P.K. Sarin vs Union Of India And Ors.
2009 Latest Caselaw 640 Del

                            Unreportable
*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP (C) No. 802 of 2006

%                                           Decided on : February 25, 2009

P.K. Sarin                                       . . . Appellant

                  through :                 Mr. Zakir Husain, Advocate

             VERSUS

Union of India & Ors.                            . . . Respondents

                  through :                 Ms. Meera Bhatia with
                                            Mr. Nitesh Kr. Singh and
                                            Mr. Rajat Soni, Advocates


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE SURESH KAIT

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.        (ORAL)

1. The petitioner is aggrieved by his non-promotion to the post of

Executive Engineer for which he was considered by the DPC for

vacancies pertaining to the years 1995-96 and 1996-97. In fact, the

petitioner was earlier placed under suspension in the year 1991

because of his involvement in a criminal case and remained under

suspension upto 27.1.2002. He was tried and acquitted by the

Special Judge, CBI, Tis Hazari vide orders dated 20.8.2002.

Thereafter, he had preferred a representation dated 21.8.2002 for

consequential benefits and in these circumstances orders dated

29.1.2003 were passed revoking the suspension of the petitioner.

Review DPC was thereafter held on 21.9.2004 wherein his case for

promotion to the post of Executive Engineer for the vacancies

pertaining to the year 1995-96 and 1996-97 was considered. During

the period of suspension, the ACRs of the petitioner were not written

and, therefore, ACRs for the period from 1984-1991 were taken into

consideration by the Review DPC. The DPC declared him unfit for

promotion because of the reason that as per the benchmark

prescribed for the aforesaid post, minimum three 'Good' ACRs

should be there to the credit of the candidate. However, in the case

of the petitioner, he had got only two ACRs as 'Good' and rest were

'Average/Fair'. The grievance of the petitioner is that those gradings

which were below 'Good', namely 'Average/Fair', should have been

communicated to the petitioner as because of these gradings, which

were below benchmark, the petitioner was denied promotion. It

could not be disputed by the learned counsel for the respondent that

the ACRs of the petitioner wherein he got the grading less than the

benchmark were not communicated to him.

2. This contention of the petitioner is well-founded and is now covered

by catena of judgments of the Apex Court. Such gradings had to be

communicated in view of recent judgments of the Supreme Court in

the case of Dev Dutt v. Union of India & Ors., (2008) 8 SCC 725 as

well as Abhijit Ghosh Dastidar v. Union of India (Civil Appeal

No.2667/2008, decided on 22.10.2008).

3. We had the occasion to consider all these judgments, including

another judgment of the Supreme Court in K.M. Mishra v. Central

Bank of India & Ors., (2008) 9 SCC 120 on which the respondents

placed reliance, in WP(C) No.12110/2006 entitled D.G. Employees

State Insurance v. R.S. Gautam & Ors. decided on 13.1.2009, where

we have opined that those ACRs which are below the benchmark are

required to be communicated to the concerned employee.

4. In these circumstances, this writ petition is allowed and the impugned

order of the Tribunal is set aside. We direct the respondents to

communicate the ACRs of the aforesaid years to the petitioner within

four weeks. The petitioner shall be entitled to make representation,

which shall be made within four weeks thereafter. On making this

representation, the same shall be considered and decided by the

respondents within two months thereafter. In case the entry/entries

for the aforesaid years are upgraded, the petitioner shall be

considered for promotion by the Review DPC.

Learned counsel for the petitioner also submits that the

petitioner was even allowed to cross his efficiency bar in the year

1991 itself on the basis of same ACRs and, thus, relies upon the

judgment of the Supreme Court in the case of Brij Nath Pandey v.

State of U.P. & Ors., 2000 (5) SLR 76, as per which he would have

become entitled for fresh consideration for promotion. It is made

clear that while holding Review DPC, this fact shall also be taken into

consideration by the Review DPC.

5. In the facts and circumstances of this case, there shall be no orders as

to costs.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE

February 25, 2009 nsk