Delhi High Court
Dr. Vijay Bahadur vs Uoi & Ors. on 4 December, 2009
Author: Pradeep Nandrajog
i.7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 04, 2009
+ W.P.(C) 6223/2008
DR. VIJAY BAHADUR ..... Petitioner
Through: Ms.Rekha Palli, Advocate
versus
UOI & ORS ..... Respondents
Through: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported in the Digest? No
PRADEEP NANDRAJOG, J. (Oral)
1. Rule DB.
2. The record required to be produced pursuant to the
order dated 17.11.2009 has been produced in a sealed cover
which has been opened and perused by us and after resealing
the same under signatures of the Court Master has been
returned to the respondents.
3. The record shows that for the year 2003-04 the
petitioner was graded as 'Very Good'. For the year 2004-05
the Initiating Officer recommended that petitioner be rated as
'Very Good'. The Reviewing Officer penned a note that the
petitioner should be rated as 'Good'. The Senior Reviewing
Officer recorded that the grading of the petitioner should be
'Average'. The reason for grading petitioner as average is as
under:-
"I do not agree with the Reporting and Reviewing
Officers. Dr.Vijay Bahadur, as a member of the
Medical Board, was found wanting in correct and
proper medical examination of Kosovo Contingent
when some candidates were declared medically unfit
while they were actually 'fit' as found by another
Board reconstituted for the purpose.
His performance is graded as Average.
4. For the next year i.e. year 2005-06 the petitioner
has been graded once again as 'Very Good'.
5. It is not in dispute that the ACR grading for the year
2004-05 downgrading the rating of the petitioner from 'Very
Good' to 'Average' by the Senior Reviewing Officer was never
communicated to the petitioner who was thus denied an
opportunity to represent against the same.
6. What has happened is that at the DPC held on
2.7.2007, with reference to the ACR grading of the petitioner
for the year 2004-05 rating him as 'Average' he has not been
found fit to be promoted to the next post i.e. the post of DIG
Medical.
7. We note that pursuant to DPC held in the year 2009
the petitioner earned his promotion to the post of DIG Medical.
8. The grievance of the petitioner is that since the ACR
grading, down-rating him from 'Very Good' to 'Average' for the
year 2004-05 was not communicated to him, a valuable right
to represent against the same has been violated.
9. As per the petitioner if his ACR grading is restored it
would have an impact on the DPC proceedings held on
2.7.2007.
10. In the decision reported as 2008 (8) SCC 725 Dev
Dutt Vs. UOI & Ors. it was held that a downgrading in an
Annual Confidential Report though not technically adverse
needs to be communicated to the person affected, more so,
when the downgrading, though not adverse, would have an
effect on the service career of the petitioner with reference to
the benchmarks required to be achieved for purposes of
promotion.
11. Needless to state, in the instant case to be
promoted as DIG Medical requisite benchmark is 'Very Good'.
Thus, downgrading the petitioner from the previous rating of
'Very Good' to 'Average' would certainly affect his chances of
promotion.
12. We dispose of the writ petition directing that within
4 weeks from today, if petitioner were to submit a
representation pertaining to his ACR grading for the year
2004-05, contents whereof have been noted by us in the
present para 3, the representation would be decided within a
period of 6 weeks of receipt thereof, under communication to
the petitioner. We further direct that if the representation of
the petitioner results in his ACR grading been restored or
enhanced to 'Good' or 'Very Good' in said eventuality a review
DPC would be held as on the date 2.7.2007 and relevant ACRs
of the petitioner would be considered. If petitioner is found
suitable for promotion he would be granted promotion with
effect from the date persons junior to him were promoted and
necessary orders would then be passed by the Competent
Authority pertaining to release of pay. Needless to state in the
event he is found entitled to be promoted petitioner would be
entitled to consequential benefits of deemed promotion from
the date persons junior to him were promoted and length of
service in the post of DIG Medical save and except payment of
actual salary for which the Competent Authority would pass
necessary orders as per the Rules applicable.
13. In case the representation of the petitioner is
rejected remedy as per law can be availed by the petitioner.
14. No costs.
15. DASTI.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
DECEMBER 04, 2009
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