* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 3787/2011
Union of India ....Petitioner
Through Mr. H.K. Gangwani, Advocate.
VERSUS
Dr. Vishnu Kant Srivastava .....Respondent
Through Mr. R.V. Sinha and Mr. R.N. Singh,
Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
% 30.05.2011 SANJIV KHANNA, J. CM No. 7915/2011 (for exemption)
Allowed, subject to all just exceptions.
Writ Petition (Civil) No. 3787/2011 With the consent of the parties, since a limited issue is involved, the writ petition is taken up for final hearing at the stage of admission itself.
WPC 3787/2011 Page 1 of 5
2. The respondent herein had filed OA No. 917/2010, which has been disposed of by the impugned order dated 6th August, 2010, inter alia, directing as under:-
"4. We allow this application with direction to the respondents to convene Review DPC wherein ACR of the applicant for the year 2002-03 shall not be taken into consideration. Instead, the DPC would take into consideration the earlier ACR of the applicant for the year 2001-02 along with other relevant ACRs which were already under consideration, to re-assess the applicant for promotion to SAG. If otherwise found fit, the applicant shall be entitled to promotion to SAG and all consequential reliefs from the date his junior was promoted. Let this exercise be done as expeditiously as possible and preferably within a period of six weeks from today."
3. The contention of the respondent which has been accepted by the Tribunal is that he was not communicated and informed about his ranking/grading in the ACRs which was below the prescribed bench- mark required for promotion and, therefore, he has been denied promotion in the Departmental Promotion Committee (DPC) meeting held on 26th September, 2008.
WPC 3787/2011 Page 2 of 5
4. The said aspect has been examined by the Supreme Court in Dev Dutt vs. Union of India & Ors., 2008(8) SCC 725 and Abhijit Ghosh Dastidar vs. Union of India and Ors., Civil Appeal No. 6227/2008 decided on 22nd October, 2008.
5. A Division Bench of Delhi High Court in Writ Petition (Civil) No. 6013/2010, titled Union of India vs. Krishna Mohan Dixit, examined the two decisions of the Supreme Court mentioned above and the effect thereof. In the said case, decision of the Tribunal in the case of Krishna Mohan Dixit decided on 21st August, 2009 was reversed and the following directions were issued:-
21. Even otherwise the question of following Office Memorandum dated 11.05.1990 is out of question for the following reasons:-
(i) At the time when the Office Memorandum was enforced the judgment is Dev Dutt's case was not available;
(ii) The bench marks at that time were not "Very Good";
(iii) Ignoring ACR for three years prior to the date of DPC has no relevance to the present day atmosphere where the bench mark is fixed and consideration has to be for ACR of five years;
(iv) In view of the judgment delivered by the Hon‟ble Supreme Court in the case UP Jal Nigam followed in Dev Dutt's case and Abjijit WPC 3787/2011 Page 3 of 5 Ghosh Dastidar's case, all ACRs are to be communicated to the incumbent. Wherever the ACRs are below bench mark, a representation can be made by the affected person which will then be considered by the competent authority and in any case, not by the same authority which gave the adverse ACR but by an authority above it ; and,
(v) At least in the case of a person who is already in service, the question of ignoring the adverse ACRs instead of giving a chance of making representation does not arise.
22. In view of the aforesaid, we are of the considered view that the orders passed by the Tribunal in all these cases cannot be sustained. Thus the orders passed by the Tribunal would stand modified to the extent that the adverse ACRs which falls within the consideration zone i.e. in the relevant 5 years before the date of holding the DPC, if not communicated earlier but are below bench mark would be communicated within a period of 4 weeks from today to the incumbent officer if not communicated so far. The respondent would then be eligible to make a representation within 15 days thereof if not made already, and that such representation would be decided by the competent authority, which, of course, would be higher in rank to the authority who gave the adverse ACR within next 2 weeks irrespective of the fact whether the Reporting Officer or the Reviewing Officer or both are available or not. In case, the ACR is upgraded, making the incumbent eligible for consideration, review DPC would be held based upon the reappraised ACRs for the relevant period within six weeks.In case, the review DPC finds the incumbent fit for promotion, the benefit thereof would be given to him from the date when he was entitled for promotion to the next post had the ACR in question would not have been considered averse to him with all consequential benefits."WPC 3787/2011 Page 4 of 5
6. In the present case also the Tribunal has followed the decision dated 21st August, 2009 in Krishna Mohan Dixit (supra) and accordingly the directions given in paragraph 4 of the impugned order dated 6th August, 2010, have to be reversed. We accordingly set aside the directions given in paragraph 4 of the impugned order dated 6th August, 2010. Instead the directions given in order dated 8th October, 2010 in Writ Petition (Civil) No. 6013/2010 titled Union of India vs. Krishna Mohan Dixit will apply. The parties will also comply with and adhere to the time period specified in paragraph 22 of the said decision. The time period will begin from the date of this order is received in the office of the petitioner.
7. The writ petition is accordingly disposed of.
SANJIV KHANNA, J.
CHIEF JUSTICE May 30, 2011 kkb WPC 3787/2011 Page 5 of 5