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6. In due course, the 1st respondent, vide its order dated 2.3.2007, appointed the applicant to the post of Deputy Secretary on ad hoc basis and posted to Ministry of Urban Development. Thereafter, the Selection Committee held in November 2008 considered the regular Under Secretaries for preparation of the Select List for the post of Deputy Secretary for year 2003 but in the Annexure A-5 Select List of Deputy Secretaries issued by the Department of Personnel and Training on 26.12.2008, his name was not included. The Selection Committee met again during December, 2008 and January, 2009 to consider the select lists for promotions to the post of Deputy Secretary for the years 2004, 2005, 2006 and 2007. His name was again not included in the select lists of 2004 to 2007 issued by the DoP&T vide their Annexure A-7 and A-8 OMs dated 7.1.2009 and 30.01.2009. The Applicant has, therefore, made the Annexure A-24 application dated 10.01.2009 under the Right to Information Act to know the reasons for not promoting him and Ist respondent vide its Annexure A-25 letter dated 02.02.2009 informed him that his exclusion was due to below benchmark ACRs but the details/years of such ACRs were refused to be divulged to him citing them as secret documents under the Official Secrets Act. But on appeal, the CPIO vide its Annexure A-28 letter dated 31.03.2009 disclosed that it was the ACRs for the years 1998-99 and 1999-2000 he was given the below benchmark grading and the Reporting and the Reviewing Officers were Mr. James Thomas, Joint Director (5th Respondent) and Mr. V.C. Tewari, Director (6th Respondent) respectively. On 27.04.2000 the Applicant again moved an application under Right to Information Act requesting for photocopies of the ACRs for 1998-99 and 1999-2000. The Ist Respondent- DOP&T vide note dated 01.05.2009 again rejected his request. However, on persistent and protracted representation, the DOP&T at last supplied him the copies of the aforesaid ACRs vide the Annexure A-33 letter dated 27.07.2010 and those ACRs are impugned in this OA and their copies have been annexed as Annexures A-3 and A-4 respectively.

 Year Grading Remarks 1998-99 Good 1999-2000 Average 2000-2001 Outstanding 2001-2002 Outstanding Being no report, the previous years ACR grading was taken 2002-2003 Being no report, the previous years ACR grading was taken .

8. On receipt of the impugned ACRs vide the Ist respondents letter dated 27.07.2010, the Applicant preferred Annexure A-37 representation dated 12.08.2010 to the Ist respondent pointing out the glaring infirmities, tampering, personal bias, prejudices and collusion between the 5th and 6th respondents as reflected on the face of those ACRs. The Applicant prayed to the competent authority to objectively examine his representation and upgrade his ACRs to meet the bench-mark and to include his name in the Select List of year 2003. He has also raised the objections with respect to the objectionable remarks in respect of almost all aspects of the impugned ACRs which the competent authority was bound to consider with reference to his performance and the respondent conduct of the 5th and 6th respondents towards him during the relevant period as well as his past and subsequent performance reports. The said Representation was followed by the Annexure A-38 representation dated 8.4.2011 stating that the below benchmark reports were conveyed to him only vide the DoP&Ts letter dated 27.7.2010 and, therefore, his representations should be disposed of in terms of the OM dated 13.4.2010. He has also pointed out that both the Reporting and Reviewing Officers for both his ACRs for the years 1998-99 and 1999-2000 have already retired on or before May, 2009 and, therefore, they could not have been consulted in terms of DoP&Ts OM dated 13.4.2010. He has therefore, requested the respondents to consider his earlier representation dated 12.8.2010 before his retirement which was due on 31.7.2011. As the respondents were not considering his said representation, he had earlier approached the Tribunal vide OA No. 1908/2011. During the pendency of the said OA, the Respondents issued the Annexure A-2 OM dated 26.07.2011 stating that it did not consider the below benchmark grading as an adverse grading and hence the mandated time period specified in the OM dated 30.10.1978 would not apply and further as those ACRs belonged prior to the reporting year 2008-09, it is not bound by the time limit specified in OM dated 14.05.2009 also. However, according to the Applicant, the 2nd respondent vide its impugned Annexure A-1 order dated 16.03.2011 which is a non-speaking, unreasoned and passed without application of mind and without even looking into his representation, decided to retain the impugned below benchmark gradings for the year 1998-99 and 1999-2000. The 2nd respondent also did not even had a glance of the impugned ACRs as is apparent from the fact that no person of ordinary diligence would have missed to notice the unbecoming conduct of Reporting Officer signing as Reviewing Officer and his contradictory and biased remarks in the ACR. The 2nd respondent also did not deal with even a single issue raised in the detailed representation and failed to see the gross non-application of mind by the 6th respondent in approving the impugned ACRs, mechanically. The 2nd respondent completely ignored his next years Outstanding ACR graded by the 6th respondent himself and failed to apply its mind to the fact that when the same officer was grading him Outstanding and when in the next two years he was graded Very Good, the below bench mark remarks of the preceding year raised a bona fide doubt on the conduct of the reporting/reviewing officers.

20. On merits, they have submitted that prior to the issuance of instructions dated 13.04.2010, there was no provision for communicating the below benchmark gradings in ACRs to the Govt. Servants. The case of the Applicant for promotion to the post of Deputy Secretary had been considered on the basis of available ACRs, which were reckonable for the relevant years and he was not found suitable for promotion to the post of Deputy Secretary on the basis of those available ACRs. As regards the representation of the Applicant dated 12.08.2010 was concerned, they have submitted that as per extant orders, the views of the Reporting Officer (Shri James Thomas, Jt. Director) and Reviewing Officer [Shri V.C. Tewari, Director (SIU)] were required to be called for on the points raised by the Appellant in his representation. However, both of them had already retired form service. The case was, therefore, examined based on the remarks and grading in the ACRs for the year 1998-99 and 1999-2000. It was further observed that the Reporting Officer had given detailed reasons in each of the columns of the ACRs and the Reviewing Officer had also concurred with the views of the Reporting Officer and agreed with the grading of the Reporting Officer. The remarks in the ACRs for the period 1998-99 and 1999-2000 could not accordingly be modified and/or the grading of the ACRs upgraded as there was no objective basis on which the same could be modified. Orders to this effect were issued on 16.03.2011. Further, they have submitted that after the judgment of the Honble Supreme Court in Dev Dutts case (supra), instructions were issued by the DOP&T OM, 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 01.04.2009.

24. Further, according to them, as per DPC guidelines, ACRs for the preceding 5 years of the Select List year for which promotion is considered are taken into consideration for assessing the suitability of the officer for promotion. For the Select List year 2003, the ACRs for the years 1997-98, 1998-99, 1999-2000, 2000-01 and 2001-02 were reckonable. If ACR for a year within the reckonable years is not available, then the DPC considers the ACR of a back year. It is not correct that when an ACR is not available, the grading of the previous year is taken to be the grading of the year for which there is no ACR. They have, therefore, submitted that the relief sought should not be allowed in view of the fact that prior to issuance of instructions dated 13.04.2010, there was no provision for communicating the below benchmark gradings in ACRs to the Government Servants. The case of the Applicant for promotion to the post of Deputy Secretary had been considered on the basis of available ACRs, which were reckonable for the relevant years and he was not found suitable for promotion to the post of Deputy Secretary on the basis of those available ACRs and that the competent authority has not upgraded the below benchmark grading in the ACRs of 1998-99 and 1999-2000 and, therefore, there is no case for a review DPC.