Indian Kanoon - Search engine for Indian Law

The Applicant, an officer of the 1984 batch of Indian Economic Service (IES), has been overlooked for promotion to Senior Administrative Grade (SAG), although officers junior to him have been promoted by order dated 05.06.2009 (Annex A-1), on the recommendation of the Departmental Promotion Committee (Annex A-3), which met on 02.03.2009. The DPC did not find the Applicant Fit for promotion because he did not meet the prescribed benchmark of Very Good grading in all the five Annual Confidential Reports (ACRs), from the year 2002-03 to 2007-08 (excluding 2004-05, when ACR could not be recorded). His grading in the ACR for part of the year 2003-04 and part of the year 2005-06 was Good. The Applicants representation against his not being promoted was sent to the competent authority by electronic-mail on 05.06.2009 and hard copy on 01.12.2009, which remained unheeded. The Respondents communicated to the Applicant the ACRs with below benchmark grading by a letter dated 04.05.2010. The Applicant made two separate representations against the below benchmark grading in the two ACRs on 16.05.2010 and 17.05.2010. These representations were rejected by the order dated 18.08.2010 by the Ministry of Defence, the third Respondent herein (Annex A-2). The Applicant is assailing the orders dated 05.06.2009 (Annex A-1) and 18.08.2010 (Annex A-2) and the minutes of the DPC dated 02.03.2009 as illegal, arbitrary and discriminatory and seeking these to be quashed to the extent these affect him and direction to the Respondents to promote him to SAG from the date the officers junior to him have been promoted.

3. It is in the above backdrop that the arguments have been addressed. It was pointed out by the learned senior counsel for the Applicant that the ACR for part of the year 2003-04, which contained below benchmark grading Good had been reviewed after an inordinate delay of more than two years by the reviewing authority. The Applicant had submitted his self-assessment to the reporting officer on 10.06.2004. The reporting officer did not record the date on which the ACR was recorded, although there is a specific column at the end to indicate the date and place of recording the ACRs. This was omitted deliberately, it was argued, because the ACR had been recorded after an inordinate delay. The reviewing officer had recorded his comments and grading on 20.02.2007, after a delay of two-and-a-half years. This was a very casual and irresponsible approach to the recoding of ACRs, as one could hardly expect the reporting and reviewing officers to remember the performance of the officer reported upon after a lapse of more than two years. The DOP&T had issued instructions from time to time about timely recording of the ACRs. The Office Memorandum number 21011/1/77-Estt.(A) dated 30.01.1978, issued by the Department of Personnel and Administrative Reforms has mandated time limit of one month for recording the ACRs. It reads thus:

5. The needful shall be done by the respondents within 12 weeks from today.

6. With these observations, the writ petition is disposed of. The SLP against the same was dismissed by the Honourable Supreme Court. On the same analogy these ACRs had to be ignored, contended the learned senior counsel. It was further submitted that the ACRs, in which adverse remarks were given in the form of below benchmark grading, were considered by the DPC on 02.03.2009, when these had not even been communicated to the Applicant. It is again a well established principle that the DPC has to ignore the un-communicated adverse remarks. The Honourable Supreme Court had laid down the law in Dev Dutt Vs. Union of India, (2008) 8 SCC 725 that below benchmark grading would be considered to be an adverse remark. The DPC ought not, therefore, have considered the adverse ACRs of 2003-04 and 2005-06 because these had not been communicated to the Applicant. In Abhijit Ghosh Dastidar V. Union of India and Others, (2009) 16 SCC 146, the Honourable Supreme Court held that un-communicated adverse remarks should be ignored by the DPC. Paragraph 8 of the judgment has been extracted below:

4. The Respondents would, however, oppose the cause of the Applicant by stating that the OA was devoid of any substance or merit. It has been pleaded in the counter affidavit that before the year 2009, it was not necessary for the competent authority to communicate below benchmark remarks to the officer reported upon as these were not considered adverse remarks. In view of this it was perfectly in order for the DPC to consider the ACRs containing below benchmark grading. DOP&T issued instructions for communicating below benchmark grading only on 14.05.2009. It is further pleaded that Abhijit Ghosh Dastidar (supra) would not apply in the facts of this case. No other argument has been pressed on behalf of the Respondents.