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Showing contexts for: below benchmark ACR in Union Of India And Anr vs R N Kurmi & Ors on 31 May, 2012Matching Fragments
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 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.
4. On the other hand, the respondents have submitted that starting from the decision of the Supreme Court in Dev Dutt (supra), the principle has been that a below benchmark ACR, which is not communicated to the employee, cannot be considered by the DPC while examining his case for promotion. They submitted that in Dev Dutt (supra), the solution provided was that the below benchmark ACRs ought to be communicated to the concerned employee at the stage of consideration by the DPC so that the employee has an opportunity to represent against the same. After the representation is disposed of, the DPC should re-convene and consider the case of the employee. The learned counsel for the respondents submitted that though this was the law, as laid down by the Supreme Court in Dev Dutt (supra), the subsequent decision in Abhijit Ghosh Dastidar (supra), which is a decision rendered by a Bench of three Hon'ble Judges of the Supreme Court, took the matter further. The Supreme Court in Abhijit Ghosh Dastidar (supra), affirmed the view taken by Dev Dutt (supra) to the extent that a below benchmark ACR, if not communicated, cannot be considered by the DPC. However, the Supreme Court in Abhijit Ghosh Dastidar (supra), further directed that such ACRs should not be considered. Therefore, according to the respondents, the question of communicating the below benchmark ACRs at the stage of the consideration by the DPC, does not at all arise and all that needs to be done is that the below benchmark ACRs ought to be ignored from the purview of consideration.
10. This is exactly what has been done in Dev Dutt (supra). There, the Supreme Court examined the constitutionality of the procedure of not communicating the below benchmark ACRs. The Supreme Court found that such a step meant that it would violate the principles of natural justice and would also be arbitrary and, therefore, would be contrary to Article 14 of the Constitution of India. Therefore, the Supreme Court came to the conclusion that below benchmark ACRs have to be communicated to the concerned officer/employee. The exact words used by the Supreme Court in this connection are as under:-
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 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:-