Durga Prasad vs U.O.I & Anr
2009 Latest Caselaw 599 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     W.P.(C) No. 6156/2007

%                     Date of Decision : 19th of February, 2009


#     DURGA PRASAD                        ..... Petitioner
!                           Through: Mr. Ravi Prakash and
                            Mr. Vikrant Ghumare, Advs.

                      versus


$     U.O.I & ANR                         ..... Respondent
^                           Through: Mr. Ankur Chhibber, Adv.


*     CORAM:
      HON'BLE MR. JUSTICE B.N.CHATURVEDI
      HON'BLE MR. JUSTICE S.L.BHAYANA

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?             No


      2.    To be referred to the Reporter or not?          No


      3.    Whether the judgment should be                  No
            reported in the Digest?


: B.N.CHATURVEDI, J. (Oral)

1. The petitioner, a Deputy Commandant in CRPF, was

considered for promotion to next higher rank by a DPC on 24th

March 2005 and subsequently by another DPC on 5th May

2006, but since he was facing a departmental enquiry, the

result of his promotion was kept in a sealed cover on both the

occasions. The petitioner was exonerated in the departmental

enquiry on 21st February 2007 whereafter, the results of DPCs

held in 2005 and 2006 respectively, which were kept in sealed

covers, were opened and it was revealed that the petitioner

was found unfit for promotion by both the DPCs. The result of

his being found unfit for promotion, as disclosed from the

sealed covers for the said two years, was communicated to the

petitioner on 3rd April 2007. The petitioner was however,

promoted subsequently on 29th September 2007 as 2nd-in-

Command.

2. The grievance of the petitioner is that the adverse ACRs

for relevant years that were taken into consideration by the

respective DPCs held in the years 2005 and 2006 were never

communicated to him and, therefore, the same could not have

constituted the basis for his being found unfit for promotion

by the respective DPCs. Learned counsel for the respondents

referring to the records of DPC held in the year 2005, points

out that the DPC concerned had taken into consideration

ACRs of the petitioner for the last five years starting from 30th

June 1999 onwards, barring the period of two years or so

when the petitioner was under suspension.

3. Learned counsel for the petitioner contends that the

respondent‟s Standing Order dated 31st October 1972 required

that every entry which could adversely affect the promotional

prospect of an officer was to be communicated to the officer

concerned and a note in this respect was to be included in the

entry list. The said Standing Order also provided that before

such an entry was made, an opportunity had to be given to the

officer concerned to show cause, either verbally or in writing,

why it should not be done.

4. The relevant part of the aforesaid Standing Order reads

thus:

"1) In several cases adverse remarks contained in the ACRs of officers, have not been communicated to them and if at all communicated, it is observed that proper procedure has not been followed. The reporting should invariably give (at all lines) the necessary advices, guidance and assistance to the officer being reported upon to correct his faults and deficiencies before endorsing adverse remarks in the ACR. If this part of the reporting officers duty is properly performed, there should be no difficulty about recording adverse entries, because they would only refer to defects which had persisted despite the reporting officers efforts, to have then corrected. Accordingly in mentioning any faults/defects, the reporting officers should also give and indication of the efforts he had made, by way if guidance, admonition etc. to get the defects removed and the result of such efforts. In this connection reference is invited to para 159 of CRPF Manual Volume - I where in it has been laid down that every entry which may adversely affect the promotion of an officer, should be communicated to him and a

note to this effect must be included in the entry itself. It further says that before such an entry is made an opportunity must be given to the officer concerned to show cause either verbally or in writing, why it should not be done."

5. Learned counsel submits that in petitioner‟s case the

ACR entries for the relevant years, adversely affecting his

promotion were, contrary to the said Standing Order, never

communicated to him.

6. Learned counsel for the respondent contends that the

said Standing Order of 1972 was superseded by another

Standing Order No. 56/2001 dated 18th October 2001 whereby

the requirement of communicating the grading in the ACR was

done away with and only adverse grading, if any, recorded in

the ACR were required to be communicated to the officer

concerned.

7. The bench mark in terms of relevant DOPT OM requires

three „Very Good‟ entries in the ACRs for the last five years

that are to be taken into consideration for promotion by the

DPC. Learned counsel for the respondent with reference to the

ACRs for the relevant years, which were taken into

consideration by the DPC held in the year 2005, points out

that the grading in the ACR for the year 30th June 1999 to 31st

March 2000 was „Very Good‟ while the grading for the year

2000-01 was „Good‟ only. He concedes that this ACR for the

year 2000-01 was never communicated to the petitioner.

8. Learned counsel for the petitioner contends that non-

communication of the grading for the year 2000-01, inspite of

being so required in terms of the Standing Order of October

1972, deprived him of making any representation against the

grading during that year. He refers to a Division Bench

decision of this Court dated 15th July 2008 in WP (C) No.

15128/2004 involving similar facts wherein taking note of

Standing Order of October 1972, the petitioner therein was

granted relief by directing the respondent to communicate the

ACRs, which were below the bench mark during the relevant

years to enable him to make a representation against the same

and on such a representation being made, the same was

required to be accorded due consideration by the competent

authority and in case the reviewing authority found substance

in the representation, a fresh grading was required to be noted

in the ACRs.

9. Learned counsel for the petitioner pleads for the petition

being decided in terms of the decision dated 15th July 2008 of

the Division Bench of this Court in WP (C) 15128/2004 by

directing the respondent to communicate to the petitioner the

ACR for the year 2000-01, being below the bench mark, within

a specific time frame to enable him to represent against the

same and on his so doing, the competent authority to act in

the manner, as directed in the said WP (C) 15128/2004 to

grant the benefit of promotion to him from the due date.

10. As the facts and issue involved in the present case are

more or less similar to the one in WP (C) 15128/2004 and

thus covered by the Division Bench decision of this Court

therein, we direct that the ACR for the year 2000-01, being

below the bench mark shall be communicated to the petitioner

within one month from this date and it would be open to the

petitioner to submit his representation against the same

within another one month thereafter. A decision reviewing the

ACR for the year 2000-01 shall be taken by the competent

authority (which has to be higher than the one which recorded

the said ACR, in view of observation of the Supreme Court in

„Dev Dutt v. UOI & Ors' in Civil Appeal No. 7631/2002 decided

on 12.5.2008) within two months. In the event of a favourable

decision on the representation of the petitioner, a fresh

grading in the said ACR would be noted and as a consequence

the petitioner would become entitled to the benefit of

promotion from the date he would have otherwise been

promoted but for the below bench mark ACR for the year

2000-01 and his date of promotion being adjusted accordingly

but subject to the condition that the petitioner will not claim

any monetary benefits for the interregnum period when he was

not so promoted. Needless to say that in case of change of

date of his promotion, all other service benefits including

promotion shall be reckonable from such changed date of

promotion.

The petition is thus allowed in terms as aforesaid with no

orders as to costs.

(B.N.CHATURVEDI) JUDGE

(S.L.BHAYANA) JUDGE FEBRUARY 19, 2009 AG