*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st December, 2012
+ LPA No.39/2012
CHARANJIT LAL KHATRI ..... Appellant
Through: Mr. V.K. Rao, Sr. Adv.
Versus
SECRETARY GENERAL, RAJYA SABHA
SECRETARIAT & ORS. ..... Respondents
Through: Mr. J.P. Sengh, Sr. Adv. with Ms. Sana Ansari, Mr. Sumit Batra & Ms. Ankita Gupta, Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. This intra-court appeal impugns the judgment dated 8th November, 2011 of the learned Single Judge of dismissal of W.P.(C) No.1857/2011 preferred by the appellant, save for a direction to the respondent Rajya Sabha Secretariat to take a fresh decision on the appellant‟s overall grading in the Annual Confidential Report (ACR) for the period 1 st August to 31st December, 2007 and his overall grading for the entire year 2007, in the light of the observations in the judgment of the learned Single Judge. LPA No.39/2012 Page 1 of 12
2. Notice of the appeal was issued and the counsels have been heard. The appellant joined the services of the respondent on 9th July, 1987 on the post of Translator and was on 1 st April, 1997 promoted to the post of Assistant Editor which post was subsequently re-designated as Editor and yet subsequently as Assistant Director. It is the case of the appellant that he on 1st October, 2010 became eligible for consideration for promotion to the post of Deputy Director but was not so promoted and which led to the filing of the writ petition from which this appeal arises, impugning the promotion of one Ms. Punam Sahni to the said post and the order dated 28th April, 2010 communicating the below benchmark in the ACRs of the appellant and also seeking promotion to the post of Deputy Director. During the pendency of the writ petition also, respondents promoted others to the post of Deputy Director and which promotions vide interim order in the writ petition were made subject to the outcome of the writ petition. The appellant has since, on attaining the age of superannuation on 30th April, 2011, retired from the post of Assistant Director.
LPA No.39/2012 Page 2 of 12
3. The counsel for the appellant has thus contended that the only benefit of the present litigation which the appellant can now derive is of increased pension.
4. The senior counsel for the appellant has confined his arguments to one aspect only. Our attention has been drawn to Annexure A-18 to the appeal at page 430 of paper book where an analysis of the appellant‟s ACR from the year 2005 to 2010 is given and to the relevant Rule for promotion at page 455 of the paper book. The benchmark for promotion admittedly is "Very Good" for the preceding five years; the preceding five years for the appellant to be considered for promotion in the year 2010 would be the years 2005 to 2009. The overall rating of the appellant during the said years was as under:-
Sr. No. Year Rating
st th
1. 1 January, 2005 to 30 June, Fair
2005
2. 1st July, 2005 to 31st December, Good
2005
3. 1st January, 2006 to 31st Good
December, 2006
4. 1st January, 2007 to 31st July, Very Good
2007
5. 1st August, 2007 to 31st The rating was
December, 2007 expunged vide order
dated 2nd March, 2009
6. 1st January, 2008 to 31st July, Good
2008
LPA No.39/2012 Page 3 of 12
7. 1st August, 2008 to 31st Good
December, 2008
8. 1st January, 2009 to 31st Very Good
December, 2009
9. 1st January, 2010 to 31st August, Very Good
2010
5. The contention of the senior counsel for the appellant is that the overall rating is not truly representative of the rating/grading under different heads/parameters in the respective year / period. With reference to the period from 1st January, 2006 to 31st December, 2006, it is demonstrated that the appellant was rated „cent percent‟ for Coverage; „fully accurate‟ for Accuracy; „lucid and precise‟ for Style; „very good‟ for Command on Language; „highly intelligent‟ and „very good general knowledge‟ for Degree of Intelligence and General Knowledge; „highly disciplined‟ for Amenability to Discipline; „highly punctual‟ for Punctuality in Attendance; „totally committed‟ for the attribute of Commitment to the Task Assigned; „completely devoted‟ for the attribute of Devotion to Duty; „warm relations with all‟ for the attribute of Human Relations; „good‟ for the attribute of Public Relations; „in high order‟ for the attribute of Intellectual Honesty, Creativity and Innovative Qualities; and, „beyond doubt‟ for the attribute of LPA No.39/2012 Page 4 of 12 Integrity. It is argued that notwithstanding the same, the overall rating of "Good" only and not "Very Good" has been given.
6. The senior counsel for the appellant has again taken us to the Rules which do not make the overall rating as recorded in the ACR binding on the Departmental Promotion Committee (DPC) and grant liberty to the DPC to make its own assessment of the performance in any year on the basis of various entries recorded in the ACR. The further contention of the senior counsel for the appellant is that similarly for the remaining period of the preceding five years under consideration, the appellant should have been given overall rating/grading of "Very Good" instead of as given. It is contended that the DPC however did not consider the said aspect. Attention in this regard is invited to the minutes of the meeting of the DPC held on 4 th November, 2010 at page 373 of the paper book which relating to the appellant are as under:-
"23. Accordingly, Shri Charanjit Lal Khatri was provided a copy of the below benchmark ACRs for the relevant years and he represented against the below benchmark gradings given to him by his Reporting/Reviewing Officers vide representation dated 7th May, 2010. The Secretary-General, however, taking into account the comments of the Reporting/Reviewing Officers sought from them on the representations of Shri Charanjit Lal Khatri vide his order dated 12th October, 2010, did not find any scope for LPA No.39/2012 Page 5 of 12 upgradation of the below benchmark gradings in the ACRs of relevant period in respect of Shri Charanjit Lal Khatri.
24. The Committee was also informed that there is no vigilance/disciplinary case either pending or being contemplated against the above mentioned individual.
25. The Committee considered the ACRs and service records of Shri Charanjit Lal Khatri and after perusal observed that he does not fulfill the requisite benchmark of "Very Good" for promotion and according did not recommended him "fit" for in situpromotion to the grade of Deputy Director (E&T)."
7. It is the contention of the senior counsel for the appellant that the DPC in relation to the appellant only considered the overall rating and not the rating/grading against individual entries. The relief in this appeal is confined only to a direction to the DPC to review the minutes of the meeting dated 4 th November, 2010 & 11th February, 2011 in accordance with Rule 5.9.1 (ii) i.e. by making its own assessment of the performance of the appellant in the relevant years on the basis of various entries recorded in the ACRs for the said years. The counsel for the appellant has also shown to us the minutes of the DPC relating to others where ratings against separate entries were considered by the DPC to make its own assessment and promotion was granted even where the overall rating in the ACRs did not make the candidates eligible for promotion. A direction for a similar exercise to be done qua the appellant is sought.
LPA No.39/2012 Page 6 of 12
8. The senior counsel for the respondent has contended that the appellant has argued on the basis of entries in the ACR for one period only and not qua ACRs for the remaining period. It is shown that the ratings for separate parameters / ingredients / entries for the remaining period are not as good and in fact the appellant has also been rated „below normal‟ against degree of intelligence and general knowledge; „not punctual‟, „not up to mark‟ on the attribute of commitment to the task assigned; and, „below normal‟ on the attribute of devotion to duty.
9. The senior counsel for the appellant rejoins by contending that the appellant is merely seeking a review.
10. Though the minutes of the meeting of the DPC held on 4 th November, 2010 and 11th February, 2011 do not expressly record that the individual entries recorded in the ACRs were also seen but at the same time there is nothing to suggest that the same were not so seen. The presumption is that the members of the DPC assessed the various entries recorded in the ACR and did not find any reason to differ from the overall grading/rating recorded in the ACRs. It may also be mentioned that it is only where the DPC, on the basis of various entries recorded in the ACRs differs from the overall LPA No.39/2012 Page 7 of 12 grading recorded in the ACR that the mention thereof would be found and not where the DPC does not so differ. Analogy can be drawn with the orders of the Disciplinary Authority. The Supreme Court in National Fertilizers Ltd. Vs. P.K. Khanna (2005) 7 SCC 597 reiterated that the Disciplinary Authority is required to give reasons only when the Disciplinary Authority does not agree with the findings of the Inquiry Officer; when the Punishing Authority agrees with the evidence of the Inquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss the evidence and come to the same findings as that of the Enquiry Authority and give the same reasons for the findings. Even in Sarat Kumar Dash Vs. Biswajit Patnaik 1995 Supp (1) SCC 434, it was held that appointing authority when accepting the recommendation of the Public Service Commission need not again record reasons for accepting the recommendations.
11. We have enquired from the senior counsel for the appellant whether any pleas of mala fide in the matter of recording of ACR or of vindictiveness against the appellant were made. He fairly states that such a plea only against one of the Reviewing Officer for one period was taken and which has also not been established before the learned Single Judge. LPA No.39/2012 Page 8 of 12
12. We, in exercise of power of judicial review are incompetent to sit in appeal over the overall gradings given by the Reporting and Reviewing Officers who have written the ACRs of the appellant for the various years. We also are of the opinion that for this Court to issue a direction for review as sought, it is necessary first to record a finding of disagreement with the overall ratings and for which we do not find any case to have been made out. It is well-nigh possible that a candidate individually and separately assessed on different parameters may be "Very Good" but the overall impact and effect or the working may still be "Good" and not "Very Good". The composite evaluation has to encompass consideration of several elements which transcend or go beyond the individual qualities. A comparison can be made with assessment of beauty in this regard; perfect individual facial features (on their own respective parameters) do not always make a beautiful face. Aristotle said "the whole is more than the sum of its parts. The point can be brought home also from the following-
i. Perfect ingredients don‟t guarantee a perfect dish; ii. presence of popular stars can't make a movie great; iii. presence of eleven skilled cricketers would not necessarily make a highly successful cricket team.LPA No.39/2012 Page 9 of 12
We are therefore of the opinion that no case for remanding the matter also is made out. If this Court were to start interfering with the decision of the members of the DPC and the Reviewing Officer on asking, it would open the flood gates of litigation and make the whole process unmanageable.
13. The evaluation of an employee for the purpose of granting promotion is a subjective exercise requiring powers of insight, perception, discernment and reflection and which cannot be reduced to a simple mathematical formula requiring the mere addition of the attributes he has been marked upon. We must remember that such an exercise entails not only a consideration of the merits of the concerned candidate but also his „suitability‟ for the post. The observations of the Supreme Court in State Bank of India Vs. Mohd. Mynuddin (1987) 4 SCC 486, can be profitably perused in this regard:
"The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds scientific, technical, financial, LPA No.39/2012 Page 10 of 12 industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer."
The Courts thus cannot adopt a hyper-technical approach and insist that the overall grading must be strictly identical to the individual marking on the various attributes. Such selections with their attendant subtleties, niceties and nuances involve a substantial „subjective‟ element and the same cannot be reduced to a cut and dried mechanical formula. It is imperative that the Courts permit the concerned Committee some flexibility, some play in the joints, so as to enable a meaningful completion of the task of selection/promotion.
14. The Division Bench of this Court recently in Sri Jagmohan Singh Negi Vs. Union of India MANU/DE/1903/2011 also faced with a similar argument held that if for approximately half period, different attributes LPA No.39/2012 Page 11 of 12 graded are 'Adequate', 'Just Average', 'Average' or 'Satisfactory' and for the remainder 50% period the person concerned is graded 'Good'; the overall grading being 'Average' would not be so arbitrary so as to invite judicial intervention.
15. We therefore do not find any merit in the only argument raised before us and dismiss this appeal.
No costs.
RAJIV SAHAI ENDLAW, J CHIEF JUSTICE DECEMBER 21, 2012 pp LPA No.39/2012 Page 12 of 12