WA 43(SH)/2010 - Gauhati High Court

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10 through the same, we find that the essential eligibility of the candidates for promotion from Assistant Commandant to Deputy Commandant prescribed in the schedule to the Rules which was said to have followed thus:- “Essentials (a) Should have minimum qualifying service of six yeas as Assistant Commandant. (b) Should bhe medically fit. (c) Should have high average record of service and be recommended for promotion during he last 5 years, two ACR should have been earned in Assam Rifles bn during the last 5 years. (d) Should not have been awarded punishment under the Army Act or penalty under the CCS(CCA) Rules 1985 or conviction by a criminal court for gross misconduct involving moral turpitude. (e) Should have passed departmental promotion examination Part-X.” On perusal of the DPC minutes , we find that the petitioner‟s name was also in the zone of consideration for promotion to the post of Deputy Commandant alongwith other eligible candidates. Para 8 of the minutes shows that the recommendation of the DPC in respect of the appellant petitioner was kept in „sealed cover‟ and the DPC observed thus:- “10. Finding of DPC in respect of Assistant Commandant T.C.Rana and Assistant Commandant M.N.Bhardwaj have been placed in sealed cover in view of the departmental enquiry pending against them.” The above DPC observation makes it clear that a departmental enquiry was pending against the appellant petitioner at the relevant time and as a result recommendation for his promotion was kept in sealed cover. The further observation in the DPC minutes is that the integrity of the appellant petitioner alongwith ten other candidates who were in the zone of consideration were found to be without any
11 doubt. The internal assessment made by DPC in respect of ACR of the petitioner for 5 years shows that he was categorised high average and his rating scale was 6 or 5 and that category was fit for promotion. It was also recorded that his medical category S1H1A1P2E1( P2 Permanent) and there was further note that the officer was involved in a disciplinary case of over stay un-authorisedly and borrowing money from subordinates. Though in the affidavit in opposition it is alleged two of the charges were proved but no documents were produced to that effect showing that any charges were proved and therefore, the promotion was denied to the petitioner. The petitioner- appellant joined in the service in the year 1974 and was promoted time to time and in the year 1981, he was promoted to the post of Assistant Commandant. Record shows that from 1994 he was suffering from hypertension and at the time of consideration of the promotion , according to the petitioner , he was categorised as SHAPE-1 vide Annexure-C to the writ petition . On perusal of the Annexure-C , we find that it was issued after examination of the petitioner on 22.10.1998 i.e. long after the date of DPC meeting held on 27.3.1998. On the other hand, documents annexure –R2 to the affidavit-in-opposition , shows that the petitioner was categorised referring to his previous medical category as P2(Temporary) and that medical Board proceeding was held on 26.3.1998. The Assam Rifle order ARO 2/90 in paragraph-7 Clause(t) defines SHAPE thus:- “(t) SHAPE means functional capacity and represents following factor for assessment of fitness of Cadre Officers:- (i) S Psychological (ii)H Hearing (iii)A ` Appendages (iv)P Physical Capacity (v) E Eye sight”
Page 1 and 2: IN THE GAUHATI HIGH COURT (HIGH COU
Page 3 and 4: 3 in Umedbhai M. Patel(supra), I fi
Page 5 and 6: INTERNAL 6. MS Branch 7. Record Bra
Page 7 and 8: 7 also been made known to the petit
Page 9: 9 regarding that prayer of the appe
Page 13: 13 petitioner was fit for duties no

WA 43(SH)/2010 - Gauhati High Court

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