* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 6016/2014
Reserved on: 17th November, 2016
% Date of Decision: 30th January, 2017
UNION PUBLIC SERVICE COMMISSION ....Petitioner
Through:Mr. Naresh Kaushik, Advocate.
Versus
KHETRABASI BISWAL & ANR. .....Respondents
Through: Mr. G.K. Kaushik, Advocate for respondent
No.1
Mr. Sumant Bhushan, Advocate for Mr.
Akshay Makhija, CGSC
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
CHANDER SHEKHAR, J.
This writ petition is directed against the order dated 27.2.2014 in OA No. 3893/2012 passed by the Central Administrative Tribunal (hereinafter referred to as „CAT‟), Principal Bench, New Delhi.
2. The main grievance of the petitioner is that the CAT, vide order dated 27.2.2014 in OA No.3893/2012, has directed the petitioner - Union Public Service Commission - to treat the Annual Confidential Report („ACR‟) of the applicant for the year 2006-2007 as "Very Good" and promote the WP(C) No.6016/2014 Page 1 of 11 officer concerned without even asking for a Review Departmental Promotion Committee („DPC‟). The CAT, it is asserted, had acted beyond its jurisdiction and there is an error in the decision-making process and the grading conferred as "Very Good", is without any reason or justification.
3. The brief facts of the case are:
(a) The Respondent no.1- Khetrabasi Biswal was selected through an open selection conducted by the Petitioner and was appointed to the post of Assistant Legislative Counsel in Indian Legal Services, on 8.04.1999.
(b)The Respondent no.1 was promoted to the posts of Deputy Legislative Counsel (Grade III of the Indian Legal Service) on 20.8.2002.
(c) The Respondent no.1 was promoted to the post of Additional Legislative Counsel on 05.08.2008 on the recommendations of the DPC held on 28.07.2008. It is pertinent to mention here that the DPC held on 28.07.2008 duly considered the Respondent no.1 for promotion and took into account the ACRs for the period of 5 years from 2001-02 to 2005-06. The DPC assessed the Respondent no.1 as „Very Good‟ for the years 2001-02 to 2004-05 and assessed him as „Good‟ for the year 2005-06. Since only 4 benchmark grading of Very Good out of 5 ACRs was required for being declared „Fit‟, the Respondent no.1 was recommended for promotion to the feeder post of Additional Legislative Counsel.WP(C) No.6016/2014 Page 2 of 11
(d) The respondent No.1 vide communication received on 31st March 2011, was informed of the below benchmark grading in the ACRs for the period 01.04.2005 - 31.03.2006, 01.04.2006 to 31.03.2007 and 01.04.2007 to 23.07.2007. The respondent No.1 submitted representations for the upgradation of the ACRs on 08.04.2011. The respondent No.2 upgraded the ACRs of the Respondent no.1 for the period of 01.04.2005 to 31.03.2006, 01.04.2006 to 31.03.2007 and 01.04.2007 to 23.07.2007 on 15.07.2011.
(e) The DPC to consider promotions to the post of Joint Secretary and Legislative Counsel against 02 vacancies pertaining to the year 2012-13, to be held on 30.07.2012 was postponed to 1st August and then to 3rd August 2012 as necessary clarification in regard to the vigilance status in respect of one of the officers in the zone of consideration was not forthcoming. As the requisite clarification was not received from the Department despite two postponements, it was decided to go ahead with the DPC on the basis of the Vigilance Clearance furnished by the Ministry with the proposal. There were four eligible officers including the respondent No.1, who was at S. No.2 of the zone of consideration. The DPC took into account five ACRs from the year 2006-07 to 2010-2011 in respect of all officers in the zone of consideration. The DPC after going through the entire ACRs of the first respondent including the personal attributes was of the considered opinion that the upgrading of the ACR from „Good‟ to „Very Good‟ was WP(C) No.6016/2014 Page 3 of 11 not justified and therefore the overall grading was „Good‟ for the period of 2006-07. Accordingly the first respondent was declared „unfit‟ for promotion.
4. The respondent No.1 consequently filed OA No.3893/2012 before the CAT, which has been allowed by the impugned order dated 27.02.2014. Paragraph 9 of the impugned order directs:
"9. In our view, if the applicant is not promoted, it will be gross travesty of justice. We also feel that there is no point in asking for a review DPC as this is the only offending ACR. We direct the respondents to treat the ACR of the applicant for the year 2006-2007 as „Very Good‟ and promote the officer concerned to the post of Joint Secretary and Legislative Counsel (Grade I of Indian Legal Service) within a period of eight weeks from the receipt of a certified copy of this order. No costs."
5. The petitioner submits that the DPC had duly followed the O.M. dated 10.04.1989 which accepts that the DPC should not be guided merely by the overall grading recorded in the ACRs, and should make its own assessment. It has been noticed that sometimes the overall grading in an ACR may be inconsistent with the grading under various parameters or attributes. In the present case, the DPC had found that the upgrading of ACR of the Respondent No.1 from „Good‟ to „Very Good‟ was not justified. Therefore, WP(C) No.6016/2014 Page 4 of 11 the Respondent no.1 had failed to attain the prescribed benchmark of „Very Good‟ in all five ACRs taken into consideration by the DPC in terms of DOP&T O.M. dated 18.02.2008. The first respondent was rightly declared „unfit‟.
6. Reference was made to Union of India & Anr. vs S.K. Goel & Ors. AIR 2007 SC 1199, wherein OM No. 10.04.1989 and paragraph 6.2.1(e) of the DPC guidelines were considered and it was observed as under:
"....20. In our opinion, the judgement of the Tribunal does not call for any interference inasmuch as it followed the well settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of the DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is mis-grading of confidential reports."
7. The Supreme Court, it was urged, in Union of India & Anr. vs A.K. Narula AIR 2007 SC 2296, has observed that the DPC has to be given a certain amount of play in the joints and it need not be guided by the overall grading recorded in the confidential reports. They must make their own assessment on the basis of entries made in the ACR. The assessment and performance of each candidate has to be made separately. If the DPC has proceeded in a fair, impartial and reasonable manner by applying the same WP(C) No.6016/2014 Page 5 of 11 standards and norms to all candidates, the court would not interfere for there is no arbitrariness. In the said case, the review DPC had decided not to accept the change in the grading of the officer from „good‟ to „very good‟ and had held that the grading should continue to remain as „good‟. The said finding was upheld in the absence of any allegation of malafide or bias against the DPC. It was not shown that there was arbitrariness in the said assessment.
8. Reliance was also placed on the decisions of the Supreme Court in State of Madhya Pradesh v. Shrikant Chaphekar 1993(1) MPJR (SC) 329 and U.P.S.C. v. K. Rajaiah & Ors., AIR 2005 SC 2853.
9. Now, reverting to the facts of the present case, we would notice the observations and recordings of the Reporting and Reviewing Officers. The confidential report of the officer Part-IV whereof as concerned, filled by the Reporting Officer, reads as under:
"Part-IV General
1. State of health: Normal
2. Integrity : Beyond doubt (Please see note below the Instructions)
3.General Assessment:
Please give an overall assessment of the officer with reference to his/her strength and shortcomings and also by drawing attention to the qualities, if any, not covered by the entries above. Average
4.Grading WP(C) No.6016/2014 Page 6 of 11 (Outstanding/Very Good/Good/Average/Below Average):
(An officer should not be graded outstanding unless exceptional qualities and performance have been noticed; grounds for giving such a grading should be clearly brought out.) Average"
It would be relevant to reproduce the remarks of the Reviewing Officer, Mr. Justice Arunabha Barua (Retd.) i.e., Chairperson, Debts Recovery Tribunal, Kolkata, dated 14.11.2007; which read:
"Part-V - Remarks of the Reviewing Officer
1.Length of service under the Reviewing Officer:April 2005 to March 2006
2. Is the Reviewing Officer satisfied that the Reporting officer has made his/her report with due care and attention and after taking into account all the relevant material? Not Satisfied
3. Do you agree with the assessment of the Officer given by the Reporting Officer?
(In case of disagreement, please specify the reasons). Is there anything you wish to modify or add? No I had this Tribunal‟s Bench sittings as well as inspection of the DRT, Cuttack and its office from time to time and had the occasion to see and assess the performance of Sri K. Biswal as Registrar of the Tribunal. I found him to be quite knowledgeable, intelligent, obedient, sincere and efficient.
4. General remarks with specific comments about the general remarks given by the Reporting Officer and remarks about the meritorious work of the Officer including the grading.He is a WP(C) No.6016/2014 Page 7 of 11 good officer.
5.Has the Officer any special characteristics, and/or any liabilities, which would justify his/her selection for special assignment or/out-of- turn promotion and if so, specify? Competent enough to be considered for promotion in due course."
10. It is quite apparent that the Reporting Officer had granted grading of "Good" to the first respondent in the ACR for the year 2005-2006. However, the remarks of the Reviewing Officer read "(i) the first respondent was a good officer and (ii) was competent enough to be considered for promotion in due course." Remarks of the Reporting Officer and the Reviewing Officer were divergent and the findings of the Reviewing Officer were clearly affirmative and in favour of the officer. The Reporting Officer had not elaborated and detailed his remarks. The Reviewing Officer, disagreeing with the reporting officer, has given comprehensive remarks and was positive in the recorded observations. The Reviewing Officer had formed an opinion on the basis of his personal interaction and on this basis had affirmed the first respondent's capabilities and performance.
11. There being a conflicting opinion, either the Reporting Officer or the Reviewing Officer was correct in making their assessment. This was the task and the aspect to be examined by the DPC. It would not be correct to hold WP(C) No.6016/2014 Page 8 of 11 that whenever there are divergent opinions of the Reporting and Reviewing Officers, the adverse opinion and not the positive affirmation should be accepted. The fact that the opinion and performance appraisal is to be made by both the Reporting as well as Reviewing Officer makes the assessment objective and fair. We have reproduced in verbatim, the comments made by the Reporting Officer and the Reviewing Officer and observed that in the present factual matrix the opinion of the Reporting Officer was rather perfunctory, whereas the Reviewing Officer in his disagreement had made specific and cogent remarks. Hence, in the given facts, the opinion of the Reviewing Officer did carry weight, albeit could have been rejected by the DPC by recording reasons and grounds. The reasons and grounds for rejecting and ignoring the said remarks by the DPC is not ascertainable and remains a mystery. We are unable to fathom and comprehend any reason and ground to reconcile and accept the DPC‟s acceptance of the grading given by the Reporting Officer. In these circumstances, the tribunal was justified and correct in rejecting the grading given by the DPC on the basis of the observation of the Reporting Officer alone. The tribunal has rightly observed that there was arbitrariness.
WP(C) No.6016/2014 Page 9 of 11
12. The form, so far as grading is concerned, whether it should be A+, A or B or B+ etc., does not prescribe the grading in such a manner. However, when we conjointly read paras 4 and 5 of the remarks of the Reviewing Officer for April 2005 to March 2006, it was stated/recorded that the respondent was a good officer and competent enough for promotion in due course. The benchmark for promotion being "very good", the recording indicates that the grading of the officer was "Very Good".
13. However, at the same time, we notice that an error has been made by the tribunal, for they do not have the power and authority to evaluate and grant promotion. The Tribunal, in this case, acted beyond its jurisdiction while passing the impugned order, directing the petitioner to promote the first respondent to the post of Joint Secretary and Legislative Counsel (Grade I of the Indian Legal Service), by substituting itself for the Review DPC. In Madhya Pradesh v. Shrikant Chaphekar(supra), the Supreme Court has observed where the Court/Tribunal comes to the conclusion that the person was not considered for promotion or the consideration was illegal, then the only direction which can be given is to reconsider his case in accordance with law and the Tribunal cannot substitute itself for the DPC. WP(C) No.6016/2014 Page 10 of 11
14. Under these circumstances, we are of the opinion that the impugned order of the Tribunal dated 27.2.2014 passed in OA No.3893/2012 to this extent is liable to be set aside. In view of the above premises, in the interests of justice, we remand the matter to the UPSC for putting up the same before the Review DPC. The petitioner shall constitute a Review DPC within one month from the date of receipt of this order and the Review DPC shall assess respondent No.1 and consider him for promotion.
15. The petition is accordingly disposed of, with no order as to costs.
(CHANDER SHEKHAR) JUDGE (SANJIV KHANNA) JUDGE JANUARY 30, 2017 tp WP(C) No.6016/2014 Page 11 of 11