Himachal Pradesh High Court
Superintending Engineer vs K.V. Jankiraman Case (Air 1991 Sc on 17 December, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 17th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No. 157 of 2020
Between:
SURINDER KUMAR,
S/O SH. RAI SINGH,
RESIDENT OF VILLAGE DEHRI,
P.O. KUTHANDAL
PRESENTLY SERVING AS
SUPERINTENDING ENGINEER
NORTH HIMUDA, CIRCLE OFFICE
DHARAMSHALA,
DISTRICT KANGRA, (HP)
....PETITIONER
(BY MR. P.S. PATWALIA, SENIOR
ADVOCATE WITH MR. SUNIL
MOHAN GOEL, ADVOCATE)
AND
1. STATE OF H.P.
THROUGH SECRETARY
(HOUSING-CUM-CHAIRMAN DPC)
TO THE GOVT. OF HIMACHAL PRADESH,
SHIMLA-2
2. HIMACHAL PRADESH HOUSING &
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2
URBAN DEVELOPMENT AUTHORITY,
.
NIGAM VIHAR, SHIMLA THROUGH ITS
CEO-CUM-SECRETARY-CUM-MEMBER DPC
3. SMT. ANJORI KAPOOR,
W/O SH. AJAY KAPOOR
PRESENTLY WORKING AS SUPERINTENDING ENGINEER,
(SOUTH) HIMUDA, CIRCLE OFFICE KASUMPTI,
SHIMLA-9
4. EXECUTIVE DIRECTOR HIMUDA
MEMBER DPC NIGAM VIHAR, SHIMLA
5. DEPUTY SECRETARY (PERSONAL)
H.P. SECRETARIAT, SHIMLA-2
MEMBER DPC
....RESPONDENTS
(BY MR. SUDHIR BHATNAGAR AND
MR.DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. NARENDER THAKUR AND
MR. KAMAL KISHORE AND GAURAV SHARMA,
DEPUTY ADVOCATES GENERAL,
FOR THE RESPONDENT-STATE)
(BY MR. AMIT SINGH CHANDEL,
ADVOCATE, FOR R-2 AND R-4)
(BY MR. DILIP SHARMA, SENIOR ADVOCATE
WITH MR. MANISH SHARMA,
ADVOCATE FOR R-3)
Whether approved for reporting?. Yes.
Reserved on 04.12.2021
Decided on 17.12.2021
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3
This petition coming on for pronouncement of judgment this day, the Court passed the
.
following:
ORDER
Being aggrieved and dissatisfied with the issuance of office order dated 1.1.2020 (Annexure-P-22), whereby respondent No.3-Ms. Anjori Kapoor, on the recommendation of the review Departmental Promotion Committee (Higher), came to be promoted to the post of Superintending Engineer (SE), ahead of the petitioner, petitioner has approached this Court in the instant proceedings, filed under Article 226 of the Constitution of India, praying therein for following main relief(s):
"i) That this Hon'ble Court may kindly issue writ of certiorari quashing order dated 1.1.2020 (Annexure-P-22), minutes of meeting of the review DPC held for the post of Executive Engineer (Civil) dated 9.8.2019 (Annexure-P-19) resultant minutes of meeting of DPC dated 16.8.2019 (Annexure P-20) and review of review DPC minutes of meeting dated 30.12.2019 (Annexure-P-21).
ii) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondents to reconvene the DPC and look into all the ACRs of the petitioner and respondent No.3 and after a comparative evaluation of all the ACRs of the respondent No.3 objectively alongwith the order of upgradation passed by the ACS (Housing) conduct appropriate DPC.
iii) That this Hon'ble Court may be further pleased to issue writ of mandamus directing the respondents to not to hold further DPC for promotion to the post of Chief Engineer based upon the review DPC dated 30.12.2019 and order dated 1.1.2020."::: Downloaded on - 31/01/2022 23:27:22 :::CIS 4
2. For having bird's eye view, certain undisputed facts, which are .
relevant for the adjudication of the case at hand, are that respondent No.3- Ms. Anjori Kapoor, joined the respondent- Himachal Pradesh Housing and Urban Development Authority ( hereinafter referred to as "the HIMUDA") on 18.10.1996, against the post of Assistant Engineer. Subsequent to aforesaid appointment of respondent No.3, petitioner herein also came to be appointed as Assistant Engineer in HIMUDA and as such, respondent No.3 being senior to the petitioner herein figured at Sr. No. 11 and petitioner at Sr. No.12.
Next post to which, both the petitioner and respondent No.3 were eligible for consideration and appointment was that of "Executive Engineer", however, this being the selection post was to be filled on the basis of merit cum seniority. Petitioner came to be promoted to the post of Executive Engineer on 16.6.2007 vide office order dated 16.6.2007, on the basis of recommendation made by the Departmental Promotion Committee.
3. Being aggrieved and dissatisfied with the promotion of the petitioner to the post of Executive Engineer and down grading of her annual ACRs for the period of 1.4.2004 to 31.3.2005, 1.4.2005 to 30.9.2005 and 1.9.2005 to 31.3.2006, respondent No.3 filed an Original Application bearing OA No. 1642 of 2007 in the Erstwhile HP State Administrative Tribunal, but same came to be transferred to this court on account of ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 5 abolishment of the erstwhile Tribunal and was re-registered as CWP(T) No .
15395 of 2008. This court vide judgment dated 18.12.2012, held that non-
communication of adverse remarks recorded in the ACR is violative of Article 14 of the Constitution of India and in complete violation of judgment passed by the Hon'ble Apex Court in Dev Dutt v. Union of India, (2008) 8 SCC 725. Vide aforesaid judgment, though this Court did not disturb the promotion of the petitioner and also refused to downgrade his assessment made in the ACRs, but directed the respondent State and HIMUDA to ensure prompt compliance of the directions contained in Dev Dutt's case (supra). This court also observed that in case (respondent No.3) petitioner herein, becomes aggrieved about the down gradation of his report, he should also be conveyed the entries etc. for the appropriate remedial action.
Aforesaid judgment rendered by the learned Single Judge of this Court, was further laid challenge in LPA No. 30 of 2013, titled Surinder Kumar v. Anjori Kapoor, and Ors, having been filed by the petitioner herein. The Division Bench of this Court having taken note of the fact that HIMUDA being necessary party was not impleaded as party respondent in the case having been filed by respondent No.3, vide judgment dated 23.8.2014 (Annexure P-
2), set-aside the judgment dated 18.12.2012 and directed the parties to cause appearance before the learned Single Judge on 6.10.2014. However, ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 6 before fresh decision, if any, could be taken by the learned Single Judge of .
this court in the petition having been filed by respondent No.3, matter again came to be transferred to the erstwhile Tribunal and same was registered as TA No. 601 of 2015 (Annexure-P-3).
4. The erstwhile Tribunal vide order dated 13.7.2017, allowed the transfer application and permitted respondent No.3 to make a representation for up-gradation of her ACRs to Secretary (Housing) to the Government of Himachal Pradesh , if she chooses so, within a period of one month, with further direction to the Secretary (Housing) to decide the same within two months thereafter. While passing aforesaid order, the erstwhile Tribunal also ordered that if entries of the applicant (respondent No.3 herein) are upgraded, she shall be considered for promotion retrospectively by the Departmental Promotion Committee within three months thereafter and if she gets selected for promotion retrospectively, she shall be given benefits notionally till the joining.
5. Being aggrieved and dissatisfied with the aforesaid order passed by the erstwhile Tribunal, petitioner herein filed CWP No. 1896 of 2017, before a Division Bench of this Court (Annexure P-4), wherein vide order dated 23.8.2017, convening of DPC was stayed. The Division Bench of this court, having taken note of the order dated 17.8.2017, passed by the ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 7 Secretary (Housing) in terms of order dated 23.7.2017, passed by the .
erstwhile Tribunal, whereby ACRs of respondent No.3 for the year, 2002- 03, 2003-04 and 2004-05 came to be upgraded from "good" to "very good", vide judgment dated 10.12.2018, disposed of the aforesaid writ petition, reserving liberty to the petitioner to assail the order passed by the Secretary (Housing) by resorting to the remedies available to him in accordance with law (Annexure-P-5). Though aforesaid judgment passed by this Court was laid challenge in SLP filed by the petitioner, but same was withdrawn as is evident from order dated 14.1.2019 passed by the Hon'ble Apex Court in SLP(C) No. 163 of 2019 (Annexure-P-6). After dismissal of the SLP as detailed herein above, petitioner herein filed OA No. 342 of 2019 in the erstwhile Tribunal, laying therein challenge to order dated 17.8.2017, passed by the Secretary (Housing ) on the representation having been filed by the respondent, praying therein to upgrade her ACRs for the period as detailed herein above (Annexure-P-8). Though, initially the erstwhile Tribunal directed the parties to maintain status quo with regard to DPC, but subsequently vide order dated 10.7.2019 (Annexure-P-17) dismissed the OA having been filed by the petitioner on the ground that it has no power of judicial review to review the order dated 17.8.2017, passed by the ACS (Housing). Aforesaid order was further laid challenge by the petitioner ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 8 herein in this court by way of CWP No. 1608 of 2019, which was dismissed .
vide judgment dated 24.7.2019 (Annexure P-18) on the ground that petitioner does not have any locus standi to challenge the up-gradation of ACRs of respondent No.3. Though petitioner again laid challenge to the foresaid judgment passed by the Division Bench of this Court by way of SLP in the Hon'ble Apex Court, but same was also dismissed as withdrawn.
6. On 9.8.2019 (Annexure-P-19), meeting of Review Departmental Promotion Committee for the post of Executive Engineer (Civil) was held, wherein respondent No.3 was granted the seniority over and above the petitioner. On 16.8.2019, resultant to the review Departmental Promotion Committee held for the post to Executive Engineer (Civil), meeting of Review Departmental Promotion Committee for the post of Superintending Engineer was held, wherein respondent No.3 was ordered to be promoted to the post of Superintending Engineer (Civil) with effect from 20.3.2017, and petitioner was ordered to be promoted to the said post w.e.f. 1.9.2014. After convening of the afore meetings of Departmental Promotion Committee held on 9.8.2019 and 16.8.2019, proceedings were placed before the Minister Incharge, who being Chairman-cum-accepting authority, directed the respondents to conduct the revised Departmental Promotion Committee so that justice is done to all, as is evident from the relevant extract of noting ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 9 sheet placed on record by the petitioner as Annexure-P-26 alongwith .
application bearing CMP No. 5099 of 2020. In terms of the aforesaid recommendation of the Chairman-cum-accepting authority. Review Departmental Promotion Committee was held on 30.12.2019 (Annexure-P-
21) under the Chairmanship of Secretary (Housing) to the Government of Himachal Pradesh-cum- CEO-cum-Secretary HIMUDA comprising of Mr. OP Bhandari, HPSS, Deputy Secretary (Personal) to the Government of Himachal Pradesh. Aforesaid review Departmental Promotion Committee in its meeting held on 30.12.2019 (Annexure-P-21) observed that the Departmental Promotion Committee finds no reason to not to upgrade ACRs in respect of Anjori Kapoor (respondent No.3) as the same has been decided by the competent authority vide detailed and speaking order in compliance of the orders of Hon'ble court. Aforesaid review Departmental Promotion Committee found that review Departmental Promotion Committees dated 9.8.2019 and 16.8.2019 have been convened in accordance with the prescribed procedure and as such, require no reconsideration. After meeting of review DPC held on 30.12.2019, as has been taken note herein above, the CEO-cum-Secretary HIMUDA, Shimla, vide office order dated 1.1.2020 (Annexure-P-22), taking note of the recommendations of the Review Departmental Promotion Committee in its ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 10 meetings held on 16.8.2019 and 30.12.2019, promoted respondent No.3 .
Ms. Anjori Kapoor to the post of the Superintending Engineer w.e.f.
1.9.2014 on notional basis instead of 20.3.2017 and vide same order, petitioner was ordered to be promoted to the post of Superintending Engineer w.e.f. 20.3.2017 instead of 1.9.2014. In the aforesaid background, petitioner has approached this Court in the instant petition, praying therein for reliefs as have been reproduced herein above.
7. Mr. P.S. Patwalia, learned Senior Counsel duly assisted by Mr. Sunil Mohan Goel, Advocate, representing the petitioner fairly stated that at this juncture, petitioner herein cannot have any grouse with regard to the up-gradation of ACRs of respondent No.3 by the Secretary (Housing) pursuant to the directions issued by the erstwhile Tribunal, which subsequently came to be upheld by this Court. He argued that precise grouse of the petitioner at this stage is that Review Departmental Promotion Committee while considering respondent No.3 for promotion ought not have accepted the ACRs upgraded by the Secretary (Housing) from "good" to "very good" in a mechanical manner, rather while considering the respondent No.3 for promotion to the post of Executive Engineer, which is a selection post and thereafter, to the post of Superintending Engineer ought to have taken into consideration all the ACRs of the relevant years. While ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 11 making this Court peruse ACRs of respondent No.3 for the relevant years .
Annexure P-9, 10, 11 and 12, Mr. Patwalia, made serious attempt to persuade this Court to agree with his contention that had Departmental Promotion Committee perused the entire record with regard to ACRs of the relevant years, it would not have recommended respondent No.3 for promotion. While making this Court peruse Minutes of Departmental Promotion Committee held on 9.8.2019 and 16.8.2019 (Annexure P-19 and P-20), Mr. Patwalia, argued that bare perusal of the same nowhere suggests that DPC perused the record, rather it mechanically after seeing the order of up-gradation passed by the Secretary (Housing), recommended her for promotion to the post of Executive Engineer and thereafter, Superintending Engineer from the respective dates ahead of the petitioner, who, admittedly, stood recorded as very good officer in his ACRs and as such, was rightly given promotion in the year, 2014 to the post of Executive Engineer. Lastly Mr. Patwalia, also invited attention of this court to the R&P Rules of HP Housing and Urban Development Authority, notified vide notification dated 14.7.2005 issued by the CEO-cum-HIMUDA Secretary (Annexure P-23) to demonstrate that Departmental Promotion Committee is/was necessarily required to be comprised of three persons ; 1.) Principal Secretary (Housing)-
Chairman; 2.), CEO-cum-Secretary (HIMUDA)-Member; and 3.) Executive ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 12 Director (HIMUDA)-Member. He also invited attention of this court to the .
office memorandum dated 9.5.2014 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India (Annexure P-24) to argue that DPC is required to make its own assessment on the basis of entry in the ACRs and not to be guided merely by overall grading. He further argued that in case assessment by the Departmental Promotion Committees are apparently not in the line with the grades in the ACRs, DPCs should appropriately substantiate the assessment by giving reasons so that appointing authority could factor these while taking a view on the suitability of a officer for promotion. In support of his aforesaid contentions, Mr. Patwalia, placed reliance upon the following judgments passed by this Court as well as the Hon'ble Apex Court i.e. 1.) Union of India and Anr. v. A.K. Narula, 2007 (11) SCC 10; 2.) Union of India and Anr. v. S.K. Goel and Ors 2007 (14) SCC 641; 3.) Sunder Lal v. Union of India and Ors 2000 (10) SCC 409; and 4.) Brijesh Sood v. State of HP and Ors, 2021 (3) Shimla Law Cases 1270.
8. Mr. Dilip Sharma, learned Senior counsel duly assisted by Mr. Manish Sharma, Advocate, representing respondent No.3 and Mr. Amit Singh Chandel, learned counsel appearing for respondents Nos. 2 and 4 supported the promotion order of the petitioner to the post of Executive ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 13 Engineer and thereafter to Superintending Engineer on the basis of .
recommendation of DPC. Above named counsel further argued that since all the questions as have been raised in the instant petition already stand adjudicated by various courts of law, in the earlier petitions having been filed by respondent No. 3 as well as the petitioner, present petition deserves outright rejection, being not maintainable. Mr. Sharma, strenuously argued that petitioner has lost before all the courts and as such, it would not be proper at this stage to permit him to raise the question, which otherwise stands fully decided. Mr. Sharma, argued that since Division Bench of this Court has already held that the petitioner has no locus to lay challenge to the order upgrading ACRs of respondent No.3, petitioner cannot be permitted, at this stage, to contend that order /minutes of DPC recommending respondent No.3 for promotion to the post of Executive Engineer and thereafter, Superintending Engineer on the basis of up-
gradation of the ACRs made by the Secretary (Housing) is illegal. While making this Court peruse minutes of DPC, Mr. Sharma, argued that it has been clearly mentioned in the proceedings that DPC perused the entire record of ACRs and as such, recommendation made by it for promotion of respondent No.3 cannot be said to be not based upon proper appreciation of record. While referring to the office memorandum issued by the Ministry ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 14 of Personnel, Public Grievances and Pensions, Mr. Sharma, argued that .
same has no application in the present case because Departmental Promotion Committee is only required to give reasons if its assessment is not in line with the gradation in the ACRs, but since in the case at hand, DPC has concurred with the ACRs of respondent No.3, it had no occasion otherwise to record any reasons.
9. I have heard the learned counsel for the parties and gone through the records of the case.
10. Having heard learned counsel for the parties and perused the material available on record, this court finds that precise question, which needs to be adjudicated in the case at hand is that "whether Departmental Promotion Committee is necessarily required to make its own assessment on the basis of entries in the ACRs or it can proceed further merely on the basis of overall grading given in the ACRs of the official concerned."
11. Though Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India, have been repeatedly issuing guidelines with regard to role of DPCs as have been taken note herein above, but to have more clarity, on the subject, this court deems it fit to take note of the latest instructions issued in this regard by the Government of India vide office memorandum dated 28.4.2014, which reads as under:
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"The Department of Personnel & Training had in its O.M. No.22011/5/86-Estt (D) dated 10.04.1989 issued consolidated instructions on Departmental Promotion Committee and matters related thereto. Para 6.2.3 of said O.M. provides that "before making the overall grading after considering the CRs for the relevant years, the DPC should take into account whether the officer has been awarded any major or minor penalty or whether any displeasure of any superior officer or authority has been conveyed to him as reflected in the ACRs." These guidelines further provide that "the DPC should not be guided merely by the overall grading, if any, that may be recorded in the ACRs (now APARs) but should also make its own assessment on the basis of entries in the CRs (now APARs) because it has been noticed that sometimes the overall grading in a ACR (now APAR) may be inconsistent with the grades under various parameters or attributes".
2. It further provides that an officer whose increments have been withheld or who has been reduced to a lower stage in the time scale, cannot be considered on that account to be ineligible for promotion to the higher grade as the specific penalty of withholding promotion has not been imposed on him/her. The suitability of the officer for promotion should be assessed by the DPC as and when occasions arise for such assessment. In assessing the suitability, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of the general service record of the officer and the fact of the imposition of the penalty he should be considered suitable for promotion.
However, even where the DPC considers that despite the penalty, the officer is suitable for promotion, the officer should not be actually promoted during the currency of the penalty.
3. Further this Department's O.M. No. No.22034/5/2004-Estt (D) dated 15.12.2004 provides that a Government servant, on whom a minor penalty of withholding of increment etc. has been imposed, should be considered for promotion by the Departmental Promotion Committee which meets after the imposition of the said penalty and after due consideration of full facts leading to imposition of the penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty.
4. The procedure and guidelines to be followed for promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation has been laid down in this Department's O.M. No.22011/4/91-Estt (A) dated ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 16 14.9.92 and O.M. No.22034/4/2012-Estt (D) dated 02.11.2012 .
and 23.1.2014.
5. The role of Departmental Promotion Committee(DPC) in assessment of the officers being considered for promotion, including the officer(s) against whom a chargesheet has been issued or on whom a penalty has been imposed, has been examined by the Supreme Court in several judgments. The observations of Supreme Court in some of the important cases are summarized as under:
(a) In A.K. Narula case (AIR 2007 SC 2296), the Hon'ble Supreme Court has observed:
"the guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, malafide or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court will not interfere".
(b) In Union of India vs. K.V. Jankiraman case (AIR 1991 SC 2010), the Supreme Court has taken cognizance of role of DPC the case of an officer on whom a penalty has been imposed and has held that:
"An employee has no right to promotion. He has only right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interest. An employee found guilty of misconduct cannot be placed on par with the other employees, and his case has to be treated differently In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified."::: Downloaded on - 31/01/2022 23:27:22 :::CIS 17
(c) In U01 & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil) .
689/2007 -SLP0-2410/2007), the Hon'ble Supreme Court has held that:
"DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence interference by High Court is not called for. "
While delivering the above judgement, the Division Bench has observed that:
"...it is now more or less well settled that the evaluation made by an Expert Committee should not be easily interfered with by the Court which do not have the necessary expertise to undertake the exercise that is necessary for such purpose."
6. It has been brought to the notice of this Department that DPCs have been adopting varying criteria in assessment of officials undergoing penalty that are not consistent with the extant instructions of the DOPT for e.g., downgradation of grading in ACR/APAR, denying promotion for specified number of years, etc.
7. The matter has been examined in consultation with the Department of Legal Affairs. It is a settled position that the DPC, within its power to make its own assessment, has to assess every proposal for promotion, on case to case basis. In assessing the suitability, the DPC is to take into account the circumstances leading to the imposition of the penalty and decide, whether in the light of general service record of the officer and the effect of imposition of penalty, he/she should be considered suitable for promotion and therefore, downgradation of APARs by one level in all such cases may not be legally sustainable. Following broad guidelines are laid down in respect of DPC:
a) DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them, including those officers on whom penalty has been imposed as provided in DoPT O.M. dated 10.4.89 and O.M. dated 15.12.2004.
b) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the ACRs/APARs but should make its own assessment on the basis of the entries in the ACRs/APARs as it has been noticed that sometimes the overall grading in a ACR/APAR may be inconsistent with the grading under various parameters or attributes. Before making the overall recommendation after considering the APARs (earlier ACRs) for the relevant years, the DPC should take into account whether the officer has been awarded any ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 18 major or minor penalty. (Refer para 6.2.1(e) and para 6.2.3 of .
DoPT OM dated 10.04.89)
c) In case, the disciplinary/criminal prosecution is in the preliminary stage and the officer is not yet covered under any of the three conditions mentioned in para 2 of DoPT O.M. dated 14.09.1992, the DPC will assess the suitability of the officer and if found fit, the officer will be promoted along with other officers. As provided in this Department's O.M. dated 02.11.2012, the onus to ensure that only person with unblemished records are considered for promotion and disciplinary proceedings, if any, against any person coming in the zone of consideration are expedited, is that of the administrative Ministry/Department.
d) If the official under consideration is covered under any of the three condition mentioned in para 2 of O.M. dated 14.09.1992, the DPC will assess the suitability of Government servant along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded are kept in a sealed cover. (Para 2.1 of DoPT OM dated 14.9.92).
e) Para 7 of DoPT OM dated 14.09.92 provides that a Government servant, who is recommended for promotion by the DPC, but in whose case, any of the three circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M. arises after the recommendations of the DPC are received but before he/she is actually promoted, will be considered as if his/her case had been placed in a sealed cover by the DPC. He/she shall not be promoted until he/she is completely exonerated of the charges against him/her.
f) If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he/she is found guilty in the criminal prosecution against him/her, the findings of the sealed cover/covers shall not be acted upon. His/her case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him/her (para 3.1 of DoPT OM dated 14.9.92).
g) In assessing the suitability of the officer on whom a penalty has been imposed, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of general service record of the officer and the fact of imposition of penalty, the officer should be considered for promotion. The DPC, after due ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 19 consideration, has authority to assess the officer as 'unfit' for .
promotion. However, where the DPC considers that despite the penalty the officer is suitable for promotion, the officer will be actually promoted only after the currency of the penalty is over (para 13 of DoPT OM dated 10.4.89).
h) Any proposal for promotion has to be assessed by the DPC, on case to case basis, and the practice of downgradation of APARs (earlier ACRs) by one level in all cases for one time, where a penalty has been imposed in a year included in the assessment matrix or till the date of DPC should be discontinued immediately, being legally non-sustainable.
i) While there is no illegality in denying promotion during the currency of the penalty, denying promotion in such cases after the period of penalty is over would be in violation of the provisions of Article 20 of the Constitution.
j) The appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite the completion. (Para 4 of O.M. dated 14.09.1992)
k) In cases where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC which kept its findings in respect of the Government servant in a sealed cover then subject to condition mentioned in Para 5 of this Department's O.M. dated 14.09.1992, the appointing authority may consider desirability of giving him ad-hoc promotion (Para 5 of this Department's O.M. dated 14.09.1992).
8. All the administrative authorities in the Ministries/Department are advised to place relevant records, including chargesheet, if any, issued to the officer concerned, penalty imposed, etc., before the DPC/ACC who will decide the suitability of officer for promotion keeping in view the general service records of the officer including the circumstances leading to the imposition of the chargesheet or penalty imposed. If such an officer is found suitable, promotion will be given effect after the currency of the penalty is over.
::: Downloaded on - 31/01/2022 23:27:22 :::CIS 209. All Ministries/Departments are, therefore, requested to keep in .
view the above guidelines while convening DPC for promotion of the Government servants on whom either penalty has been imposed or where there are adverse remarks in the reckonable ACRs/APARs."
12. Besides above, this Court finds that clause 16.25 of Handbook On Personnel Matters (Vol.1) (Second Edition), lays down the principles for promotion to the selection post, which are reproduced herein below:
"16.25 Principles for promotion to Selection posts
e). 27-7-1978 to 15-3-1981 The procedure evolved from 13.2.1978 was not comprehensive and was stated to be in supersession of all previous instructions/orders. Accordingly, the Govt. issued comprehensive instructions prescribing the procedure for preparing select list etc. on 27.7.1978, which provides that the Departmental Promotion Committee will assess the confidential repots of the eligible officers for five years and classify them separately for each year as ""Outstanding"", "Very Good", "Good", and "Fair". This assessment and classification will be made by the Departmental Promotion Committee after considering the whole of a particular confidential report.
Each type of assessment shall carry marks as under:-
Outstanding -5 marks
Very Good -4 marks
Good -3 marks
Fair -2 marks.
Classification for each year shall be evaluated in the form of marks in the above manner and total marks worked out for five years, whereafter average marks shall be worked out by diving the total marks by the same member as the number of years for which confidential reports have been considered. An officer who gets marks 4.5 or above in this manner shall be considered to be of exceptional merit. One getting marks of 3.5 or above but below 4.5 shall be classified as ""Very Good"" and one getting in average of 2.5 or above but below 3.5 marks shall be classified as "Good". Officers who earn less than 2.5 average marks shall be classified as unfit for promotion. Those categorized as unfit will be excluded from the eligibility for promotion.
In a particular slab of three, an officer classified as "Outstanding"( i.e. possessing exceptional merit) will supersede an officer classified ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 21 as ""Very Good"" and officer classified as ""Very Good"" will .
supersede an officer classified as "Good". However, if in a slab of three more than one officer have the same classification, the selection will be made on the basis of seniority.
Where the select list includes persons to whom proforma promotion is to be given, then the select list should further be extended to the extent of number of such persons.
(H.P.Govt. Deptt. Of personnel) O.M. No.PER(AP- II)A(3)-9/76 DATED 27-7- 1978 Annexure-16.7).
(f) From 16-3-1981 to 3-11-1981 In partial modification of the. O.M. dated 27.7.1978 (sub para "g" above) the principles for promotion to selection posts were slightly revised from 16.3.1981. According to revised procedure the field of choice, subject to availability or eligible candidates, should extend to five time the number of vacancies within the year. From amongst the officers within the field of choice, those who are considered unfit for promotion should be excluded. The remaining officers should be classified "outstanding", "very Good", and "Good" on the basis of merit as determined from their record of service. For this purpose, Annual Confidential Reports for three to five years should be considered. After the above grading, the select list should be prepared by placing the names in order of these three categories, without disturbing the seniority interse within each category." The procedure for assessing the overall classification shall be as under:-
i). The Departmental Promotion Committee will assess the confidential reports of the eligible officers for five years and classify them separately for each year, as "Outstanding", "Very Good" and "Fair". The assessment of classification will be made by the Departmental Promotion Committee after considering the whole of a particular confidential report.
ii) Each type of assessment shall carry marks as under:-
Outstanding 5 marks Very Good 4 marks Good 3 marks Fair 2 marks The classification for each year shall be evaluated in the form of marks in the above manner and the total marks shall be worked out for five years.
iii) After total evaluation is made as above, average marks shall be worked out by dividing the total marks by the same number as the number of years for which confidential reports have been considered. Thus, an officer who gets average marks 4.5 or above in this manner shall be considered to be of exceptional merit. One getting average marks of 3.5 or above but below 4.5 shall be classified as "Very Good" and ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 22 one getting an average of 2.5 or above but below 3.5 marks .
shall be classified as "Good". Officers who earn less than 2.5 average marks shall be classified as unfit for promotion. Those categorised as unfit will be excluded from the eligibility for promotion.
While grading officers as "Oustanding", "Very Good" and "Good", one should not mechanically follow the grading given by the Reporting Officers. They should also take into account the nature of the job against which an individual is posted as well as its responsibilities. For reports on difficult or higher assignments, the categorisation may be stepped up by one category in comparison to similar reports on officers working on junior assignments. For proper and just assessment, the Senior Officer or an officer doing a difficult job needs to be assessed very carefully for comparison with a junior officer or an officer doing a relatively simple job. (H.P. Govt. Deptt. of Personnel O.M. No. Der (AP-II)-A (1) -1/80 dated 16-3-1981 - Annexure-16.9)
13. It is quite apparent from the bare perusal of the notification issued by the Government of India as well as clause 16.25 of the Handbook on Personnel Matters, as has been taken note herein above, that DPC is required to make its own assessment on the basis of entries in the ACRs and it is not to be guided merely by overall grading. It also emerges from the notification as well as provisions contained in the Handbook on Personnel Matters that DPC is well within its right to upgrade/downgrade the ACRs of person to be considered for promotion and it is not bound to mechanically follow the grading given by Reporting/Reviewing Officer.
14. The Hon'ble Apex Court in case titled UPSC v. K. Rajaiah and Ors, (2005) 10 SCC 15, has categorically held that classification given by the State is not binding on the committee and the committee can evolve its ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 23 own classification, which may be at variance with the gradation given in .
the ACRs. It would be apt to take note of para 9 of the aforesaid judgment "9. We cannot also endorse the view taken by the High Court that consistent with the principle of fair play, the Selection Committee ought to have recorded reasons while giving a lesser grading to the 1st respondent. The High Court relied on the decision of this Court in National Institute of Mental Health & Neuro Sciences Vs. Dr. K. Kalyana Raman & Ors. [AIR 1992 SC 1806]. Far from supporting the view taken by the High Court, the said decision laid down the proposition that the function of the Selection Committee being administrative in nature, it is under no obligation to record the reasons for its decision when there is no rule or regulation obligating the Selection Committee to record the reasons. This Court then observed: (SCC p.485, para 7).
"Even the principles of natural justice do not require an administrative authority or a Selection Committee or an Examiner to record reasons for the selection or non selection of the person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass Vs. Union of India [1986 (Suppl.) SCC 617] at Page 633.
" n the next paragraph, the learned Judges indicated as to what is expected of the Selection Committee, in the following words:
"we may state at the outset that giving of reasons for decision is different from, and in principle distinct from the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administration action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary "
That being the legal position, the Court should not have faulted the so called down gradation of the 1st respondent for one of the years. Legally speaking, the term 'down gradation' is an inappropriate expression. The power to classify as '"Outstanding"', '"Very Good"', 'good' and 'unfit' is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 24 given in the ACRs. That is what has been done in the instant .
case in respect of the year 1993-94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision".
15. Question at this stage, which also needs to be dealt with is of scope of judicial review as far as gradation of ACRs by the DPC is concerned. In this regard, reliance is placed upon the judgment rendered by the Hon'ble Apex Court in case Anil Katiyar versus Union of India (1997) 1 Supreme Court Cases 280, wherein it has been held that correctness of grading given in the ACRs was not subject to the judicial review unless the selection is assailed as being vitiated by malafides or on the ground of it being arbitrary. It would be profitable to take note of para-
4 of the aforesaid judgment herein below:-
"4. Having regard to the limited scope of judicial review of the merits of a selection made for appointment to a service or a civil post, the Tribunal has rightly proceeded on the basis that it is not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the DPC and that it would not sit in judgment over the selection made by the DPC unless the selection is assailed as being vitiated by male fides or on the ground of it being arbitrary. It is not the case of the appellant that the selection by the DPC was vitiated by mala fides."
16. Reliance is placed upon judgment passed by the Hon'ble Apex Court in case titled Union of India and Anr. v. S.K. Goel and Ors, (2007) 14 SCC 641, relevant para whereof reads as under:
::: Downloaded on - 31/01/2022 23:27:22 :::CIS 25"28.It was also argued by the learned senior counsel appearing for .
respondent No.1 that the entries for the period had an element of adverse reflection and for that purpose the seniority of respondent No.1 was downgraded and, therefore, the ACR ought to have been communicated to respondent No.1. In our opinion, the observations of the High Court are wholly unjustified inasmuch as the post of Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on the basis of merit. No judicial review of DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and Rules is warranted. The norms and procedure for DPC are prescribed in O.M. dated 10.4.1989. It is thus seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a government employee. The decision of the Central Government is in strict accordance with the prevailing rules and government instructions. In the absence of any violation, the impugned order of the High Court while undertaking a judicial review under Art.
226 of the Constitution of India, is wholly unjustified. Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time. Therefore, in the facts and circumstances of the present case, where there is no adverse remarks whatsoever against respondent No.1, the High Court ought not to have interfered with and passed the impugned direction. This apart, as per the instructions contained in para 6.21 of DOPT Order No. 22011/5/86/Estt. D dated 19.4.1981, as amended, the DPC is not required to be guided merely by the overall grading, if any, that may be recorded in the CRs but to make its own assessment on the basis of the entries in the CRs. The DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the impugned order of the High Court, in our opinion, is liable to be set aside."
17. Reliance is also placed on Union of India and Anr. v. A.K. Narula, 2007 (11) SCC 10, relevant para whereof reads as under:
"15. The guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 26 on the ground of bias, malafides or arbitrariness, the selection calls .
for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court will not interfere (vide State Bank of India v. Mohd. Mynuddin [1987 (4) SCC 486], Union Public Service Commission v. Hiranyalal Dev [1988 (2) SCC 242] and Badrinath v. Government of Tamil Nadu [2000 (8) SCC 395]). The review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R S Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1.4.1987 to 31.3.1988 from 'good' to 'very good', the overall grading of the respondent continued to remain as 'good'. There was no question of moving him from the block of officers with the overall rating of 'good' to the block of officers with the overall rating of 'very good' and promoting him with reference to the DPC dated 13.6.1990. In the absence of any allegation of mala fide or bias against the DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to respondent, as was done in the case of R. S. Virk."
18. Reliance is also placed upon the judgment rendered by this Court in case titled Brijesh Sood v. State of HP and Ors, 2021 (3) Shimla Law Cases 1270, wherein this Court while placing reliance upon the aforesaid judgments held that the correctness of grading given in ACRs is not subject to judicial review, but also held that DPC is well within its right to upgrade/downgrade the ACRs of person to be considered for promotion and it is not bound to mechanically follow the grading given by Reporting/Reviewing Officer.
19. Careful perusal of aforesaid exposition of law taken into consideration clearly reveals that decision of DPC is not subject to judicial review unless selection is assailed as being vitiated by the malafidies or on ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 27 the ground of it being arbitrary. Similarly, it is quite apparent from the .
perusal of the notifications issued by the government from time to time and the judgments relied upon herein above, that DPC is necessarily required to make its own assessment on the basis of entries in the ACRs and is not to be guided by the overall grading given by the reporting/reviewing officers.
20. Now being guided by the aforesaid instructions issued by the Government of India as well as State of Himachal Pradesh and law on the point, this court would make an endeavour to ascertain the correctness of submissions having been made by the learned counsel for the parties vis-à-
vis correctness of the decision made by the Departmental Promotion Committee recommending respondent No.3 for promotion to the post of Executive Engineer and thereafter to Superintending Engineer. There cannot be any dispute to the fact that ACRs of respondent No.3 were downgraded by the Reviewing Authority from "very good" to "good" and as such, she was compelled to approach the competent court of law, which permitted her to make representation to the Secretary (Housing) to make representation. It is also not in dispute that Additional Chief Secretary (Housing) to the Govt. of Himachal Pradesh, passed order dated 17.8.2017 on the representation of respondent No.3 (Annexure P-7), whereby ACRS for the year, 2003, 2004, 2005 and 2006 were ordered to be upgraded from ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 28 "good" to "very good". Though aforesaid order was laid challenge by the .
petitioner, wherein Division Bench of this Court vide judgment dated 24.7.2019, held that the petitioner herein has no locus to lay challenge to the up-gradation of the ACRs, if any, of respondent No.3.
21. Now question remains whether ACRS upgraded by the Secretary (Housing) on the representation having been made by respondent No.3 could be mechanically accepted by the DPC while considering the petitioner for promotion to the post of Executive Engineer and thereafter to Superintending Engineer or it was required to make its own assessment on the basis of entries made in the ACRs for the relevant years.
22. Though Mr. Dilip Sharma, learned senior counsel representing respondent No.3, made a serious attempt to persuade this Court to agree with his contention that since ACRs stood upgraded pursuant to order passed by the Secretary (Housing) on the representation filed by respondent No.3, there was no occasion, if any, for DPC to look into the record of ACRs for relevant years, but after having carefully perused office memorandums issued by the Ministry of Personal Public Grievance and Pension, Government of India, from time to time as well as judgments on the subject rendered by the Honble Apex Court as well as this Court from time to time, this Court finds no reason to agree with the aforesaid contention of Mr. ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 29 Sharma, learned Senior Counsel. By now it is well settled that DPC is .
required to make its own assessment on the basis of entries in the ACRs and not to be merely guided by overall grading and in cases where the assessment by DPC(s) are apparently not in line with the grades in ACRs, the DPC should appropriately substantiate its assessment by giving reasons, which can only be done after perusing the entire record of ACRs.
Mr. Sharma, tried to carve out a case that need for DPC to peruse the entire record would only arise if it disagrees with the overall grading given to the office being considered for promotion. However, this Court does not subscribe to the aforesaid view for the reason that before making the overall grading after considering the ACRs for the relevant years, DPC otherwise is required to take into account major or minor penalties and adverse remarks in the ACRs for the period under consideration. While clarifying the aforesaid aspect of the matter, Ministry of Personnel, Public Grievances and Pension, vide office memorandum dated 28.4.2014, has categorically stated that DPC should not be guided merely by the overall grading, if any, that may be recorded in the ACRs, but should also make its own assessment on the basis of entries in the ACRs because it has been noticed that sometimes the overall grading in the ACRs may be inconsistent with the grades under various parameters or attributes. Hon'ble Apex Court in ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 30 various judgments as have been taken note herein above, has repeatedly .
held that DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms and when process of assessment is vitiated either on account of bias, malafides or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court would normally not interfere. Though an employee has no right to promotion, but definitely, he has right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. Person desiring to have promotion is definitely expected to be an employee of a unblemished record and as such, DPC while considering person concerned for promotion needs to examine his/her entire record and cannot be guided merely by overall grading given in the ACRs because sometimes same may not be consistent with the grades under various parameters or attributes. No doubt, DPC enjoys full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it and evaluation made by an Expert Committee should not be easily interfered with by the ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 31 Court but once assessment smacks of bias, malafides or arbitrariness, the .
selection calls for interference.
23. Mr. Dilip Sharma, learned counsel for respondent No.3 vehemently argued that since there is no malafide, if any, alleged against the members of the DPC and it while assessing the petitioner and respondent No.3 for promotion have adopted same yardsticks, there is no occasion, if any, for this court to intervene. No doubt, no specific malafides have been alleged in the petition against the members of DPC, and similarly, record placed on record reveals that DPC promoted both the petitioner and respondent No.3 on the basis of their overall grading, which in the case of respondent No.3, was upgraded by the Secretary (Housing), but once there is a complete departure from the laid down procedure, whereby DPC is/was under obligation to make its own assessment on the basis of entries in the ACRs and it only having taken note of the overall grading proceeded to recommend the candidate concerned for promotion, the decision being totally contrary to the law needs to be interfered with.
Though Mr. Sharma while making this court peruse record of DPC strenuously argued that the entire record of ACRs was seen by the DPC, but such submission of him is not tenable being totally contrary to the record. DPC proceedings held on 9.8.2019 and 16.8.2019 (P-19 and P-20) ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 32 clearly reveal that DPC appreciated the revised ACRs of Smt. Anjori Kapoor-
.
respondent No.3 and the petitioner, meaning thereby, at no point of time, DPC made an effort/endeavour to look into the ACRs of the relevant years so that it could see whether overall grading given by the competent authority while upgrading her from "good" to "very good" is in consonance with the grading under various parameters or attributes. Interestingly, DPC in its meeting held on 9.8.2019, recommended respondent No.3 for promotion as Executive Engineer from Assistant Engineer w.e.f. 16.6.2007 and subsequently on the basis of same, in its next meeting held on 16.8.2019, recommended respondent No.3 for promotion to the post of Superintending Engineer. Having carefully perused the record of DPC as has taken note herein above, this court is fully convinced and satisfied that DPC in slipshod manner, without perusing ACRs of the officers being considered for promotion for the relevant years proceeded to make recommendation merely on the basis of ACRs revised on the order of Additional Chief Secretary HIMUDA. Aforesaid conclusion drawn by this Court is further substantiated from the noting given by the Minister Incharge, P-26, who being dissatisfied with the decision of DPC ordered for revised DPC. Interestingly, this Court finds from the record that pursuant to orders passed by the Minister Incharge, Review DPC was to be ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 33 conducted, however, in the case at hand, meeting of Review DPC came to .
be held to further review the minutes of review DPCs held on 9.8.2019 and 16.8.2019. Careful perusal of minutes of aforesaid meeting nowhere suggests that Review DPC proposed to be held by the Minister Incharge scanned the entire record of the candidate being considered for promotion de-novo. Rather, Review DPC under the chairmanship of Secretary (Housing) Government of Himachal Pradesh merely held the meeting to review/ consider further review of Review DPC held on 9.8.2019 and 16.8.2019.
It has been specifically recorded in the minutes of this committee that "the present DPC also finds no reason not to upgrade ACRs in respect of Smt. Anjori Kapoor, for consideration as the same has been decided by the competent authority with a detailed and speaking order also in compliance of the Hon'ble Court order."
24. The committee noticed that there is no circumstance, which can be considered for having further review of Review DPC held on 9.8.2019 for the post of Executive Engineer (Civil) and on 16.8.2019, for the post of Superintending Engineer and found that the Review DPCs dated 9.8.2019 and 16.8.2019 have been convened in accordance with the prescribed procedure. Minutes of meeting held on 30.12.2019 (Annexure P-21) itself suggest that no Review DPC, if any, ever came to be held pursuant to the ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 34 direction issued by the Minister Incharge, who being fully dissatisfied with .
the minutes of DPC, held on 9.8.2019 had specifically ordered for review DPC, rather fresh Review DPC though held its meeting on 30.12.2019, but not conducted fresh proceedings, rather concluded in its recommendation that there is no reason to consider further review of review DPC held on 9.8.2019 and 16.8.2019 for the posts in question. Since order upgrading ACRs in respect of respondent No.3 was passed by the competent authority with a detailed and speaking order, DPC deemed it not fit to tinker with the same. It appears that DPC was so much overawed with the order passed by the Secretary (Housing) upgrading the ACRs of respondent No.3 that it thought not proper to follow the prescribed procedure while recommending respondent No.3 for promotion. No doubt, ACRs of respondent No.3 came to be upgraded from "good" to "very good" pursuant to order passed by the Secretary (Housing), but DPC while considering respondent No.3 for promotion is/was under obligation to see the entire record of ACRs for the relevant years to ascertain whether overall grading given in favour of respondent No.3 is consistent with the grades under various parameters or attributes. True, it is that Secretary (Housing) being Appellate Authority was well within his/her rights to upgrade or downgrade the ACRs of respondent No.3 on her representation, but order of up-gradation, if any, ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 35 by Secretary (Housing) being appellate authority could not be taken as a .
gospel truth by the DPC while considering respondent No.3 for promotion, rather it was under obligation to scan the entire service record of her including ACRs for the relevant years to ascertain whether overall grading is consistent with the grades under various parameters. Mere up-gradation of overall grading by the competent authority/Secretary (Housing) would not make respondent No.3 entitled for promotion, rather for that purpose, entire service record is/was required to be taken into consideration by the DPC as has been repeatedly advised/clarified by the Government of India from time to time by issuing circulars as have been taken herein above. No doubt, the Division Bench of this Court has already held that the petitioner herein has no locus to challenge the up-gradation of the ACRs of respondent No.3, but that does not mean that DPC is estopped from perusing the entire service record of respondent No.3 including the ACRs of the relevant years while considering her for promotion. DPC being specialized agency is not to be guided by the overall grading, but to ensure that sincere, deserving and hardworking officer is promoted, it is required to make its own assessment on the basis of entries in the ACRs. While doing so, it is not merely to take into consideration the fact that over all grading of respondent No.3 stands upgraded by the Secretary (Housing), ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 36 rather it is/was under duty to see whether up-gradation made by the .
Secretary (Housing) is in consonance with the grades given under various parameters in the ACRs of respondent No.3 for the relevant years. Though entire record of ACRs of respondent No.3 for the relevant years stands annexed with the petition, which is otherwise not disputed/refuted, but any finding qua the same at this stage by this Court would amount to substitution of opinion/decision, if any, to be arrived/formed by the DPC if it is ordered to review its decision for the reasons stated herein above.
Hence, this court purposely restrains itself to not to go into that aspect of the matter at this stage.
25. There is yet another aspect of the matter that Secretary HIMUDA vide notification dated 14.7.2005 (P-23), itself ordered that DPC would consist of following officers; 1.) Principal Secretary (Housing) as Chairman; 2.) CEO-cum-Secretary as Member; and 3.) Executive Engineer HIMUDA as Member. But if the minutes of review DPC held on 30.12.2019 (P-21) which upheld the recommendation of earlier review Departmental Promotion Committee held on 9.8.2019 is seen, it clearly reveals that such meeting held under the Chairmanship of CEO-cum-Secretary HIMUDA, but at no point of time, Executive Director, HIMUDA came to be associated in meeting. Though Mr. Amit Singh Chandel, learned counsel for the ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 37 respondent HIMUDA argued that since the Executive Director was not .
available and meeting of DPC was to be held in a time bound manner pursuant to orders passed by this Court, Deputy Secretary (Personal) to the Government of Himachal Pradesh was associated, but it cannot be denied that Deputy Secretary (Personal) to the Government of Himachal Pradesh had no knowledge whatsoever about the working of the petitioner as well as respondent No.3 and as such, department could have waited for some time to ensure the presence of the Executive Director HIMUDA. Be that as it may, since there is specific composition provided under the Rules for formation of DPC for constitution of DPC, department could not have made any departure from the well settled norms and conventions.
26. Reliance is placed upon the judgment rendered by the Hon'ble Supreme Court in similar case titled Sunder Lal v. Union of India and Ors, 2000 (10) SCC 409, wherein it has been held as under:
"5. Despite this, as per the office order dated 9-8-1995, the Departmental Promotion Committee for various Group 'A' and 'B' posts in the Official Languages Wing, Legislative Department, Ministry of Law, Justice and Company Affairs was constituted as follows:
(A) For promotion to the grades of Joint Secretary and Legislative Counsel (Hindi Branch):
(a) Chairman/Member, Union Public Service Chairman
Commission
(b) Secretary, Legislative Department Member
(c) Additional Secretary, Legislative Department Member
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38
.
(d) An officer of the appropriate level belonging to Member
a Scheduled Caste/Scheduled Tribe to be co-
opted from any other ministry/department
6. Before the Tribunal, it was pointed out that the addition of the 4th Member was not necessary in view of the fact that the Secretary, Legislative Department himself was belonging to a Scheduled Caste and there was no necessity of co-opting for the 4th member.
7. In our view, the finding given by the Tribunal cannot be said to be in any way illegal or erroneous. Statutory rule for the constitution of a Departmental Promotion Committee provides that the Committee shall consist of three named members, i.e. (i) Chairman/Member, UPSC-Chairman; (ii) Secretary, Legislative Department -Member; and (iii) Additional Secretary, Legislative Department -Member. The office memorandum dated 10-4-1989 also specifically provides that if none of the officers included in DPC as per the composition given in the recruitment rules is an SC or ST officer, it would be in order to co-opt a member belonging to the SC or ST, if available within the ministry/department. In view of the admitted fact that the Secretary, Legislative Department himself was belonging to a Scheduled Caste, addition of the fourth member in the Committee was not justified.
8. Therefore, in our view, the order passed by the Tribunal is just and in accordance with the statutory rules. The appeal is dismissed. There will be no order as to costs."
27. Consequently, in view the detailed discussion made herein above as well as law taken note herein above, this Court finds merit in the present petition and accordingly, same is allowed and minutes of meeting held for the post of Executive Engineer (Civil) and Superintending Engineer dated 9.8.2019 (Annexure P-19) and 16.8.2019 (P-20) and review of review DPC meeting dated 30.12.2019 (P-21) are quashed and set-aside, as a consequence of which, order dated 1.1.2020 (Annexure-P-22), promoting respondent No.3 to the post of Superintending Engineer is also quashed and set-aside. Respondents are directed to re-convene the DPC, which ::: Downloaded on - 31/01/2022 23:27:22 :::CIS 39 while considering respondent No.3 for promotion shall take into account .
her entire record of ACRs, to arrive at a decision, whether upgradation of overall grading is consistent/in consonance with the grades /parameters recorded in the ACRs for the relevant years. Since dispute inter-se petitioner and respondent No.3 is hanging fire for the last 14 years, this court hopes and trusts that necessary steps or reconvening of DPC by the department shall be positively taken within a period of two weeks so that entire exercise is done by the DPC within four weeks from the receipt of copy of the judgment. In the aforesaid terms, present petition is disposed of, alongwith pending applications, if any.
17th December, 2021 (Sandeep Sharma),
(manjit) Judge
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