Central Administrative Tribunal - Delhi
A K Sharma vs M/O Defence on 9 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.98/2012
New Delhi this the 9th day of September, 2015
Hon'ble Shri A.K. Bhardwaj, Member (J)
Hon'ble Shri K.N. Shrivastava, Member (A)
Shri Anil Kumar Sharma
Superintending Engineer,
Director (Navy & DP) IHQ of MoD (Army),
Engineer-in-Chief Branch,
New Delhi-110011 ... Applicant
(By Advocate Mr. Mohit Kumar Shah with Mr. Tungesh )
VERSUS
Union of India through
1. Secretary,
Ministry of Defence, South Block,
New Delhi-110011
2. Engineer-in-Chief in Cs' Branch,
Integrated Headquarters of MoD (Army),
Kashmir House, Rajaji Marg,
New Delhi-110010
3. Director General (Pers.) MES E in Cs'Branch,
Integrated Headquarters of MoD (Army),
Kashmir House, Rajaji Marg,
New Delhi-110010
4. Secretary, UPSC,
Shahjahan Road, DHQ, PO,
New Delhi-110011
5. The Secretary,
Ministry of Personnel,
Public Grievances & Pensions,
Department of Personnel and Training,
North Block, New Delhi-110011
6. Sh AK Singh, Chief Engineer,
HQ Chief Engineer (Navy),
Military Engineers Service,
Vishakhapatnam Station Road,
Vishakhapatnam, A.P 530024
7. Sh RK Pandey, Chief Engineer,
HQ Chief Engineer, Jalandhar Zone,
Jalandar Cantonment, Punjab-144005
2
8. Sh DK Tyagi, Chief Engineer,
HQ Chief Engineer, Bareilly Zone,
Sarvatra Bhawan, Station Road,
Bareilly Cantoment, UP 243001
9. Sh SR Ramawat, Chief Engineer,
HQ Chief Engineer, Bhopal Zone,
Sultania Infantry Lines, Bhopal, MP 462001
10. Sh Awdhesh Chandra Verma, Chief Engineer,
Joint Director General (U),
Integrated Headquarters of Ministry of
Defence (Army), Integrated HQ of Ministry of
Defence (Army), Rajaji Marg,
New Delhi-110011
11. Sh IB Duggal, Chief Engineer,
HQ Chief Engineer (Air Force),
Vayu Sena Nagar, Nagpur,
Maharastra-440007
12. Sh. Mahesh Chandra, Chief Engineer,
Chief Engineer, Kolkata Zone,
Ballygunge Maidan Camp,
Gurusahay Road, Kolkata, WB-700019
13. Sunil Kumar Jain, Chief Engineer
HQ Chief Engineer, Pune Zone,
Manekji Mehta Road, Pune Cantonment,
Pune, Maharastra-411001
14. D.R.Kurdia, Chief Engineer
HQ Chief Engineer (Air Force),
Udampur, Air Force Station,
Udhampur J&K 182101
15. Hemant Kumar Bhandari, Chief Engineer,
HQ Chief Engineer Jabalpur Zone,
Post Box No.84, Bhagat Marg,
Jabalpur Cantonment, MP 482001
16. Hareshwar Dayal, Chief Engineer
Joint Director General (Personnel),
HQ Chief Engineer Central Command
Mail Road, Lucknow Cantonment,
Lucknow, UP 226001
17. Jagdish Kumar Popli, Chief Engineer,
Director, Ministry of Tribal Welfare,
Shastri Bhawan, A-Wing, Dr. Rajendra Prasad Road,
New Delhi-110001
18. Venkatesalu Ramdoss, Chief Engineer,
Joint Director General, Arbitration,
Cariappa Road, Lucknow Cantonment,
Lucknow, UP 226001
3
19. Ghan Shyam Sharma,
Chief Engineer, Director,
Central Vigilance Commission, Satarkata
Bhawan, GPO Complex, Block A, INA,
New Delhi-110023
20. Keshav Kumar Gupta, Chief Engineer
HQ Chief Engineer Chandigarh Zone,
N-Area, Airport Road, Chandigarh 160003
21. Brij Kishore Pandey, Additional Chief Engineer,
Principal Director, HQ Married
Accommodation Project (MAO), Kashmir House,
Rajaji Marg, New Delhi-110011
22. Jagdish Rai Garg, Additional Chief Engineer,
Principal Director, HQ Chief Engineer
Pathankot Zone Pathankot, Punjab 145001
23. Devendra Kumar, Additional Chief Engineer
Principal Director, HQ Chief Engineer
Jabalpur Zone, Post Box no.84,
Bhagat Marg, Jabalpur Cantonment,
MP 482001
24. Pradeep Kumar Goel, Additional Chief Engineer,
Principal Director HQ Chief Engineer (Air Force),
Western Air Command, Palam, New Delhi-110045
25. Virendra K.Pareek, Additional Chief Engineer,
Chief Engineer, Delhi Metro Railway
Corporation (DMRC),
DMRC Bhawan, Behind Fire Brigade Station,
Connaught Circus, New Delhi-110001
26. Sahadeva Singh, Additional Chief Engineer,
Delhi Metro Railway Corporation (DMRC),
DMRC Bhawan, Behind Fire Brigade Station,
Connaught Circus, New Delhi-110001
27. Arun Kumar Agarwal, Addition Chief Engineer
Principal Director, HQ Chief Engineer South
West Command, Jaipur Cantonment, Jaipur,
Rajasthan-392912
28. Rajesh Kumar Kamboj, Additional Chief Engineer.
Principal Director, HQ Chief Engineer,
Bhatinda Zone, Bhatinda Military Station,
Punjab 151004
4
29. Brijendra Kumar Jain, Additional Chief Engineer,
Principal Director,HQ Chief Engineer, Udhampur
Zone, Udhampur, Post Office Garhi, J&K 182121
30. Rameshwar Dayal Gupta, Additional Chief Engineer,
Superintending Technical Examiner, HQ
Southern Command, Principal Controller of
Defence Accounts, Near Post Master CDA
Post Office, Pune, Maharastra, 411001.
31. Raghunath P Tripathi, Additional Chief Engineer,
Director, Central Vigilance Commission,
Satarkata Bhawan,
GPO Complex, Block-A, INA,
New Delhi-110023
32. Om Kumar, Additional Chief Engineer (On Leave),
Integrated HQ of Ministry of Defence (Army),
Engineer-in Chief's Branch,
C/o Director General (Personnel), Rajaji Marg,
New Delhi-110011
33. GD Pugalia, Additional Chief Engineer,
Principal Director, HQ Chief Engineer
Southern Command, Menekji Mehta Marg,
Pune Cantonment, Pune, Maharastra-411001
34. Krishna Gopal Dua, Additional Chief Engineer,
Principal Director, HQ Chief Construction
Engineer (North East Projects),
Integrated HQ of Ministry of Defence (Army),
Engineer-in-Chief's Branch,
Rajaji Marg, New Delhi-110011 ... Respondents
(By Advocate Shri Rajesh Katyal and Mrs. Bindra Rana
with Ms Manshi Pathak )
ORDER
(Hon'ble Mr.A.K.Bhardwaj, Member (J):
Having qualified the Engineering Services Examination conducted by the Union Public Service Commission in the year 1978 and being included in the merit/select list at serial No. 46, the applicant joined Military Engineering Service (MES) as Assistant Executive Engineer w.e.f 20.01.1981. He got 5 promotions as Executive Engineer and Superintending Engineer in due course. In terms of the Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules, 2004, the Superintending Engineer with 2 years regular service in the grade possessing qualification as specified in Schedule II is eligible for promotion to the post of Additional Chief Engineer. Relevant excerpt of Schedule-III and Schedule II of the Rules read thus:-
SCHEDULE-III Method of recruitment, field of promotion, minimum qualifying service and educational qualification in the next lower grade or feeder grade for promotion to duty posts in the various grades of the Indian Defence Service of Engineer (Group 'A') Sl. Name of the Method of Whether Field of selection, minimum No duty post and recruitment Selection qualifying service and grade or non- Educational qualification for selection promotion.
post
1 2 3 4 5
xx Xx xx xx xx
3. Additional By promotion Selection (a) Superintending Engineer
Chief with five years regular service in
Engineer the grade; and
(b) possessing qualification as
specified in Schedule II
SCHEDULE-II
Minimum educational qualification and age limits for direct recruits to the post of Assistant Executive Engineer Group 'A' to be filled on the results of the Examination to be conducted by the Union Public Service Commission. A candidate must have:
(i) a degree in Civil, Mechanical or Electrical Engineering from a University incorporated by an Act of the Central or State Legislature in India or other educational institutions established by an Act of Parliament or declared to be deemed as a University under Section 3 of University Grants Commission Act, 1856 (3) of 1956) or a degree or diploma in Engineering from such foreign Universities, Colleges or Institutions and under 6 such conditions as may be recognized by the Government from time to time or possessing qualifications which have been recognized by the Government as equivalent to above qualifications; and
(ii) attained the age of twenty one years but must not have attained the age of thirty years on the first day of August of the year in which the examination is held."
The Departmental Promotion Committee (DPC) met on 30.11.2009 considered the applicant for his promotion to the post of Additional Chief Engineer, but found him unfit for such promotion. The recommendation/assessment of the candidates made by the DPC for the year 2009-2010 read thus:-
"Union Public Service Commission's file No.1/ 33(51)/ 2009-AP-3, Ministry of Def. Ref No.PC-B/41022 /DPC/ ACE/ 2009-10/EI (DPC-1) ASSESSMENT FOR THE YEAR 2009-10 (No. of vacancies-11) S.No. Name (S/Shri) ASSESSMENT
1. S.C. JAIN AS IN SEALED COVER
2. A.K.VERMA FIT
3. R.N.KURMI AS IN SEALED COVER
4. P.K.GUPTA FIT
5. S.S.TIWARI FIT
6. A.K.GUPTA AS IN SEALED COVER
7. V.K.SOOD UNFIT
8. M.P.KESWANI FIT
9. S.K.PARWANI AS IN SEALED COVER
10. K.N.ADHOLEKAR (SC) FIT
11. R.VENKATESARLU UNFIT
12. A.K.SHARMA UNFIT
13. A.K.SINGH (SC) FIT
14. V.K.RANJAN UNFIT
15. R.K.PANDEY FIT
16. D.K.TYAGI FIT
17. S.R.RAMAVAT FIT
18. AWDHESH CHANDRA VERMA FIT
19. I.B.DUGGAL FIT
20. MAHESH CHANDRA (SC) FIT."
On the basis of the recommendation made by the DPC, the Directorate General (Personnel), Military Engineer Services 7 issued panel for promotion of Superintending Engineer to the grade of Additional Chief Engineer in Pay Band-4 ( Rs.37400- 6700 + Grade pay Rs. 8900). The panel included the names of certain such Superintending Engineers who were juniors to the applicant. Thereafter in terms of the provisions of DOP&T OM No.21011/1/2010 Estt A dated 13.04.2010, 6 APAR/ACR of the applicant, below bench mark were made available to him to enable him to make representation against the same. The applicant availed the opportunity and made six separate representations dated 3.06.2010 (Annexure A-VII) against the gradings below bench mark communicated to him. The duration of the ACR period, date of representation and outcome of the same are mentioned hereinbelow:-
ACR period Date of Outcome of the
representation representation
1.04.2003 3.06.2010 Rejected in terms of
to 01.09.2003 order dated 07.04.2011
1.04.2002 3.06.2010 Rejected in terms of
to 10.10.2002 order dated 07.03.2011
1.04.2005 3.06.2010 Rejected in terms of
to 19.09.2005 order dated 29.12.2010
11.10.2002 3.06.2010 Upgraded in terms of
to 31.03.2003 order dated 12.11.2010
20.09.2005 3.06.2010 Upgraded in terms of
to 31.03.2006 order dated 20.10.2010
1.04.2005 3.06.2005 Rejected in terms of
to 19.05.2005 order dated 29.12.2010
In the wake, the applicant filed the present OA, praying therein:-
"i) To call for the records of the ACRs for relevant years and the proceeding of the DPC.
ii) To quash the impugned order/letter dated 11.12.2009 and subsequent orders, promoting persons junior to the applicant in so far as it 8 does not contain the name of the applicant for promotion to the grade of Additional Chief Engineer.
[
iii) To direct the respondents to upgrade all PCRs/ACR from below benchmark to benchmark PCRs/ACR or alternate ignore these PCRs/ACR which cannot be reviewed.
iv) To direct respondents to hold review DPC on a year to year basis and not to take into account downgraded entries in the ACRs of the applicant for any of the years for which ACRs are to considered by the DPC which have not been communicated to the applicant at the time of holding DPC i.e. 30-11-2009. And communicated at a later date, represented by applicant, but four out of six representations have been rejected on grounds not supported by law of land or law of equality and natural justice, arbitrary, and is full of deliberate, malicious and fraudulent intentions of respondent No.3.
v) To direct the respondents to pass necessary orders on the basis of such review DPC for promotion of the applicant to the grade of Additional Chief Engineer with effect from the date applicant's juniors have been so promoted with all consequential benefits.
vi) And any current and further promotion of Chief Engineer panel should be stayed, where applicant's juniors are likely to be promoted.
vii) To direct the respondents to withhold further DPC for the promotion to the grade of Additional Chief Engineer and Chief Engineer, till the judgment of this case from the Hon'ble Tribunal is passed and all promotion will be request to decision of the OR
viii) To award cost of litigation in favour of applicant and against the respondent.
ix) To grant any other relief as may be deemed fit and proper under the circumstance of the case in favour of applicant and against respondent."
Learned counsel for the applicant espoused:-
9(i) In view of the judgment of Hon'ble Supreme Court in Abhijit Ghosh Datidar Vs Union of India and Ors (2009 (16) SCC 146), the grading below bench mark not communicated to applicant before 30.11.2009 i.e. the date when DPC met should be ignored.
(ii) Once the grading in ACRs for certain relevant period were upgraded, the applicant should be reconsidered for promotion by a review DPC.
(iii) The representations made by the applicant against the grading in the ACR not upgraded have been rejected on account of wrong projection of factual information regarding APAR/ACR profile.
2. On the other hand, learned counsels for respondents could not raise any cogent objection to the plea put forth by the learned counsel for applicant that on up-gradation of the grading in two of his ACRs, he need to be reconsidered for promotion by a review DPC, but regarding the plea of ignoring the grading below bench mark in his consideration for promotion, the learned counsels submitted that the legal position had been finally settled in terms of the judgment of Hon'ble Supreme Court in Sukhdev Singh Vs Union of India and Others (Civil Appeal No. 5892/2006), wherein the law declared in Dev Dutt Vs Union of India and Others 10 (2008) 8 SCC 725) has been approved. Regarding the orders passed in the representation made against the grading below benchmark, the learned counsels submitted that the applicant was not a consistent performer and the ACR reflect his conduct and performance during the report period.
3. We heard counsels for parties and perused the record.
Since it had been accepted in principle that the confirmation and promotion etc. should be based on assessment of confidential dossiers, it was considered the matter of greatest importance for the efficiency and morale of the services that the value of a proper system of confidential report was recognized by all concerned. In the wake, the Head of every Department/office was made to regard it as his personal and special responsibility to ensure that the Annual Confidential Reports were properly maintained in respect of all persons working under his direct or ultimate control. In order to minimize the operation of the subjected human element and of conscious or unconscious bias, it was provided that the confidential report of every employee should contain the assessments by more than one officer except in cases where there was only one supervisory level above the officer reported upon. The financial year was kept as reporting period for ACR.
When normally only one ACR/APAR is required to be written for the financial year, the writing of two or more independent report for the same year by different reporting officer in the 11 event of change in the reporting officer during the year is not objected. Nevertheless the minimum period for which an ACR can be written is three months. When the reporting Officer or the officer to be reported upon is transferred or quit his chair for a period of more than three months, the reporting officer is required to write a report indicating the period covered by it.
Irrespective of the duration of the report period, the report is written at the end of financial year i.e. within one month of the expiry of the report period. Even an officer placed under suspension is competent to write the report within two months of his suspension or one month of the end of report period.
When the reporting officer is allowed to give the report of his subordinates within one month of his retirement or demission of office, the reviewing authority is fully bereft of reviewing the ACR after his retirement. When assessment of certain quality of general importance such as integrity, intelligence, keenness, industry tact, attitude to superiors and subordinates, relations with fellow employees etc. should invariably find place in the report, additionally every confidential report should carry a general appreciation of the character, conduct, attitude and shortcomings of the officer reported upon. Reference to specific incidence to be made, if at all is only by way of general nature, general inefficiency, dilatoriness, lack of initiative or judgment etc. The remarks in the ACR like doubtful character and the complaints / accepting illegal gratification can be given 12 only on established facts and not on mere suspicion. Where an adverse remark is recorded in respect of an official having consistently good record, some details regarding the same should invariably be given.
4. In terms of the provisions of G.I D.P.& A.R. O.M.No.21011/1/77-Estt, dated 30.01.1978, all adverse entries in the confidential report of Government servant, both on performance as well as on basic quality and potential should be communicated along with a mention of good points within one month of their being recorded. The communication should be in writing and a record to that effect should be reflected in the ACR dossier of the Government servant concerned. In terms of the D.P. & A.R. O.M.No.51/3/74-Estt.(A) dated 22.05.1975, these are the adverse remarks only which are required to be communicated/forwarded to the officer reported upon with the intention that he should try to improve himself in respect of the defects highlighted in the remarks. Earlier there was no provision for communicating the grading of officers being done on the basis of general remarks even when it is adverse. The OMs read thus:-
"G.I D.P.& A.R. O.M.No.21011/1/77-Estt, dated 30.01.1978.
20. Communication of adverse entries and how to be done.- All adverse entries in the confidential report of Government servant, both on performance as well as on basic qualities and potential should be 13 communicated along with a mention of good points within one month of their being recorded. This communication should be in writing and a record to that effect should be kept in the CR dossier of the Government servant concerned."
"D.P. & A.R. O.M.No.51/3/74-Estt.(A) dated 22.05.1975 Only such of the adverse entries as are accepted by the countersigning authority, if any, need be communicated. The countersigning authority should, therefore, normally indicate whether it agrees or disagrees with the remarks of the reporting officer. It should also record additional remarks, wherever necessary, if the report is too brief, cryptic or vague. Along with the adverse entry, the substance of the entire report including what may have been stated in praise of the officer should also be communicated. The improvements made in respect of the defects mentioned in the earlier report should also be communicated to the officer in a suitable form. A copy of the letter communicating the adverse remarks duly acknowledged by the official concerned should be kept in the CR file and the fact of communication of the entries should be recorded in the report itself by the authority communicating them.
Great attention should be paid to the manner and method of communication of adverse remarks in order to ensure that the advice given and warning or censure administered, whether orally or in writing shall, having regard to the temperament of the officer concerned, be most beneficial to him. The memo. forwarding the adverse remarks to the officer reported upon should be couched in such a language that it does not produce a sense of resentment in the officer reported upon and that it makes it clear to him that the intention of communicating these defects to him is that, he should try to improve himself in respect of those defects.14
Remarks about the physical defects of the officers noted in the confidential reports need not be communicated. The grading of officers being done on the basis of the general remarks in the report should not also be communicated, even if it is adverse."
The G.I. D.P. &A.R. O.M No. 21011/1/77 dated 30.01.1978 provide for representation against the adverse remarks. The OM read thus:-
"22. Representation against adverse remarks.-
Only one representation against adverse remarks (including reference to 'warning' or communication of displeasure of the Government or 'reprimand' which are recorded in the confidential report of the Government servant) should be allowed within one month of their communication. While communicating the adverse remarks to the Government servant concerned, the time-limit should be brought to his notice. However, the competent authority may, in its discretion, entertain a representation made beyond this time if there is satisfactory explanation for the delay."
The G.I. D.P. &A.R. O.M No. 21011/1/77 dated 30.01.1978 provide for the authority to whom representation lie and the time limit for the disposal of representation. The general instructions read thus:-
"23. To whom representation lies.-
Representation against adverse remarks will lie to the authority immediately superior to the countersigning authority, if any, or to the reporting officer. If the immediate superior authority has already reviewed the confidential report in question and has also expressed his view either agreeing or disagreeing with the adverse remarks recorded and accepted by the countersigning authority, the representation should, in that event, lie to the next higher authority.15
24. Time-limit for disposal of representation against adverse remarks and when note to be taken of such remarks.- All representations against adverse remarks should be decided expeditiously by the competent authority and in any case, within three months from the date of submission of the representation. Adverse remarks should not be deemed to be operative if any representation filed within the prescribed time-limit is pending. If no representation is made within the prescribed time, or once this has been finally disposed of, there would be no further bar to take notice of the adverse remarks."
The manner of disposal of representation is indicated in D.P. & A.R.O.M.No.51/5/72-Ests.(A) dated 20.05.1972 and DG P & T letter No.27-2/83-Vig.II dated 09.01.1984 talk of the follow up action, which read thus:-
"25. Manner of disposal of representation.- The following procedure should be adopted in dealing with representations from the employees against the adverse remarks communicated to them:-
(1) Representations against adverse remarks should be examined by competent authority in consultation, if necessary, with the reporting officer and countersigning authority, if any. (2) If it is found that the remarks were justified and that the representation is frivolous, a note may be made in the confidential report of the petitioner that he did not take the correction in good spirit.
(3) If the competent authority feels that there is no sufficient ground for interference, the representation should be rejected and the petitioner informed accordingly.
(4) If, however, it feels that the remarks should be toned down, it should make necessary entry separately with proper attestation at the appropriate place of the report; the correction should not be made in the earlier entries themselves.16
(5) In the rare event of the competent authority coming to the conclusion that the adverse remark was inspired by malice or was entirely incorrect or unfounded, and therefore deserves expunction, it should order accordingly.
Before, however, taking such an action, it should bring it to the notice of the Head of the Circle or other Administrative Office if it does not occupy that position and obtain his concurrence.
When a representation against adverse remarks is wholly or partially upheld, the particulars of the orders based thereon should be recorded in the report itself. If it is decided to tone down the remarks, the competent authority may make the necessary entries at the appropriate place of the report under proper attestation, but the past entries should not be corrected. If the remarks are ordered to be expunged, they should be effectively obliterated both in the confidential report as well as in the copy of the letter communicating those remarks. A copy of the order based on such a representation should not be kept in the CR file. Where a penalty is set aside on an appeal or review, the copy of the punishment order should be removed from the CR file as well as the adverse remarks recorded on the basis of the penalty expunged. In a case where the penalty is modified by the appellate or revising authority, the entry in the confidential report originally made on the basis of the penalty awarded should also be immediately modified accordingly.
"DG P & T letter No.27-2/83-Vig.II dated 09.01.1984
26. Column of report should not be kept blank after expunction of adverse remarks. It has been observed that in a few cases, after the expunction of the adverse remarks, the relevant column (s) was/were left blank, i.e. without any remarks, thus making the report incomplete.
It may be appreciated that an incomplete report cannot be relied upon for a fair and objective assessment of the officer 17 concerned for his confirmation, promotion, etc. It is essential that the annual confidential reports are complete in all respects. In the circumstances, where on consideration of a representation against adverse remarks, the competent authority comes to the conclusion that the remarks deserves to be expunged, it should see whether total expunction of the remarks will leave the relevant column(s) blank; and if it finds the position to be so, it should order modification of the relevant remarks in a suitable manner so that the column(s) in question does/do not remain blank."
5. From the aforementioned, it is clear that before the judgment of Hon'ble Supreme Court in Dev Dutt Vs. Union of India and Ors (ibid), there was no procedure for communicating the grading in the ACR even when adverse as well as there was no such provision that the expunction/deletion of adverse remarks from ACRs could result in up-gradation of the grading. The object and the reason was bald and simple i.e. though the ACR was vital documents, influence the decision of the concerned Committee in confirmation and promotion of the employee, but these are remarks against various columns of ACR and not the over all grading which is material. Even the column relating to "fitness for promotion" was deleted from the ACR vide G.I.D.P & A.R. O. M.35014/81-Estt (A) dated 16.05.1985. The OM read thus:-
"35. Deletion of column relating to "fitness for promotion" from CR form.-1. It has since been decided that the column relating to "Fitness for Promotion" shall be deleted in the form of CR for employees of the level of Assistants and below. Action may be taken to delete the column relating to "Fitness for Promotion" in the forms of CR for various services and posts."18
When the link and nexus between ACR and promotion could be construed correctly, the scope of ramification of ACR on promotion could not be comprehended in correct perspectives, which led to flood of litigation. One of the areas where litigation could crop up is timing of communication of ACR and representation against it. Had the Government servant and the authority correctly appreciated the difference between the adverse remarks and grading in the ACR and the manner and scope of the appreciation of ACR by the concerned Committee while considering employees for promotion /selection/ confirmation etc. the litigation could be controlled and limited.
To put the proposition in correct prospective, we may refer to the ramification of ACR on promotions and the manner in which ACRs are appreciated by the DPC/Selection Committee while considering an individual for promotion. In terms of the provisions of G.I. Dept of Per. & Trg OM No.222011/5/86- Estt.(D) dated 10.04.1989, the DPCs enjoy full discretion to devise their own methods and procedure for objective assessment of the suitability of candidates who are to be considered by them. When CRs are considered as basic inputs on the basis of which assessment is to be made by each DPC, it is not so that it has to be guided by the over all grading only.
The DPC should make its own assessment on the basis of entries in the ACRs. Clause 6.1.2 of the guideline read thus:-
"6.1.2. At present, DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates 19 who are to be considered by them. In order to ensure greater selectivity in matters of promotions and for having uniform procedures for assessment by DPCs, fresh guidelines are being prescribed. The matter has been examined and the following broad guidelines are laid down to regulate the assessment of suitability of candidates by DPCs."
The overall grading required to be given by the DPC has been indicted in clause 6.2.1 of the guideline, which read thus:-
"6.2.1 Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence-
(a) to (d) xxx
(e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes. ...."
Clause 6.3.1 (b) of the guideline provides that the DPC should determine the merit of those being assessed for promotion with reference to the prescribed benchmark and accordingly grade the officers as 'fit' or 'unfit' only and only those officers who were graded 'fit' (i.e. who meet the prescribed benchmark) by the DPC should be included and arranged in the select panel in the order of their inter se seniority in the feeder grade. The view that the DPC should not be guided merely by over all grading, but should make its own assessment on the basis of the entry in the ACR was also taken by the Hon'ble Supreme Court in 20 Union Public Service Commission Vs. K.Rajaiah (2005) 10 SCC 15). Relevant excerpt of the judgment read thus:-
"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 "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. Das Vs. Union of India [1986 (Suppl.) SCC 617] at Page 633."
In 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 21 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 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."
Nevertheless, since the DPC could not in fact discharge it's duties in terms of the aforementioned guidelines and instead of making its own assessment on the basis of entries in ACRs followed the over all grading therein, the controversy cropped up. The candidates/employees started questioning the over all grading in the ACRs on various grounds. It was the judgment of Hon'ble Supreme Court in U.P.Jal Nigam and Others Vs. Prabhat Chandra Jain (1996) 2 SCC 363) which gave a new dimension to the administrative law pertaining to ACRs and instead of remarks/adverse remarks in the reports, the over all grading started gaining primacy.
6. In U.P.Jal Nigam and Others Vs. Prabhat Chandra Jain (ibid), it could be viewed that if the grading in ACR goes a step down, like fall from 'very good' to 'good', the lower grading should not ordinarily be an adverse entry. Nevertheless, 22 the only taken in the case was that the steep fall in overall grading in ACRs of subsequent year is not permissible.
Relevant excerpt of the judgment read thus:-
"3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect and adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. .
7. In State of U.P. Vs. Yamuna Shanker Misra and Another (1997) 4 SCC 7), it could be ruled that the remain in the ACR against the employee reported upon is required to be communicated to the concerned employee. Relevant excerpt of the judgment read thus:-
23"7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
8. In Satya Narain Shukla Vs. Union of India and Ors ( 2006) 9 SCC 69), the plea that the remarks like 'good' or 'very good' made in ACR should be made compulsorily communicable was not accepted. Para 29 of the judgment read thus:-
24"29. The appellant also argued that the remarks made in the ACR were not communicated to him. It was also urged by the appellant that this Court should direct the authorities to streamline the whole procedure so that even remarks like 'good' or Very good' made in ACRs should be made compulsorily communicable to the officers concerned so that an officer may not lose his, chance of empanellment at a subsequent point of his service. In our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection. We can only examine if the procedure for selection as adopted by the Government is unconstitutional or otherwise illegal or vitiated by arbitrariness and mala fides.
The view so taken was followed in K.M.Mishra Vs. Central Bank of India and Others ( 2008 (9) SCC 120). Para 17 of the judgment read thus:-
"17. Mr. Srivastava then submitted that in the preceding years the appellant had `Excellent' ratings and in the year 1995 he had `Very Good'. The rating `Good' for the year 1996-97 was thus a climb down and it was incumbent upon the authorities to intimate the appellant about his ratings for the two years in question. Since no intimation was given to the appellant the ratings for those two years should not have been taken into account and instead the ratings for the earlier years should have been considered for the purpose of promotion. We are unable to accept the submission. In Satya Narain Shukla vs. Union of India & Ors., 2006 (9) SCC 69 (81) it was held and observed as follows :
"29. The appellant also argued that the remarks made in the ACR were not communicated to him. It was also urged by the appellant that this Court should direct the authorities to streamline the whole procedure so that even remarks like "good" or "very good" made in ACRs should be made compulsorily communicable to the officers concerned so that an officer may not lose his chance of empanelment at a subsequent point of his service. In our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection. We can only examine if the procedure for selection as adopted by the Government in unconstitutional or otherwise illegal or vitiated by arbitrariness and mala fides."25
Nevertheless, when on September 16, 2008, aforementioned view was taken on May 12, 2008 in Dev Dutt Vs. Union of India and Others (ibid), a different Division Bench of Hon'ble Supreme Court had taken a different view. The view taken in Dev Dutt Vs. UOI and Ors was that the good entry (grading in ACR) should be communicated to the appellant to enable him to make a representation against the same if so chooses and if the entry is upgraded, he should be reconsidered for promotion retrospectively by convening review DPC. By the time Hon'ble Supreme Court gave the aforementioned judgment, the appellant, namely, Dev Dutt had already retired from service. In para 23 of the judgment, Hon'ble Supreme Court ruled that the 'good' entry having adverse impact on promotional opportunity, operates as an adverse entry. Para 22 to 44 of the judgment read thus:-
"22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyra-midical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.
23. In the present case, the action of the respondents in not communicating the 'good' entry for the year 1993-94 to the appellant is in our opinion arbitrary and violative of natural justice, because in substance the 'good' entry operates as an adverse entry (for the reason given above).26
24. What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarized in one word : fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on the situation and the context.
25. Lord Esher M.R. in Voinetvs. Barrett (1885) 55 L.J. QB 39, observed: "Natural justice is the natural sense of what is right and wrong."
26. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the 'good' entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case.
27. A large number of decisions of this Court have discussed the principles of natural justice and it is not necessary for us to go into all of them here. However, we may consider a few.
28. Thus, in A. K. Kraipak & Ors. vs. Union of India & Ors., AIR 1970 SC 150, a Constitution Bench of this Court held :
"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alterant pattern).
Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice ".
(Emphasis supplied) The aforesaid decision was followed by this Court in K. I. Shephard & Ors. vs. Union of India & Ors., AIR 1988 SC 686 (vide paras 12-15). It was held in this 27 decision that even administrative acts have to be in accordance with natural justice if they have civil consequences. It was also held that natural justice has various facets and acting fairly is one of them.
29. In Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant, AIR 2001 SC 24, this Court held (vide para 2):
.... the doctrine (natural justice) is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action".
(Emphasis supplied) In the same decision it was also held following the decision of Tucker, LJ in Russell vs. Duke of Norfolk, (1949) 1 All ER 109:
"The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth".
3o. In Union of India etc. vs. Tulsiram Patel etc., AIR 1985 SC 1416 (vide para 97) a Constitution Bench of this Court referred to with approval the following observations of Ormond, LJ. in Norwest Hoist Ltd. vs. Secretary of State for Trade, (1978) 1, Ch. 201 :
"The House of Lords and this court have repeatedly emphasized that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case".
(Emphasis supplied)
31. Thus, it is well settled that the rules of natural justice are flexible. The question to be asked in every case to determine whether the rules of natural justice have been violated is : have the authorities acted fairly?
32. In Swadeshi Cotton Mills etc. vs. Union of India etc. AIR 1981 SC 818, this Court following the decision in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner & Ors., AIR 1978 SC 851 held that the soul of the rule (natural justice) is fair play in action.
2833. In our opinion, fair play required that the respondent should have communicated the 'good' entry of 1993-94 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Non-communication of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice.
34. Originally there were said to be only two principles of natural justice :
(1) the rule against bias and (2) the right to be heard (audi alterant pattern). However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India, AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to
61) it was held that natural justice is part of Article 14 of the Constitution.
35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.
36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the 29 entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh, 2006 (I) SCC 368. But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants).
39. In Canara Bank vs. V. K. Awasthy, 2005 (6) SCC 321, this Court held that the concept of natural justice has undergone a great deal of change in recent years. As observed in para 8 of the said judgment:
"Natural justice is another name for common- sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values".
In para 12 of the said judgment it was observed:
"What is meant by the term "principles of natural justice" is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local Govt. Board (1914) 1 KB 160:83 LJKB 86 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Spademan (1943) AC 627: (1943) 2 All ER 337, Lord Wright observed that it was not desirable to attempt "to force it into any Procrustean bed".30
40. In State of Maharashtra vs. Public Concern for Governance Trust & Ors. 2007(3) SCC 587, it was observed (vide para 39):
"39....In our opinion, when an authority takes a decision which may have civil consequences and affects the rights of a person, the principles of natural justice would at once come into play".
41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench.
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the 'good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.
44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental 31 Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment."
The three principles laid down in Dev Dutt Vs. Union of India and Others were:-
(i) In substance 'good' entry operates as adverse entry.
(ii) The entry 'good' having adverse impact on promotional opportunity is required to be communicated.
(iii) The communication of positive grading (good) to give an opportunity to the concerned employee to make representation against it is required to be communicated even after retirement (para
43).
However, when the law declared in Dev Dutt Vs. Union of India and Others (ibid) was only that the authority should communicate adverse grading in the ACR of an employee to enable him to make a representation against the same and should reconsider him for promotion in the event of upgradation in the grading of ACR. In Abhijit Ghosh Dastidar Vs. Union of India and Others (2009)16 SCC
146) it could be viewed that non communication of entry in the 32 ACR of Government servant has civil consequences and the entry 'good; if at all made in the ACR of an employee, if not communicated should not be taken into account while considering him for promotion to the higher grade. The brief judgment read thus:-
"1. Leave granted.
2. The appellant was the Post Master General during the relevant period and was eligible to be promoted to the Higher Administrative Grade Group A of the Indian Postal Service and to be posted as the Chief Post Master General. His claim for promotion was considered by DPC on 15-12-1999 and again on 28- 2-2001. The appellant was not found eligible for promotion to the Higher Administrative Grade A. He filed an original application before the Central Administrative Tribunal (hereinafter referred to as "CAT") at Patna alleging that he was not considered for promotion for the reason that there were two entries in his CR i.e. one on 22-9-1997 and another on 8-2-1998.
3. It was pointed out that CAT, Patna Bench by order dated 27-5-2002 directed the authority not to take note of "the order of caution dated 22-9-1997"
and "the order of adverse remarks dated 9-6-1998"
for the period 1-4-1997 to 13-10-1997 while considering the appellant for promotion. In the light of the said order, the appellant contended that these two adverse entries should not have been considered by DPC.
4. The appellant further contended that throughout the period he was given the entry of "good". The respondent Department alleged that the appellant was not considered for promotion as he was not having the benchmark of "very good".
5. According to the appellant, the adverse entries, namely, "good" were not communicated. The said aspect ought not to have been considered while considering his promotion. In support of the above claim, he relied on the decision of this Court in Dev Dutt v. Union of India ((2008) 8 SCC 725: (2008) 2 SCC (L&S) 771: (2008) 7 Scale 403).
6. Pursuant to the direction of CAT, Patna Bench on 9-9-2002 review of DPC was held and the appellant 33 was not found suitable for promotion. In March 2003, there was a regular DPC and the appellant was found fit for promotion with the same entries and accordingly promoted to the Higher Administrative Grade Group A and later retired from service.
7. It is not in dispute that CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22-9-1997 and the order of adverse remarks dated 9-6-1998. In view of the said order, one obstacle relating to his promotion goes.
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 annual confidential report 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 of 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 above referred decision (Dev Dutt case ((2008) 8 SCC 725: (2008) 2 SCC (L&S) 771: (2008) 7 Scale
403), 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.
9. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28-8-2000. Therefore, the appellant also be deemed to have been given promotion from 28-8-2000.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group 34 A, but his retrospective promotion from 28-8-2000 shall be considered for the benefit of refixation of his pension and other retiral benefits as per rules.
11. The appeal is allowed to the above extent. No costs."
When identical controversy came up for adjudication before Hon'ble Delhi High Court in Writ Petition (Civil) No.6310/2010 (Krishna Mohan Dixit and connected matters Vs. Union of India and Ors) decided on 08.10.2010, having taken note of the judgment in the case of Abhijit Ghosh Dastidar Vs. Union of India and Others, their Lordships ruled that the judgment will apply in the facts of the case i.e. a case where the incumbent had superannuated. Hon'ble High Court could take a categorical view that observation made in Abhijit Ghosh Dastidar (supra) could not be considered as binding precedent and have to be taken an observation made in peculiar facts of the case. Para 9 and 10 of the judgment read thus:-
"9. Subsequently, the Hon'ble Supreme Court also dealt with the issue in Abhijit Ghosh Dastidar's case. However, in that case except relying upon the observations made in Dev Dutt's case (supra), no W.P.(C)6013/2010 & conn. Matters Page 9 of 18 new law has been laid down. The judgment has also not distinguished Dev Dutt's case (supra), yet some observations in that judgment are reproduced hereunder:-
"5. According to the appellant, the adverse entries namely "good" were not communicated. The said aspect ought not to have been considered while considering his promotion. In support of the above claim, he relied on the decision of this Court in Dev Dutt v. Union of India and Ors. :(2008) 8 SCC 725 .
6. Pursuant to the direction of the CAT, Patna Bench on 09.09.2002 review of D.P.C. was held and the appellant was not found suitable 35 for promotion. In March, 2003, there was a regular D.P.C. and the appellant was found fit for promotion with the same entries and accordingly promoted to Higher Administrative Grade Group-A and later retired from service.
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 get 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 above referred decision 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.
9. Learned Counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re- fixation of his pension and other retrial benefits as per rules."
10. In view of the aforesaid decision it can simply be observed that the Hon'ble Supreme Court while reiterating the view taken by it in Dev Dutt's case 36 (supra), in the peculiar facts of the case where the incumbent stood superannuated took a view that in that particular case there was no necessity to call for a representation from the incumbent with respect to adverse ACRs and just to treat him as promoted as his juniors have also been promoted and he was promoted even regularly by a subsequent DPC of course without any pay or allowances for the period for which he had not worked in the higher administrative grade. Considering the law laid down by the Hon'ble Supreme Court itself, suffice would it be to state that such observations cannot be considered as a binding precedent and would have to be taken as observations made in the peculiar facts of the case."
However, in Union of India and Another etc.etc. Vs. V.S.Arora and Others (Writ Petition (C) No. 5042/2002) decided on 31.05.2012, having taken note of the decision K.M.Dixit Vs. Union of India and Ors (ibid), Hon'ble Division Bench of High Court ruled thus:-
"24. Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-
communication of an ACR is violative of the constitutional rights of a government servant/ employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated 37 the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
"6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence -
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules.
The 'preceding five years' for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx"
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub- paragraph (c) makes it clear that when one or more confidential reports have not been 38 written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub- paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above."
It would not be out of place to quote para 3 of the judgment wherein the Hon'ble High Court noticed its previous judgment in Union of India Vs. Krishna Mohan Dixit (WP(C) 6013/2010). The para read thus:-
"3. The second point that was urged on behalf of the petitioners was that the decision of the Supreme Court in the case of Abhijit Ghosh Dastidar v. Union of India (UOI) and Ors.: (2009) 16 SCC 146 has already been interpreted by a Division Bench of this Court in the case of UOI v. Krishna Mohan Dixit: WP(C) 6013/2010 and other connected matters decided on 08.08.2010. According to the petitioners, in the latter decision, a clear view has been taken that below benchmark ACRs, which have not been communicated, are not to be simply ignored. But, the employee concerned is to be given an opportunity of making a representation against the same after communication of the said below benchmark ACRs to him and it is thereafter that the DPC is to consider the case of such an employee. The learned counsel for the petitioners also submitted that another Division Bench of this Court in a batch of matters which included WP(C) 8841/2004 and 39 other connected matters, applied the decision in Krishna Mohan Dixit (supra). Thus, according to them, till the Larger Bench decision comes, the law, as interpreted by Krishna Mohan Dixit (supra), would apply."
Finally, the reference made to Larger Bench of Hon'ble Supreme Court in Sukhdev Singh Vs. Union of India and Others (Civil Appeal No. 5892/2006) in terms of the order dated December 12, 2006 was taken up by their Lordships for answer and when the view taken in Dev Dutt Vs. Union of India and others (supra) was agreed and approved, the decision in Satya Narain Shukla Vs. Union of India and Others and K.M.Mishra Vs. Central Bank of India and Others were declared to be not laying down a good law.
Nevertheless, the view taken in Abhijit Ghosh Dastidar Vs. Union of India and Others was reproduced and not commented upon. Para 3 to 9 of the judgment read thus:-
"3. Subsequent to the above two decisions, in the case of Dev Dutt vs. Union of India and others3 , this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two Judge Bench on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam1 and principles of natural justice exposited by this Court from time to time particularly in A.K. Praipak vs. Union of India4; Maneka Gandhi vs. Union of India5; Union of India vs. Tulsi Ram Patel6; Canara Bank vs. V.K. Awasthy7 and State of Maharashtra vs. Public Concern for Governance Trust8 concluded that every entry in the ACR of a public service must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. This is what this Court in paragraphs 17 & 18 of the report in Dev Dutt at page 733:40
"In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
Thus it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."
4. Then in paragraph 22 at page 734 of the report, this Court made the following weighty observations:
"It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted."
5. In paragraphs 37 & 41 of the report, this Court then observed as follows:
"We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair 41 manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."
6. We are in complete agreement with the view in Dev Dutt3 particularly paragraphs 17, 18, 22, 37 & 41 as quoted above. We approve the same.
7. A three Judge Bench of this Court in Abhijit Ghosh Dastidar vs. Union of India and others9 followed Dev Dutt3. In paragraph 8 of the Report, this Court with reference to the case under consideration held as under:
"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 get 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 above referred decision 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 42 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 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.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others10 and K.M. Mishra vs. Central Bank of India and others11 and the other decisions of this Court taking a contrary view are declared to be not laying down a good law."
In the meantime, following the law declared in Dev Dutt Vs. Union of India and Others, the Govt. of India ( Dept. of Per.
& Trg) issued O.M. No.21011/1/2005-Estt.(A)(Pt.II) dated 14.05.2009 providing that the existing nomenclature of annual confidential roll should be modified as Annual Performance Assessment Report (APAR) and the full APAR including the overall grading in the assessment of integrity should be communicated to the concerned officer after the report is complete with the remarks of the reviewing officer and the accepting authority, wherever such system is in vogue.
Nevertheless, the system was made applicable to the entry in 43 the ACR prospectively i.e. from the reporting period 2008-09 (where ACR was initiated after 1.04.2009). The OM read thus:-
"1. The existing provisions in regard to preparation and maintenance of Annual Confidential Reports inter alia provide that only adverse remarks should be communicated to the officer reported upon for representation, if any. The Supreme Court has held in their judgment, dated 12.05.2008 in the case of Dev Dutt v. Union of India (Civil Appeal No.7631 of 2002) that the object of writing the confidential report and making entries is to give an opportunity to the public servant to improve the performance.
The 2nd Administrative Reforms Commission in their 10th Report has also recommended that the performance appraisal system for all services be made more consultative and transparent on the lines of the PAR of the All India Services.
2. Keeping in view the above position, the matter regarding communication of entries in the ACRs in the case of civil services under the Government of India has been further reviewed and the undersigned is directed to convey the following decisions of the Government-
(i) The existing nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR).
(ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing Officer and the Accepting Authority wherever such system is in vogue. Where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment,
(iii) The Section entrusted with the maintenance of APARs after its receipt shall disclose the same to the officer reported upon.
44(iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observation contained in the report leading to assessment of the officer in terms of attributes work output, etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of disclosure, the APAR will be treated as final.
(v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the Reporting Period 2008-09 which is to be initiated after Ist April, 2009.
(vi) The Competent Authority for considering adverse remarks under the existing instructions may consider the representation, if necessary, in consultation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation.
(vii) The Competent Authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the Competent Authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section.
453. All Ministries/Departments are requested to bring to the notice of all the offices under them for strict implementation of the above instructions."
The general instructions issued by the G.I. Dept. of Per.& Trg., OM No.21011/1/2005-Estt. (A) dated 06.01.2010 provided for effect on modification/expunction of adverse remarks in the ACRs and upgradation/downgradation of overall grading in the ACRs prior to the period 2008-2009. The OM read thus:-
"Effect on modification/expunction of adverse remarks in the ACRs and upgradation/downgradation of the overall grading in the ACRs prior to the period 2008-2009.- Instructions were issued vide O.M. of even number, dated the 14.05.2009 by which the complete APAR (previously known as ACR) including the overall grading and assessment of integrity shall be communicated to the concerned officer for representation if any, with effect from the reporting period 2008-09 which was to be initiated from 1.04.2008. Prior to that, only adverse remarks in the ACR were required to be communicated for representation, if any. The then existing instructions further provided that the overall grading in the ACR should remain unchanged even after modification or expunction of the entire adverse remarks. It was left to the DPC to re-determine the overall grading if it considered that the expunction of such adverse remarks had so altered the quality of the ACR. The matter has been further considered and it has been decided that in those cases where the reckonable ACRs prior to the reporting period 2008-09 are to be considered in a future DPC on which the adverse remarks of Reporting / Reviewing/Accepting Authorities have been expunged or modified by the Competent Authority, the "overall grading" in the ACR be kept blank for appropriate re-grading by the DPCs. The existing grading shall be blocked in such cases. It has also been decided that where the authority has upgraded/downgraded the overall grading without giving sufficient reasons, the DPC shall treat such an exercise as non est/invalid. General terms, such as "I agree or disagree with the Reporting Officer/ Reviewing Officer " used by the 46 Reviewing/Accepting Authority shall not be construed as sufficient reason for upgrading /downgrading the overall grading given by the Reporting Authority/Reviewing Authority. The proposals for the DPC where ACRs up to the reporting period 2007-08 will be taken into account should specifically bring out these guidelines.
2. It is also made clear that past cases already decided will not be re-opened."
It was the G.I.Dept. of Per. & Trg. O.M.No.21011/1/2010-Estt.A dated 13.04.2010 which provided for giving the copies of annual confidential report for the report period prior to 2008-2009 to the concerned employees who was to be considered for promotion in future i.e. after 13.04.2010. The OM read thus:-
"Below bench-mark gradings in ACRs prior to the reporting period 2008-2009 and objective consideration of representation by the Competent Authority against remarks in the APAR or for upgradation of the final grading.- Prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any, to be considered by the Competent Authority. The question of treating the grading in the ACR which is below the bench-mark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are the below the bench-mark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below bench-mark ACR below bench-mark ACRs of other year.
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the Competent Authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the 47 Competent Authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the Competent Authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing Officer if they are still in service on the points raised in the representation vis-à-vis the remarks/gradings given by the in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the Competent Authority does not give specific reasons for upgrading the below bench-mark ACR/APAR grading at par with the bench-mark for next promotion."
In the present case, the DPC had met on 30.11.2009 i.e. after issuance of G.I.Dept. of Per. & Trg., O.M.No.21011/1/2005- Estt(A)(Pt.II) dated 14.05.2009, but before the G.I.Dept. of Per.
& Trg. O.M.No.21011/1/2010-Estt.A dated 13.04.2010. When from the date of judgment in Dev Dutt Vs. Union of India and Ors, the grading below the benchmark was required to be communicated to applicant, it is difficult to say, whether after the judgment in Sukhdev Singh Vs. Union of India and Others (ibid), the ACR having the overall grading below bench mark if not communicated to an employee to enable him to make a representation before the meeting of the DPC should be ignored or not. Nevertheless, once their Lordships could take note of the judgment in Abhijit Ghosh Dastidar's case (supra) wherein it is specifically provided that the entry 'good' 48 given to appellant should not have been taken into consideration and the view is not adversely commented upon, the ramification is that it has fresh approval of their Lordships.
However, in the facts of the present case, the plea of the applicant could be accepted only if instead of waiting for communication of the gradings below benchmark to him, availing the opportunity of making representation against it and waiting for disposal of the same, he could have questioned his rejection on the ground that the grading below benchmark were not communicated to him. Instead of seeking his reconsideration in disregard of the gradings below benchmark, the applicant chose to follow the path of making representation against the below benchmark grading and to await the outcome of the same. In the wake, the challenge to DPC held on 30.11.2009 on this ground cannot be countenanced. In more or less similar situation, Hon'ble Supreme Court delivered a judgment in Saroj Kumar Vs. Union of India and Ors (Civil Appeal No. 6081/2005) decided on 18.08.2015 taking the view that once the down graded ACRs have been communicated to the employee and the representation made by him against the same was rejected, the law declared in Abijit Ghosh Dastidar could be of little help to the appellant. Relevant excerpt of the judgment read thus:
"The controversy in the present case relates to the downgrading ACRs of the appellant without giving him any opportunity, which were later communicated and representation made by the 49 appellant was also considered and rejected........subsequent to the first order of the Hon'ble Tribunal, the uncommunicated entries were made available to the petitioner and he made a representation against the entries; this representation was rejected, leading to the filing of another OA 490/2010 by the petitioner, wherein the Hon'ble Tribunal held that the order on representation was not a reasoned order and directed reconsideration of the representation in the light of law laid down by this Hon'ble Court in Dev Dutt vs. Union of India & Ors. (2008) 8 SCC 725; W.P. 8357/2011 filed thereafter was dismissed by the Hon'ble High Court by order dated 21.2.2011 holding that the complaints which led to the downgrading of the ACRs of the petitioner and the reasons for relying on the complaints have not been recorded in the order rejecting the representation; if the petitioner wanted his claim for promotion considered ignoring the uncommunicated ACRs, he should have challenged the order of the Hon'ble Tribunal dated 27.4.2010 in O.A. 490/2010 and that of the Hon'ble High Court dated 21.2.2011 in W.P. 8357/2011; the Hon'ble Tribunal, by order dated 16.1.2012 in O.A. 658/2011 has not recorded any reasons for disagreeing with the conclusions drawn by the competent authority in its detailed order supported by reasons. The Hon'ble High Court thus remanded the matter back to the Hon'ble Tribunal to examine the merits of the order rejecting the representation of the petitioner."
xxx xxx xxx "
9. It is strongly denied that the adverse entries remained uncommunicated because of active concealment by the respondents resulting in violation of fundamental rights of the petitioner and the principles of natural justice. It is submitted that as per DOPT OM dated 11.5.1990, communication was mandatory only in cases were adverse entry was made in the ACR... It is also clear from the record that the representation of the appellant was rejected vide order dated 22.1.2010. Consequent to subsequent direction of the Tribunal in second round of litigation, as affirmed by the High Court in Civil Miscellaneous Writ Petition No. 8357 of 2011, the matter has been reconsidered and rejected. In the above circumstances, after communication of the entries made to the 50 appellant and subsequent rejection of the representation, now, the law laid down in the cases of Dev Dutt v. Union of India (supra), Abhijit Ghosh Dastidar v.
Union of India and others (supra), and Sukhdev Singh v. Union of India[3], is of little help to the present appellant for the reason that in the present case not only the ACRs have been communicated to the appellant, his representation too has been rejected."
The applicant himself is conscious of such development and that is why he has also made a prayer for his reconsideration for promotion after upgradation of his ACR. One of the pleas raised by the learned counsel is that for same performance and profile, he could be graded differently in the ACR for different period. It is seen from the order dated 7.04.2011, 07.03.2011, 29.12.2010 and 20.10.2010 that the pleas raised by the applicant in his representation are not specifically dealt with. In view of the provisions contained in G.I., Dept. of Per. & Trg. OM No.21011/1/2010-Estt.A dated 13.04.2010, the representation need to be decided by speaking order. Further we find that the grading in the ACR of the applicant for the period 11.10.2002 to 31.03.2003 and 20.09.2005 to 31.03.2006 was upgraded to 'Very Good'. As has been ruled by Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India and Ors in the event of upgradation of grading in ACR in representation by the employee, he need to be reconsidered for promotion in 51 question by convening a review DPC. Such is also the provision contained in G.I.Dept. of Per. & Trg. O.M.No.22013/3/197-Estt (D) dated 13.04.1998. Relevant excerpt of the instruction read thus:-
"18.1. The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, e.g.-
(a) where eligible persons were omitted to be considered; or
(b) where ineligible persons were considered by mistake; or
(c) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or
(d) where some procedural irregularity was committed by a DPC; or
(e) where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer."
8. In the wake, the OA is disposed of with direction to respondents to re-consider the representation made by the applicant against the ACRs for the period 1.04.2003 to 1.09.2003, 1.04.2002 to 10.10.2002, 1.4.2005 to 19.09.2005 and 1.04.2005 to 19.05.2005 and decide the same afresh. After the fresh decision taken in the representation, the candidature of the applicant for promotion to the post of Additional Chief Engineer should be reconsidered by a review DPC. It is made clear that since the 52 two of the ACRs (ibid) of the applicant have already been upgraded, irrespective of the nature of fresh decision, the review DPC should meet. No costs.
(K.N.Shrivastava) ( A.K.Bhardwaj) Member (A) Member (J) 'sk' .... ..