Delhi High Court - Orders
Dr. Sarbani Gon vs Bses Rajdhani Power Limited on 27 August, 2024
Author: Jyoti Singh
Bench: Jyoti Singh
$~139
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15487/2022 & CM APPL. 26269/2023, CM APPL.
48111/2024
DR. SARBANI GON .....Petitioner
Through: Ms. Sriparna Chatterjee and Mr.
Soumitra Chatterjee, Advocates.
versus
BSES RAJDHANI POWER LIMITED .....Respondent
Through: Mr. Sandeep Sethi, Senior Advocate
with Mr. Sandeep Prabhakar, Mr.
Nikhil Sharma and Ms. S. Akshata,
Advocates.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 27.08.2024
1. This writ petition has been preferred on behalf of the Petitioner under Articles 226 and 227 of the Constitution of India seeking the following reliefs:
"a) Pass an order/direction or writ in the nature of mandamus directing the Respondent to grant promotion to the Petitioner with effect from the date of her completion of 20 years of service as per the DACP scheme ignoring the un-communicated adverse remarks in her ACR of 2017-2018 in terms of the law laid down by the Hon'ble supreme Court along with arrears of pay and interest thereon at the rate 18% P.A; and / or
b) Pass an order/direction or writ holding the act of the Respondent is arbitrary and against law and
c) Pass an order/direction or writ in the nature of mandamus directing the Respondent to revert the Petitioner to the Medical Services Department in her earlier capacity, from the CSR department as there is no post for a qualified doctor there."W.P.(C) 15487/2022 Page 1 of 6
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2024 at 20:54:23
2. Facts to the extent necessary and as averred in the writ petition are that Petitioner was appointed as Medical Officer/Lady Medical Officer in erstwhile Delhi Vidyut Board ('DVB') vide letter dated 05.01.2000 and joined the post on 10.02.2000. Petitioner became eligible for promotion to the post of Senior Lady Medical Officer Grade-2 in the Pay Scale of Rs.10,000-15,850/- in 2004 under the Dynamic Assured Career Progression Scheme ('DACP Scheme') but was granted the same after 2 years w.e.f. 01.07.2006. On not being granted the next promotion to the post of Senior Lady Medical Officer Grade-1 in Pay Band of Rs.19,000-39,100/- with Grade Pay Rs.7600/-, Petitioner filed a writ petition being W.P.(C) No.844/2011 and thereafter, Respondent promoted her vide order dated 13.01.2012. Once again, the next promotion to the post of Additional Chief Medical Officer was delayed by 02 years and instead of granting the time- bound promotion from 2013, the same was granted w.e.f. 20.05.2015.
3. It is further averred that Petitioner became eligible for promotion as Chief Medical Officer ('CMO') on 10.02.2020, upon completion of 20 years of service, however, she was not promoted, despite representations. On 22.07.2020, a communication was received by the Petitioner informing her that Petitioner was not found 'FIT' for the time-bound promotion under DACP in Pay Band Rs.37,400-67,000/- with Grade Pay of Rs.10,000/- by the DPC held on 21.07.2020 as she had not achieved the benchmark grading of 'Very Good' in the ACR for the year 2017-18. Petitioner immediately represented pointing out that all her previous promotions were deliberately delayed and she was being unnecessarily harassed as also that the ACR for the year 2017-18 was never communicated to her. Getting no positive response, Petitioner filed the present writ petition.
W.P.(C) 15487/2022 Page 2 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2024 at 20:54:23
4. At this stage, learned counsel for the Petitioner makes a limited submission. It is urged that from the communication of the Respondent dated 22.07.2020, it is evident that Petitioner's case for time-bound promotion under DACP in the Pay Band of Rs.37,400-67,000/- with Grade Pay of Rs.10,000/- was considered by the DPC held on 21.07.2020 but Petitioner was declared 'UNFIT' in the absence of requisite rating of 'Very Good' in the ACR for the year 2017-18 but this ACR was not communicated to her and therefore, the same ought not to have been considered by the DPC. Relying upon the decision of the Supreme Court in Dev Dutt v. Union of India and Others, (2008) 8 SCC 725, it is submitted that DPC had materially erred in taking into consideration the ACR for the year 2017-18, which was a below benchmark ACR and admittedly uncommunicated. It is, therefore, urged that a direction be issued to the Respondent to communicate the ACR for the period 2017-18 and permit the Petitioner to make a representation against the same as per the settled law.
5. The primordial contention of the Petitioner is that the DPC held on 21.07.2020 declared the Petitioner 'UNFIT' for time-bound promotion under DACP in the Pay Band Rs.37,400-67,000/- with Grade Pay of Rs.10,000/- in the absence of requisite rating of 'Very Good' in the ACR of 2017-18. Admittedly, this ACR was not communicated to the Petitioner when the DPC was held and even till date, the ACR is uncommunicated. This, according to the Petitioner, is in the teeth of the law laid down by the Supreme Court in Dev Dutt (supra). To this extent, there is merit in the contention of the Petitioner as the legal position stands crystallized insofar as non-communication of below benchmark grading in the ACR is concerned. In fact, in Dev Dutt (supra), the Supreme Court while examining W.P.(C) 15487/2022 Page 3 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2024 at 20:54:24 the Constitutionality of the procedure of non-communication of below benchmark gradings in ACRs observed that non-communication of entries in the ACR of a public servant, whether he is in civil, judicial or any other service (other than military), certainly has adverse consequences as it affects his chances of promotion and deprives the employee of other benefits and hence, non-communication is violative of Article 14 of the Constitution of India. In fact, in this judgment the Supreme Court made a significant observation that not only a below benchmark grading but every entry in the ACR, be it 'Poor', 'Fair', 'Average', 'Good' or 'Very Good' must be communicated in the interest of fairness. This principle was reiterated by the Supreme Court in Sukhdev Singh v. Union of India and Others, (2013) 9 SCC 566, and relevant paragraphs are as under:
"6. We are in complete agreement with the view in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the same.
7. A three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India [(2009) 16 SCC 146 : (2010) 1 SCC (L&S) 959] followed Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 :
(2008) 2 SCC (L&S) 771] . In para 8 of the Report this Court with reference to the case under consideration held as under: (Abhijit Ghosh Dastidar case [(2009) 16 SCC 146 : (2010) 1 SCC (L&S) 959] , SCC p.
148) "8. Coming to the second aspect, that though the benchmark 'very good' is required for being considered for promotion, admittedly the entry of 'good' was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having 'very good' in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or getting other benefits. Hence, such non-
communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case [Dev Dutt v. Union of India, W.P.(C) 15487/2022 Page 4 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2024 at 20:54:24 (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] , SCC p. 738, para 41) relied on by the appellant. Therefore, the entries 'good' if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
8. In our opinion, the view taken in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR--poor, fair, average, good or very good--must be communicated to him/her within a reasonable period."
6. It is also relevant to refer in this context to the judgments of the Supreme Court in Prabhu Dayal Khandelwal v. Chairman, Union Public Service Commission and Others, (2015) 14 SCC 427 and UOI & Anr. v. V.S. Arora & Ors., 2012 SCC OnLine Del 3193. In light of enunciation of these legal principles, it is no longer open to debate that the DPC in the present case held on 21.07.2020 erred in taking into account the uncommunicated ACR of the Petitioner for the year 2017-18. Since the Petitioner seeks communication of the said ACR to make a representation in light of the settled law, this relief cannot be denied to her.
7. Mr. Sandeep Sethi, learned Senior Counsel appearing for the Respondent in his usual fairness does not dispute that after pronouncement of the judgments of the Supreme Court in Dev Dutt (supra), Sukhdev Singh W.P.(C) 15487/2022 Page 5 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2024 at 20:54:24 (supra), etc., the ACR for the period 2017-18 is required to be communicated to the Petitioner.
8. Accordingly, this writ petition is disposed of with a direction to the Respondent to communicate the ACR for the period 2017-18 to the Petitioner within a period of 03 weeks from the date of receipt of the order. It would be open to the Petitioner to make a representation against the ACR and the same shall be decided by the Competent Authority of the Respondent within 04 weeks from the date of receipt of the representation. In the event of upgradation of the ACR, Petitioner shall be considered for promotion by a Review DPC within 02 months and if recommended by the DPC, her time-bound promotion to the post of Chief Medical Officer under DACP Scheme shall be granted from the date due with all consequential benefits. If the representation is rejected, a reasoned and speaking order shall be passed by the Respondent, which shall be communicated to the Petitioner within a week, who will be at liberty to take recourse to legal remedies.
9. Pending applications also stand disposed of.
JYOTI SINGH, J AUGUST 27, 2024/ssc/kks W.P.(C) 15487/2022 Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2024 at 20:54:24