entitled to be promoted against the vacancy year 2008-2009, i.e., when his juniors were allegedly promoted.

Decision

Perusing the BSF’s affidavit filed before the High Court, the Court noted that the claim of the appellant for promotion from the due date, namely, when his juniors were promoted, was turned down based on some adverse confidential reports, termed as “below benchmark,” pertaining to the following years: 2002-2003, 2006-2007 and 2007-2008. The Court pointed out that these adverse reports were never conveyed to the appellant till the High Court directed to do so vide its interim order dated 17-12-2021.

The Court said that since the adverse confidential reports were never conveyed to him on time, it deprived him of the opportunity to submit a representation against such adverse comments or to improve wherever he was found to be deficient in terms of those Annual Confidential Reports (ACRs).

Hence, the Court pointed out that the appellant was dealt with unfairly in the matter of consideration of promotion to the rank of DIG from the due date. The Court reiterated that adverse reports that have not been communicated cannot be acted upon for the purpose of denying promotion.

The Court held that the appellant’s claim for promotion to the rank of DIG from the due date, of promotion of junior colleagues, required fair reconsideration by ignoring all such adverse ACRs which were not conveyed to him within a reasonable period. The Court noted that the ACRs for the years 2002-2003, 2006-2007, and 2007-2008 were not communicated to the appellant within a reasonable time, which could enable him to make an effective representation against those adverse comments. Hence, all three reports were liable to be ignored while considering the claim of the appellant for promotion to the rank of DIG.

Opining that the appellant deserved an effective relief at the earliest as he had already retired from service on superannuation, the Court allowed the appeals and directed the respondents to reconsider the claim of the appellant for promotion to the rank of DIG with effect from the date when his juniors were promoted, after ignoring the adverse reports for the years 2002-2003, 2006-2007 and 2007-2008.