RAKESH KUMAR CHAUHAN Vs. UNION OF INDIA
LAWS(J&K)-2020-2-89
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 27,2020

Rakesh Kumar Chauhan Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.)In the instant petition, the petitioner has prayed for following reliefs:-
i) to quash communication addressed by Commandant Staff (E-1) dated 16.01.1997 entering adverse remarks to the ACR of the petitioner.

ii) to quash Memorandum No.1-17012/(13)/RKKC/ACR Cell- 2006-40-46 dated 14.02.2007 issued by the office of DG ITBP.

iii) to quash Order dated 13.05.2008 by virtue of which the respondent No.8 has been ordered to be promoted over and above the head of the petitioner.

iv) to direct the official respondents to accord consideration to the petitioner for his promotion from the rank of Assistant Commandant (Engineer) to the post of Dy. Commandant (Engineer) with effect from 2001 when his junior Sh. R.P.Joshi was promoted against the said rank and with a further prayer to direct the consideration of the petitioner for his promotion to the rank of Commandant (Engineer) when his junior Sh. R.P.Padaulia was ordered to be promoted vide order dated 13.05.2008 and restore him the seniority over and above his juniors with a further direction to the respondents to restrain from promoting any junior officer to the petitioner to the rank of Commandant (Engineer) in the event of DPC being held after the filing of the present petition.

(2.)The factual antecedents leading to the filing of instant petition briefly put, are as under :-
(3.)The petitioner was appointed as Sub Inspector (Overseer) in ITBP in the year 1988. As Sub Inspector he served in different Battalions at different places in the country. While in service of ITBP, he responded to the Advertisement Notification issued by the respondents for filling up the post of Assistant Commandant (Engineer). The petitioner secured first rank in the selection and was appointed as Assistant Commandant (Engineer) in the year 1991 and posted in 3rd Battalion at Leh (Central Sector). Because of adverse remarks recorded in his ACR, for the period w.e.f. 01.04.1995 to 07.12.1995, the petitioner despite being senior was not promoted as Deputy Commandant in the year 2001. He was, however, promoted to the rank of Deputy Commandant (Engineer) on 08.10.2003 and served as such at different locations in different Battalions of ITBP. In the month of February, 2005, the petitioner was detailed by IG Headquarters to look after the duty of Engineer incharge of Telecom Bn Shivpuri. In compliance to the orders of the IG Headquarters, the petitioner claims that he proceeded to Telecom Bn. Shivpuri (MP) and thereafter, he proceeded on earned leave and after availing earned leave reported at Leh on 26.04.2005 and resumed his duties on 03.05.2005. It is alleged by the petitioner that when he reported at Leh, it was found that that the renovation work of office of DIG(LDK) was nearing its completion, that too, without formal sanction of the competent authority. The work was carried out by respondent No.8 and Sub Inspector (O) Shri Raj Kumar Nirankari, but, the respondent No.6 directed the petitioner to process the bills in work head. The petitioner claims that he brought this matter to the notice of the superior officer, the then Commandant, i.e., respondent No.5. The respondent No.5, accordingly wrote a letter to the DIG (LDK) conveying the latter that the work executed has not been approved in the action plan, as such, the bills could not be processed. It is submitted that respondent No.6, instead of appreciating conduct of the petitioner, took it otherwise and this is how he started nourishing grudge against him. The petitioner further claims that during his posting in Leh, he executed multiple works to the satisfaction of his superiors and, therefore, there was no occasion for anybody to point finger about the work and conduct of the petitioner, but, the petitioner was shocked to receive a Memo from ACR Cell bearing Memo No. 1-17012/(13)/RKC/ACR Cell-2006- 40-46 dated 14.02.2007 whereby the petitioner was conveyed the adverse remarks contained in his ACR for the year 2005-2006, precisely, for the period 01.04.2005 to 02.10.2005. The petitioner represented to the DG, ITBP vide his letter dated 10.03.2007 and brought it to the notice of the latter, his work performance and requested for expunging the adverse remarks recorded in his ACR for the year 2005- 2006. The DG ITBP took cognizance of the representation of the petitioner and invited comments from the respondent No.5. It is the allegation of the petitioner that initially favourable remarks were submitted by the respondent No.5, but, later on under some pressure, he changed his remarks. The DGP did not agree with the explanation tendered by the petitioner and rejected the representation of the petitioner on the grounds that the same was devoid of any merit. The petitioner also moved the representation before the Ministry of Home Affairs, which too met the same fate. Because of the adverse remarks, the petitioner could not qualify for promotion to the post of Commandant (Engineer) whereas the Deputy Commandant (Engineer) junior to him, i.e., respondent No.8 got the promotion in May, 2008. It is this recording of ACR and denial of promotion to the post of Commandant, the petitioner is aggrieved of and has filed this petition seeking inter alia the reliefs noted hereinabove in the beginning of this judgment.
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