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Supreme Court – Daily Orders
R.S. Kadian vs Ajay Kumar Bhalla on 16 April, 2025
Bench: Surya Kant, Dipankar Datta
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2025
(ARISING OUT OF SLP (CIVIL) NOS. 15834-15835 OF 2022)
R.S. KADIAN APPELLANT(S)
VERSUS
AJAY KUMAR BHALLA & ANR. RESPONDENT(S)
O R D E R
1. Leave granted.
2. The appellant was a Commandant with the Border Security Force
(BSF). A Summary Court of Inquiry was held against him and an
order of displeasure was conveyed. It then followed 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, an order dated 17.06.2009 was passed, retiring the
appellant from service with pensionary benefits.
3. All these punitive actions came to be challenged by the
appellant through various writ petitions filed in the High Court of
Delhi. A Division Bench of the High Court vide judgment dated
12.04.2019 allowed the writ petitions in the following terms:
“92. For all of the aforementioned reasons, the Court
finds no justification whatsoever in the Respondents
passing the order dated 17th June, 2009 terminating the
services of the Petitioner with pensionary benefits.
Accordingly, the said order dated 17th June, 2009 is set
aside.
Signature Not Verified
93. In that view of the matter, it is not necessary for
Digitally signed by
NITIN TALREJA
the Court to separately set aside the SCN which led to
Date: 2025.04.24
14:05:03 IST
Reason:
the passing of the above order dated 17th June 2009. The
Petitioner is directed to be considered for promotion to
the next higher post on the basis that he was not1
terminated him 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.
xx xx xx
95. As far as the second prayer is concerned, the
ordering of a COI into the failure of the Petitioner to
attend his duties in the CPC cannot any longer be
enquired into for the simple reason that he was not
allotted any duties in the CPC. It will be raking up a
dead and stale claim.
96. There is also merit in the contention of the
Petitioner that when the Petitioner sought copies of the
handing/taking over certificates, charge assumption,
relinquishment reports etc. through the RTI, he was not
provided those documents. He filed an appeal to the
Appellate Authority of the RTI Act. Vide letter dated
22nd December, 2010 the reply was that“Shri S.K. Tyagi, Commandant took over the charge
of CEO cum GM from Shri R K. Singh instead of
petitioner, which was erroneously mentioned due to
clerical mistake, and as such documents requested
are not available with Respondents.”xx xx xx
99. For all of the aforementioned reasons, the Court
sets aside the impugned order dated 12th April, 2010
passed by Respondent No.6 for proposing the COI against
him. W.P. (C) 3010 of 2010 is allowed. The pending
application, if any, is also disposed of.”
4. The Union of India challenged the High Court’s judgment in SLP
(Civil) Nos. 4642-4643 of 2021, which were dismissed by this Court
on 16.03.2021, with a clarification that the impugned judgment of
the High Court will not be treated as a precedent on the legal
issue.
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5. It is not in dispute that in compliance to the directions
issued by the High Court, some of the benefits were granted to the
appellant, however, as regard to 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. It seems that in the
contempt proceedings, the High Court passed an order on 17.12.2021,
directing the BSF authorities to reconsider the matter and file an
additional affidavit.
6. In the said 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 and was accordingly promoted from the date
his immediate junior was promoted in the vacancy year 2016-2017
i.e., on 22.05.2016. A plea was taken that no DPC was held in the
vacancy year 2013-2014, 2014-2015, and 2015-2016.
7. The claim of the appellant, on the other hand, was that he was
entitled to be promoted against the vacancy year 2008-2009, i.e.
when his juniors were allegedly promoted. Regarding that claim,
the BSF authorities filed an affidavit before the High Court dated
03.03.2022 in which the following averments were made:
9) That it is stated that petitioner was considered for
promotion for the vacancy years 2008-09, 2009-10, 2010-
11, 2011-12, 2012-13 and 2016-17 and was found “FIT” for
promotion to the rank of DIG for the vacancy year 2016-
17 and has been accordingly promoted from the date of
promotion to his immediate junior in the vacancy year
2016- 17 and has been accordingly promoted from the date
of promotion of his immediate junior in the vacancy year
2016-17 (which is 25.05.2016). It is mentioned herein
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that no DPC was held in the vacancy year 2013-14 and
2014-15 and 2015-16.
xx xx xx
12. That in compliance of the order dated 17.12.2021,
petitioner was supplied vide letter dated 23.03.2022
copies of below benchmark ACRs for the year 2002-03,
2006-07 and 2007-08 to enable, him to make
representation in accordance with office Memorandum
No.21011/1/2005-Estt(A) (Pt-IT) dated 14.05.2009 and OM
No.21011/1/2010-Estt-A dated 13.04.2010. Copy of letter
dated 23.02.2022 issued by FHQ BSF to petitioner is
annexed hereto and marked as Annexure A-3.”
8. It may, thus, be seen that the claim of the appellant for
promotion from the due date, namely, when his juniors were actually
promoted, was apparently turned down on the basis of some adverse
confidential reports, termed as “below benchmark,” pertaining to
the following years: 2002-2003, 2006-2007 and 2007-2008. It is
also a matter of record 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. Eventually, these reports
were conveyed to the appellant vide memo dated 23.03.2022.
9. The question that falls for consideration is whether the
appellant could be justifiably denied promotion from the year 2007-
2008 or so (as and when his junior was considered and promoted) on
the strength of the adverse confidential reports which were never
conveyed to him on time and which also 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). The appellant
cannot be expected to give an effective explanation in respect of
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the adverse comments, if any, made over 20 years ago in the report
of 2002-2003. It, thus, seems to us that the appellant has been
dealt with unfairly in the matter of consideration of promotion in
the rank of DIG from the due date. It goes without saying that the
adverse reports which have not been communicated cannot be acted
upon for the purpose of denying promotion1.
10. We are, thus, of the view that the claim of the appellant for
promotion in the rank of DIG from the due date requires fair
reconsideration by ignoring all such adverse ACRs which were not
conveyed to him within a reasonable period. We find 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. That being so, all three reports are liable to be
ignored while considering the claim of the appellant for promotion
to the rank of DIG.
11. For the reasons aforesaid, we set aside the impugned order of
the High Court dated 04.07.2022. However, instead of holding the
Respondents in contempt, we are of the view that the appellant
deserves an effective relief at the earliest for the reason that he
has already retired from service on superannuation. Consequently,
the appeals are allowed. The respondents are directed 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-
1 State of U.P. v. Yamuna Shanker Misra & Anr., (1997) 4 SCC 7; Dev Dutt v.
Union of India & Ors., (2008) 8 SCC 725.
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2008. It goes without saying 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. The
needful shall be done within a period of three months.
……………………..J.
(SURYA KANT)
……………………..J.
(DIPANKAR DATTA)
……………………..J.
(UJJAL BHUYAN)
NEW DELHI;
APRIL 16, 2025.
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ITEM NO.8 COURT NO.3 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petitions for Special Leave to Appeal (C) No(s). 15834-15835/2022
[Arising out of impugned judgment and order dated 04-07-2022 in CCC
No. 917/2019 04-07-2022 in CCC No. 948/2019 passed by the High
Court of Delhi at New Delhi]
R.S. KADIAN Petitioner(s)
VERSUS
AJAY KUMAR BHALLA & ANR. Respondent(s)
(IA No. 50295/2023 – CLARIFICATION/DIRECTION AND IA No. 133030/2022
– EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 16-04-2025 These matters were called on for hearing today.
CORAM : HON’BLE MR. JUSTICE SURYA KANT
HON’BLE MR. JUSTICE DIPANKAR DATTA
HON’BLE MR. JUSTICE UJJAL BHUYAN
For Petitioner(s) :Ms. V. Mohana, Sr. Adv.
Ms. Garima Bajaj, AOR
For Respondent(s) :Mr. Rajeshwari Shankar, Adv.
Mr. K.M.nataraj, A.S.G. (NP)
Mr. Vatsal Joshi, Adv.
Mr. Akshay Amritanshu, Adv.
Mr. P.V. Yogeswaran, Adv.
Mr. Anuj Srinivas Udupa, Adv.
Mr. Arvind Kumar Sharma, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are allowed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(NITIN TALREJA) (PREETHI T.C.)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed order is placed on the file)
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