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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1358/2015
Date of decision: 13th January, 2016
UNION OF INDIA & ANR ..... Petitioner
Through Mr. Anurag Ahluwalia, CGSC.
versus
RAKESH RANJAN ..... Respondent
Through Mr. O.P. Kalshian, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
Union of India by this writ petition impugns the following findings and directions given by the Central Administrative Tribunal, Principal Bench (Tribunal, for short) vide order dated 17th October, 2014 in OA No.2754/2013:-
"19. Having considered the above facts and judgments cited by the learned counsel for the applicant, we are of the view that the review DPC should not have ignored the upgraded ACR of the applicant for the year 2003-04 by grading the officer as „Good‟ as against the upgradation to „Very Good‟. Such action is not permissible as has been held by the Tribunal in OA-2681/12 vide order dated 24.08.2013. For the same reason, the W.P.(C) 1358/2015 Page 1 of 8 ACR for the year 2003-04 has to be reviewed again and the review DPC needs to be convened to consider the applicant‟s case afresh in the light of aforenoted decision of the Tribunal. We are also of the view that in line with the directions contained in the order dated 30.08.2011 in OA- 464/2010 of the Calcutta Bench of this Tribunal, the review DPC has to be held to consider the promotion of the applicant by reviewing the proceedings of the DPC held on 5.10.2009 as well as for the review DPC held on 20.12.2009 to consider the promotion of the applicant against the vacancy year 2009-10 and each year thereafter. In the event of the review DPC finding the applicant fit for promotion, the respondents shall promote the applicant from the date his immediate junior was promoted with consequential benefits, except arrears of pay. The aforenoted exercise shall be undertaken and shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
2. In order to appreciate the controversy and to decide whether the aforesaid findings and directions are correct, brief facts may be noticed.
(i) The respondent is an officer of Indian Defence Accounts Service.
(ii) In the review Departmental Promotion Committee (DPC) meeting held on 5th October, 2009 for promotion to the grade of Principal Controller of Defence Accounts, necessitated on account of W.P.(C) 1358/2015 Page 2 of 8 increase in vacancies and to streamline the panel, the respondent at Sr. No.21 of the eligibility list, was assessed as „unfit‟ for promotion along with some other officers.
(iii) One R.K. Anand, who was also declared „unfit‟ for promotion, filed a petition before the Tribunal and directions were issued for communication of below the benchmark ACRs, with liberty to make representation and in the event of ACRs being upgraded, to hold a review DPC.
(iv) The respondent on receipt of below the benchmark ACRs for the years 2003-04 and 2004-05, made a representation and vide order dated 10th December, 2010, the gradings were revised from „Good‟ to „Very Good‟.
(v) The respondent filed an Original Application before the Calcutta Bench of the Tribunal, which was disposed of on 20 th August, 2011 with a direction to hold a review DPC.
(vi) The review DPC in its meeting held on 27th December, 2012 did not agree with the upgradation of ACR for the period 2003-04 and assessed the respondent as „unfit‟ for promotion to the grade of Principal Controller of Defence Account in the Indian Defence W.P.(C) 1358/2015 Page 3 of 8 Accounts Service in the year 2009-10. Pertinently, the review DPC had accepted the upgradation of the ACR for the year 2004-05 as „Very Good‟.
(vii) This order of the review DPC dated 27th December, 2012 was made subject matter of challenge before the Tribunal in OA No. 2754/2013.
3. Learned counsel for the petitioner has submitted that the finding recorded in paragraph 19 quoted above that the DPC should not have ignored the accredited ACR of the respondent for the year 2003-04 and such action was impermissible, is factually and legally incorrect. He has drawn out attention to the minutes of the review DPC dated 27th December, 2012, in which the case of the respondent was considered and it was also examined whether in view of the upgradation in the ACR for the year 2003-04 from „Good‟ to „Very Good‟, the respondent should be declared fit for promotion.
4. We find merit in the contention of the learned counsel for the petitioner-Union of India. Minutes dated 27th December, 2012, placed on record indicate that members of the said DPC, namely; the Chairman, UPSC; the Financial Adviser Defence Services; and the W.P.(C) 1358/2015 Page 4 of 8 Controller General of Defence Accounts, after considering the ACRs for the year 2003-04, had made the following remarks:-
"9.1 The Committee observed that in the ACRs for the year 2003-04, the Reporting Officer has only broadly agreed with the self assessment made by the officer. The entries in almost all the columns, the officer has been graded as good only whereas in the general assessment column (Column 3-Pt. IV) the Reporting Officer has stated that the officer needs to manage and exercise administrative authority independently with due case (sic) and caution which is an advisory. In column 4 (a) of Part (V) the Reviewing Officer has advised to improve the functioning of the officer. With these entries in it, the Report of 2003-04 cannot be graded as „Very Good‟ in any manner. Hence, the Committee did not agree with the upgradation of the ACR and graded it as „Good‟ only.
It would be, therefore, incorrect to state that the review DPC did not take into account or consider the revised ACR and the upgradation for the year 2003-04. They had consciously and suitably disagreed.
5. Learned counsel for the respondent would submit that the findings and the appraisal made by the review DPC in the meeting held on 27th December, 2012 was erroneous and incorrect. In support, he has referred to the minutes or the findings recorded in the order dated 10th December, 2010 upgrading the ACR for the year 2003-04. W.P.(C) 1358/2015 Page 5 of 8 In particular, our attention is drawn to paragraphs 4 and 7 of the said order, which for the sake of clarity and convenience, we would like to reproduce. The said paragraphs read:-
"4. And whereas, in his general assessment [Part IV 3], the Reporting Officer has mentioned that Shri Ranjan „is having adequate knowledge of working (of) the factory organisation‟ but „[needs to manage and exercise administrative authority independently with due care and caution.
5. x x x x
6. x x x x
7. And whereas, the Competent Authority noted that there is some merit in the officer‟s contention. An officer holding independent charge of a field office, could not possibly have achieved whatever he has mentioned in his self-appraisal, with which the Reporting Officer is in broad agreement, only under „due supervision and appropriate guidance‟, as observed by the Reporting Officer. Such supervision and guidance cannot extent to day-to-day functioning of an independent officer by the main office. The achievements mentioned in the self-appraisal could also not have been possible if the officer possessed only „good‟ initiative and planning ability, or if he possessed only „good‟ knowledge of rules, functions etc. as remarked by the Reporting Officer. In fact, judging purely by what Shri Ranjan has mentioned in his self-appraisal, with which the Reporting Officer has expressed his broad agreement, his being graded as „good‟ on account of other attributes also, as mentioned in para 3 above, is evidently case of underassessment on the part of the Reporting Officer.W.P.(C) 1358/2015 Page 6 of 8
The Reviewing Officer and the Accepting Authority also seem to have based their assessment on the remarks of the Reporting Officer, as the apparent inconsistency in the remarks of the Reporting Officer vis-a-vis the self-appraisal has not been commented upon by either of them."
6. We have deliberately quoted the aforesaid portion of the order dated 10th December, 2010, for they would, in fact, corroborate and support the reasoning given by the review DPC in the minutes dated 27th December, 2012. Paragraph 7 of the said order is rather ambiguous and records observations made in the ACR forms and yet records that the Reviewing and Accepting Authority seem to have based their assessment on the remarks of the Reporting Officer. This reasoning and finding is unacceptable, as recorded by the Review DPC.
7. Learned counsel for the petitioner has produced before us the ACR form for the year 2003-04 and has drawn our attention to the recordings made therein. Specific attention has been drawn to Part- IV, column No.3 and Part-V, remarks of the Reviewing Authority at Sr. No.4. It is apparent to us that both Reviewing and the Reporting authority had the advantage of seeing actual performance and working of the officer and grading him at the relevant time. Moreover, we do W.P.(C) 1358/2015 Page 7 of 8 not think that the findings recorded by the review DPC are such that would merit or require interference by the Tribunal in exercise of limited power of judicial review. We also observe that the DPC is entitled to examine the gradings given in the ACR and independently form their opinion, though they must record reasons in case they differ and do not accept the gradings.
8. Learned counsel for the respondent has pointed out that the respondent was promoted as Principal Controller of Defence Account in the year 2012. Thus, the issue in question before us is whether the said promotion should have been granted from the year 2009-10.
9. For the aforesaid reasons, we find merit in the present writ petition and the same is allowed. We set aside and quash the order dated 17th October, 2014 and the directions given in paragraph 19 of the aforesaid order.
10. The writ petition is accordingly disposed of. No costs.
SANJIV KHANNA, J.
NAJMI WAZIRI, J.
JANUARY 13, 2016 NA W.P.(C) 1358/2015 Page 8 of 8