THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18.07.2012
+W.P.(C) 3937/2012
UNION OF INDIA AND ORS ... Petitioners
versus
HALDHAR PRASAD ... Respondent
And
W.P.(C) 3970/2012
HALDHAR PRASAD ..... Petitioner
versus
UNION OF INDIA AND ORS ..... Respondents
Advocates who appeared in these cases:
For the Petitioner in WP(C)3937/2012 and for the
Respondent in WP(C)3970/2012 : Dr Ashwani Bhardwaj
For the Respondent in WP(C)3937/2012 and for the
Petitioner in WP(C)3970/2012 : Mr S.K.Gupta
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
WP(C) No.3937 & 3970 of 2012 Page 1 of 5
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. Both the writ petitions are taken up together as they arise out of the very same order dated 17.11.2011 passed in O.A. No.2437/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi.
2. Dr Haldhar Prasad was aggrieved by the fact that he was not granted promotion to Senior Administrative Grade inasmuch as he was found unfit on account of below benchmark ACRs in the DPC held in September, 2009. Subsequently the below benchmark ACRs were communicated and Dr Prasad submitted a representation against the same. The representation was considered and it was decided by the competent authority (GM, Eastern Railway) to upgrade certain gradings, the details whereof are as follows:-
Year ending Earlier Revised Grading
March 2005 I Good Very Good
March 2005 II Good No change
March 2006 Good Very Good
March 2007 I Good Very Good
WP(C) No.3937 & 3970 of 2012 Page 2 of 5
3. Insofar as the DPC for the next promotion in the next year was concerned, these upgraded ACRs were placed before the said DPC and Dr Prasad was found fit for the promotion to Senior Administrative Grade. However, Dr Prasad wanted his promotion w.e.f. 2009 when he was earlier found 'unfit' by the DPC convened in that year on the ground of below benchmark ACRs which were subsequently upgraded. 4 The fact of the matter is that the below benchmark ACRs had not been communicated to the said Dr Prasad. Consequently, the Tribunal, after considering the rival contentions of the parties allowed the O.A. of Dr Prasad and directed the petitioner herein to hold a review DPC in respect of the year 2009 to consider the applicant for promotion to the post of Senior Administrative Grade and if the recommendations of the review DPC were that the said Dr Prasad was fit, he may be promoted from the date his immediate junior was promoted. The Tribunal also directed that Dr Prasad would not be entitled to actual wages but his pay would be notionally fixed on the promotional post. We may point out that Dr Prasad has filed his writ petition in respect of this part of the order whereby he was given notional pay and not actual wages.
WP(C) No.3937 & 3970 of 2012 Page 3 of 5
5. We have heard counsel for the parties at some length. We find that the below benchmark ACRs had not been communicated. The Supreme Court in Dev Dutt vs. Union of India and Ors., (2008) 8 SCC 725, was of the opinion that the non-communication of ACRs would be arbitrary and as such would be violative of Article 14 of the Constitution of India. That decision had come on 12.05.2008. After that, it was well known that the below benchmark ACRs ought to have been communicated before they were to be considered against the incumbent. The fact that they were not communicated, and, it is because of that Dr Prasad was found unfit in the DPC held in 2009, meant that the valuable rights of Dr Prasad had been violated. Consequently the Tribunal has provided relief to Dr Prasad by directing that a review DPC be constituted particularly in view of the fact that subsequently those very below benchmark ACRs have been upgraded by the competent authority.
6. We see no reason to interfere with this finding of the Tribunal. We also see no reason to alter the direction given by the Tribunal that in case Dr Prasad is found fit for promotion to the post of Senior Administrative Grade, he would be paid actual wages. The Tribunal was right in directing WP(C) No.3937 & 3970 of 2012 Page 4 of 5 that his pay would be fixed notionally on the promotional post.
7. In view of the foregoing, both the writ petitions are dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J SIDDHARTH MRIDUL, J JULY 18, 2012 mk WP(C) No.3937 & 3970 of 2012 Page 5 of 5