* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 14.02.2012
+ W.P.(C) No. 1247/2011
UOI AND ANR ..... Petitioners
Through : Mr Ankur Chibber
versus
KM PRIYADARSHANAN ..... Respondent
Through : Mr M.K.Bhardwaj
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K. JAIN
BADAR DURREZ AHMED, J. (Oral)
1. The present writ petition has been filed on behalf of the Union of India being aggrieved by the direction given by the Tribunal as contained in paragraph 9 thereof:-
"9. This OA stands disposed of with a direction to the respondents to convey the ACR for the period 2004-05, which has already been conveyed in 2010 to the applicant as per APAR methodology adopted by the DOPT, yet this will not effect subsequently the right of the applicant for making a representation and in the event, the reviewing and reporting officers stood retired, the ACR would have to be ignored......"
2. The said order was passed in OA No.186/2010 dated 16.09.2010. The respondent had filed the said Original Application with regard to his claim to promotion as Principal Scientific Officer from the date of his immediate junior with all benefits by holding a review DPC etc. The order dated 22.08.2008 whereby the respondent's claim was turned down was assailed before the Tribunal.
W.P(C)1247/2011 Page 1 of 4
3. The petitioners are aggrieved particularly by the fact that the Tribunal has directed that the adverse ACR be conveyed in respect of the period 2004-2005 and that in case the reviewing and reporting officer stand retired, the said ACR would have to be ignored for the purpose of considering the case of the respondent for promotion to the aforesaid post of Principal Scientific Officer. The learned counsel for the petitioners pointed out that the Tribunal had placed reliance on the decision of this Court in the case of Ranjana Kale v. Chief Economic Adviser and Anr. in WP(C) 13488/2009 dated 01.07.2010 whereby a direction had been issued to communicate the adverse ACRs and also that the said ACRs be ignored if the reviewing officer and reporting officer had retired. However, we find that the said decision in Ranjana Kale's case has not met with the approval of the very same Bench which decided Ranjana Kale's case. This is apparent from the decision in the case of Union of India v. Krishna Mohan Dixit in W.P.(C) 6013/2010 decided on 08.10.2010 and other connected matters where the very same Bench observed as under:-
"12. We are conscious of the fact that dismissing certain writ petitions in limine, this Bench had upheld orders passed by the Tribunal wherein the absence of the Reporting Authority/Reviewing Authority, following Abhijit Ghosh Dastidar's case directions were issued by the Tribunal to altogether ignore the below benchmark ACRs and consider the further preceding year ACR which were up to the benchmark. But we must confess that nobody drew our attention to paragraph 37 of the decision in Dev Dutt's case as also to the O.M. dated 30.01.1978, relevant extract whereof has been noted in para 4 above. The said decisions are dismissals in limine without reasons and hence are not binding precedents. Abhijit Ghosh Dastidar's case, as noted by us hereinabove follows the law laid down in Dev Dutt's case, but makes a departure with respect to the final direction issued for the reason the Supreme Court found that Abhijit Ghosh Dastidar had superannuated and it was in said context the Supreme Court did not direct further follow up action as per the law laid down by the W.P(C)1247/2011 Page 2 of 4 Supreme Court in Dev Dutt's case. It is apparent that the direction in Abhijit Ghosh Dastidar's case has to be traced through the power of the Supreme Court under Article 142 of the Constitution of India."
4. The said Division Bench, thereafter, in the case of Krishna Mohan Dixit (supra) categorically arrived at the following conclusions:
"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 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.'' (underlining added)
5. In the present case, the reviewing and the reporting officer have retired. But, in view of the decision in Dixit's case (supra), it would be of no consequence because the representation is to be considered by the higher authority. It is clear that the ACR for the W.P(C)1247/2011 Page 3 of 4 period 2004-05 cannot be ignored inasmuch as the representation of the Respondent, if any, would be considered by an authority higher than the reporting officer.
6. At the request of the learned counsel for the respondent, a further copy of the ACR for the period 2004-2005 shall be communicated to the respondent within one week. Thereafter, within two weeks, the respondent may file a representation which, if filed within the said period of two weeks, shall be considered in terms of this judgment and the decision in Dixit's case (supra).
The writ petition stands disposed of accordingly.
BADAR DURREZ AHMED, J V.K. JAIN, J FEBRUARY 14, 2012 'sn' W.P(C)1247/2011 Page 4 of 4