Delhi High Court

Dr. Indira Sarnath vs Union Of India & Ors on 9 January, 2009

Author: Vipin Sanghi

*                   HIGH COURT OF DELHI : NEW DELHI

+                         W.P. (C) No. 4123/2007


                    Judgment reserved on: 13.11.2007
%                   Judgment delivered on: 09.01.2009

      DR. INDIRA SARNATH                          ..... Petitioner
                                Through:    Mr. P.V. Kapur, Sr. Advocate
                                            with Ms. Radha Rangaswami,
                                            Ms. Prachi Vasisht and Mr.
                                            Amit Sibal, Advocates.

                                versus

      UNION OF INDIA & ORS                        . ..... Respondent
                                Through:     Mr. V.S.R. Krishna, Advocate.


CORAM:
HON'BLE MR.JUSTICE A.K.SIKRI
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported              Yes
   in the Digest?

VIPIN SANGHI, J.

1. The present writ petition is directed against the order dated

22.5.2007 passed by the Central Administrative Tribunal, Principal

Bench, New Delhi (for short „The Tribunal‟) whereby the petitioner‟s

Original Application bearing OA No.2612/2006 and the various

miscellaneous applications filed by her have been disposed off by the

Tribunal. The Tribunal has dismissed the aforesaid O.A filed by the

petitioner. The petitioner had preferred the aforesaid OA to seek the

quashing and setting aside of two orders passed by the respondents,

both dated 6.12.2006 promoting, inter alia, respondent no.6 as Chief

Medical Directors (CMD, for short) in Higher Administrative Grade (HAG,

for short), and posting respondent nos.3 to 5 and 7 to 9 as CMD in

Senior Administrative Grade (SAG, for short), and for a direction to the

respondent authorities to promote the petitioner as CMD(HAG) with

consequential benefits.

2. The petitioner was recruited to Indian Railway Medical

Service(IRMS, for short) in 1972. She was promoted as Assistant

Medical Officer (AMO), Additional Divisional Medical Officer (ADMO) and

then as Divisional Medical Officer (DMO). She was further promoted to

Senior Administrative Grade (SAG) in the year 2002 w.e.f. 20.10.2000.

The next high grade is CMD (HAG). She was considered for promotion

as CMD (HAG) and also for the various down graded posts of CMD in

SAG but she has been denied promotion to CMD(HAG) and posting as

CMD (SAG) by the respondent authorities. Respondent no.6 has been

promoted as CMD (HAG) whereas the other private respondents have

been posted as CMD (SAG).

3. The case of the petitioner before the Tribunal was that in the year

2002 when she was considered for promotion to the post of SAG, her

record upto the year 2000 was considered. She submits that she

definitely had a grading of "Very Good". That is why she was promoted

to SAG. However since the year 2001, after her promotion to the post

of SAG she had been subjected to frequent transfers. Her ACRs were

written by several officers. There was no communication from the

Railway Board or any other authority indicating that there had been a

fall in her grading of ACRs which would disentitle her for future

promotion. As per the brochure of the Railway Board pertaining to

confidential reports, and the writing of ACRs, the fact of fall in the

grading requires to be communicated. The fact that she was never

communicated any adverse remarks in her confidential reports goes to

show that she was fit for promotion. If any grading is lower than the

minimum required for promotion i.e the benchmark for promotion, the

same has to be considered as adverse and has to be communicated to

the concerned officer. Since no adverse remarks has been

communicated, if she has been graded "Good" or below, the same has

to be ignored on account of its non-communication. Her further case

was that her immediate superior who wrote her ACRs is the DRM, who

is an officer in the same grade as the Petitioner. The DRM is a non

Medical Officer. It is not possible for the DRM to assess the

performance of a Medical Officer. She also apprehended that on

account of her being a tough task master, she might have incurred the

displeasure of her colleagues and subordinates. For this reason her

ACRs might not have been properly recorded on account of the biased

attitude amongst her superiors during the period 2003-2005. She

further submitted that her juniors, who were due to retire within a short

span of time were posted as CMD(SAG). The post of CMD was down

graded to SAG from HAG to accommodate such persons. The petitioner

also submitted that the down grading of the various posts of CMD (HAG)

to CMD(SAG) was improper. It was contended that the respondent

authorities while down grading the said posts of CMD(HAG) had failed to

establish expediency for such down grading in public interest, and had

not consulted DOPT before such down grading. Her further grievance

was that the Selection Committee was not constituted in accordance

with the Resolution dated 28.3.2000 of the Railway Board, in asmuch

as the said Resolution required that a functional member should be a

member of the Selection Committee, especially when the Chairman,

Railway Board is also a functional member. Her grievance was that the

Railway Board does not consist of any member from IRMS and the

Chairman, Railway Board is also not from IRMS. Consequently the

Selection Committee did not consist of a functional member dealing

with officers of IRMS. As there is no member (Medical) in the Railway

Board, the head of the IRMS i.e. Director General, Railway Health

Services (DG, RHS) should have been associated with the Selection

Committee. It was contended that the process of selection and

appointment as CMD was not transparent. She further contended that

the method of writing ACRs for the petitioner was wrong, as during the

five years from 2002-2006, she had served in five different assignments

and her ACRs were written by different officers from various divisions in

different zones. She complained that there was no Central Monitoring

Authority to assess her work in so far as it involved varied

responsibilities in different situations. The procedure of assessment of

ACRs by the Selection Committee was also not transparent according to

the petitioner. She sought the production of the ACRs of the petitioner

as well as respondent No. 3 to 9 before the Tribunal for its own perusal

along with the records of the Selection Committee and its

recommendations for promotion to the post of CMD (HAG) and posting

as CMD (SAG).

4. The stand of the official respondents before the Tribunal was that

the Competent Authority had assessed the performance of all eligible

officers including the petitioner at the time of preparation of the panel

for HAG of IRMS officers. However, some of the officers including the

petitioner were not recommended for promotion to HAG as they did not

meet the benchmark of VG+ as stipulated in the circular dated

03.06.2002. The officers who were recommended for promotion to HAG

were promoted vide Railway Board‟s letter dated 6.12.2006. No officer

junior to the petitioner had been promoted to HAG vide the first order

dated 6.12.2006. So far as the other order dated 6.12.2006 relating to

posting of SAG officers of IRMS as CMD in SAG is concerned, the same

does not amount to a promotion. It is further stated that the down

grading of certain HAG posts of CMD to SAG was done by the

Competent Authority to meet administrative exigencies and in public

interest. As and when officers empanelled in HAG become available,

these posts would be upgraded to HAG. It was further stated that even

for posting against the down graded post of CMD, the performance of

the officers including that of the petitioner was taken into account.

5. The official respondents further stated that there are nine

organized Grade `A‟ services in the Indian Railways, including IRMS.

There are various other services/departments such as Security, Legal,

Printing & Stationery etc. There are seven members of Railway Board

headed by the Chairman. Their pay is Rs.26,000/- fixed. Member (Staff)

an Ex-Officio Secretary to Government of India has control over the

following services/departments: Personnel, Medical, Security, Law,

Vigilance, Official Language etc. It was further disclosed that there are

two posts of Director General/Railway Health Services and Director

General/Railway Protection Force in the Railway Board. Their pay is

also Rs.26,000/- fixed like that of the members of the Railway Board,

but they are neither members of the Railway Board nor do they have

the status of member and Ex-Officio Secretary to Government of India.

These Director Generals report to Member (Staff). The Departmental

Promotion Committee(DPC) for promotion to, inter alia, Senior

Administrative Grade (Rs.18,4000-22,400) consists of all the members

of the Railway Board as per the letter dated 26.9.1989, amended on

3.6.2002. According to the respondent the letter dated 26.9.1989 was

an adoption of DOPT OM dated 10.4.1989 relied upon by the petitioner.

For consideration for promotion of the IRMS officers, there is no

member from Medical Department on the DPC. The petitioner was

considered for promotion to SAG by the DPC, namely, the members of

the Railway Board and was promoted as such. The DPC for promotion

to HAG (Rs.22,400-24,500) comprises of members as laid down in the

Resolution dated 28.3.2000 i.e. the Chairman Railway Board,

Secretary/DOPT and one member of Railway Board. In the case of

promotion to HAG of IRMS, the 3rd member is member (Staff). The

Resolution dated 28.3.2000 was framed and issued with the approval of

DOPT. The respondent, therefore, submitted that the contention of the

petitioner that the DPC for promotion to HAG from amongst the IRMS

officers had not been constituted as per DOPTs guideline was wrong.

The DG, RHS not being a member of the Railway Board, he cannot be

made the functional member in the DPC which considers the promotion

of IRMS officers to HAG. The respondents further submitted that the

letter dated 3.6.2002 does not state that the DPC can go outside the

ACRs and make its own assessment. What has been stated is that the

DPC is not merely guided by the grades recorded in the ACRs but

makes its own assessment on the basis of the various entries in the

ACRs including pertaining to several parameters and attributes. The

respondent relied upon the decision of the Supreme Court in Dalpat

Abasaheb Solunke V. Dr. B.S. Mahajan etc., AIR 1990 Supreme

Court 434 wherein the Supreme Court had held that it is not the

function of the Court to hear appeals against the decision of the

Selection Committees and to scrutinize the relative merit of the

candidates. Whether a candidate is fit for a particular post or not has to

be decided by the duly constituted Selection Committee which has the

expertise in the subject. The Court has no such expertise. The decision

of the Selection Committee can be interfered with only on limited

grounds, such as illegality or patent material irregularity in the

constitution of the Committee or its procedure violating the selection

norms etc.

6. Based on the procedure laid down in the aforesaid circular dated

3.6.2002 it was submitted by the respondent authorities that the DPC

was not merely guided by the grades recorded in the ACRs but it had to

make it own assessment on the basis of various entries in the ACRs

including several parameters and attributes.

7. The respondent authorities submitted that the Resolution dated

28.3.2000 and Circular dated 3.6.2002 were founded upon O.M dated

10.4.1989 of DOPT, and in conformity with it. The respondents

produced the seniority list of SAG officers dated 12.4.2002 to dispute

the claim of the petitioner that Dr. Krishan Kumar, respondent no.6 is

junior to the petitioner. Dr. Krishan Kumar was placed at Sl. No.55

(having being promoted to SAG w.e.f. 28.07.2000), as opposed to the

petitioner‟s placement at Sl.No.62 (having been promoted to SAG w.e.f.

20.10.2000) in the said seniority list. The respondent authorities

defended the system of writing the ACR. The same had been evolved

over a period of time and had stood the test of time. The 3-tier system

of recording ACRs eliminates the element of bias. It was submitted that

even though the DRM is in the same grade as the petitioner i.e. SAG, he

had been authorized to initiate the ACR because he is the head of the

Department/organization at the Divisional Level and the petitioner was

reporting to him. The Medical Expert incorporates his views in the ACR

of the SAG officers of IRMS as the Reviewing Authority is the CMD. The

respondents contended that the genesis of the Resolution dated

28.3.2000 and the Circular dated 3.6.2002 is the DOPT circular dated

10.4.1989 and they are in conformity with it. If the Circular dated

3.6.2002 is bad in law as contended by the petitioner, then her

promotion to SAG in terms of the said Circular is also unsustainable.

8. In her rejoinder the petitioner submitted that since she had been

promoted to SAG in the year 2002, she would have had the grading

"Very Good" in terms of the circular dated 3.6.2002. Thus if in the year

2006, the DPC met to consider her case for promotion to HAG, the DPC

would have taken into consideration only three additional ACRs for the

years 2003-04, 2004-05 and 2005-06. She states that in the two earlier

years i.e.2002-2003 and 2001-2002 she must have had "Very Good"

since she already stood promoted to SAG on that basis. During the

years 2003-04 and 2004-05, she had done outstanding work which had

been reported to the DG, RHS. Thus even with a "Good" or "Very

Good" ACR for the year 2005-06, the total would have come to two

"Very Good", two " Outstanding" and one "Good" or "Very Good" thus

making the final grading of "Very Good +".

9. We may at this stage take note of a few developments which took

place during the pendency of the aforesaid OA before the Tribunal and

the orders passed therein. The petitioner had sought interim relief

while filing the Original Application before the Tribunal on 13.12.2006.

On 14.12.2006, the Tribunal directed that the prayer for interim relief

is kept open till the respondents appear. In case of future promotion,

the respondents were not precluded from considering the applicant‟s

case if she was otherwise eligible.

10. Thereafter the petitioner/applicant filed another MA.

No.2330/2006 on 18.12.2006. The prayer sought in this application was

to "clarify the order dated 14.12.2006 to state that the respondent no.

1 and 2 to consider the applicant‟s case for future vacancy of

CMD(HAG) pending petitions..........." This MA No.2330/06 was taken

up by the Tribunal and on 20.12.2006 the order passed by the Tribunal

read:

"MA 2300/2006

No order need be recorded in the M.A.

Accordingly, it is disposed of. List the O.A on 5.1.2007. Issue dasti."

11. The petitioner challenged the order dated 20.12.2006 of the

Tribunal by filing W.P(C) No.210/2007 before this Court. The said

petition was taken up for consideration on 10.1.2007. This Court, inter

alia, passed the following order:

"In so far as the merit of the matter is concerned, the learned counsel for respondent no. 1 and 2, on instructions of the Instructing Officer, states that petitioner‟s case shall be considered for two vacancies said to arise in January 2007.

List on 8.2.2007. Dasti."

W.P(C)No.210/2007 was disposed of by this Court on 13.2.2007.

In the said order, this Court, inter alia, directed "needless to say that a

DPC shall be constituted by the respondent according to the DOPT

Circular dated 10th April 1989 bearing O.M.No.22011/5/86/Estt(D) and

the concerned Resolution of the Railway Board dated 28.3.2000. In this

view of the matter, no further orders are called for and accordingly, the

writ petition stands disposed of along with CM 365/2007 and

CM366/2007.

The fact that the petitioner would have less than one year‟s

service left before her retirement at the time of consideration of her

candidature shall not come in the way of promotion, in case she is

found fit for the post as the lis was pending prior to this period

becoming less than one year."

12. One of the grievances raised by the petitioner before the Tribunal

was that despite the aforesaid orders passed by this Court, the

respondent authorities had failed to consider the case of the petitioner

for promotion to CMD (HAG) in respect of the two vacancies which

arose in January 2007. To meet the aforesaid submission of the

petitioner, the respondent authorities submitted that the information

given to the Tribunal and to the High Court initially, that two vacancies

of CMD(HAG) were to arise in January 2007 was factually in-correct.

This point was clarified by the official respondents in their pleadings

before the High Court itself as follows:-

"10. That on 10.01.2007, on the instructions of the instructing officer, II. Counsel for Respondent Nos.1 & 2 had submitted before this Hon‟ble Court that the Petitioner‟s case shall be considered for two vacancies said to arise in January, 2007. The factual position, as can be seen from the submission made above, is that the Petitioner already stands considered both for promotion to HA Grade as CMD against vacancies arising up to 30.06.2007 as well as for the post of CMD by temporarily

operating the HA Grade posts in SA Grade. The submission made before this Hon‟be Court was without knowledge of the factual position obtaining in the relevant records. Therefore, the deponent tenders unconditional apologies for the same."

13. The respondents further clarified that the Selection

Committee/DPC for consideration of cases of IRMS officers to the posts

of CMD (HAG) and for posting as CMD(SAG) was held on 10.8.2006 and

not on 21.8.2006, as contended by the petitioner.

14. The Tribunal rejected the claim of the petitioner that her seniority

has to be counted on the basis of the date of her entry into service. A

person substantively promoted earlier in the higher grade shall

necessarily count his/her seniority in that higher grade ahead of those

who were promoted later to that higher grade. The claim of the

petitioner that she had been superseded by respondent No.6 Dr.

Krishan Kumar was rejected. The Tribunal called for the record of the

DPC meeting held on 10.8.2006 and perused the same. The Tribunal

found that names of 10 officers were considered by the DPC for filling

up ten vacancies in order of seniority as per SAG seniority list dated

12.4.2002. The petitioner made the cut for being considered for

promotion in spite of being ranked at serial no.17 out of 20 persons in

the zone of consideration, since seven of her seniors were not

considered, as their residual service was less than one year as on

1.7.2006. The petitioner was at serial no.10. Out of the ten officers

who made the cut, only six were finally found "fit" for promotion to the

post of CMD (HAG) on the basis of assessment of their performance and

upon being graded VG+ by the Selection Committee. The petitioner

was one of the four persons who were assessed as "unfit" by the

Selection Committee. The Tribunal further observed that as far as the

petitioner is concerned, the assessment of her performance/fitness in

the years 2001-2002 to 2005-2006 by the DPC is based purely on the

grading recorded in the ACRs for that period. In none of the years, the

petitioner had been recorded as „unfit‟ in the ACRs. The primary reason

for the petitioner being „unfit‟ on the whole is that her overall grading

has not been found to be "Very Good+" as per the stringent criteria of

selection for promotion to HAG prescribed in the Railway Board‟s

Circular dated 3.6.2002. The Tribunal held that the description in para

3.11 of the Brochure on confidential reports, regarding communication

of the remarks „not fit‟ if the officer has been graded as „Good" is with

reference to the entries made in the ACRs and has nothing to do with

the proceedings of the DPC. The Tribunal also observed that in respect

of the petitioner‟s ACRs, the same had been countersigned by the

DG(RHS) before their submission to the Accepting Authority.

15. Before us the submissions of the petitioner are that the circular

dated 03.06.2002 issued by the Railway Board laying down the

procedure for promotion to HAG from SAG is bad as it is in contradiction

with Government of India OM dated 08.02.2002. It is further contended

that the circular dated 03.06.2002, which sets out "VG+" as the

benchmark is at variance with OM dated 08.02.2002. "VG+" is not

defined anywhere. With an undefined "VG+" even five VGs can make

the ACR as "VG+". There could be other combinations of Good, Very

Good and Excellent, which could result in the grading of "VG+". The

combinations without any guideline makes it arbitrary. It is contended

that the only permissible benchmark is "VG" as set out in the OM dated

08.02.2002. It is also argued that the OM dated 10.04.1989 prescribes

that the DPC shall consist of, inter alia, a technical member and a

person familiar with the work of the officers being considered. The

resolution dated 28.03.2000 does not fulfill either of these

requirements. The resolution dated 28.03.2000 is not in conformity

with Government of India OM dated 10.04.1989. It is argued that

member (staff) cannot be considered as a technical member since he

does not belong to the medical field. He has not seen the working of

the IRMS officers except those who may have attended on him

professionally. It is also argued that the respondents have not

complied with the order dated 13.02.2007 passed by the Division Bench

which directed the consideration of the petitioner‟s case by the DPC in

accordance with OM dated 10.04.1989. It is also submitted that the

orders dated 10.01.2007 and 13.02.2007 passed by the Division Bench,

as aforesaid, necessitated the consideration of the petitioner‟s case for

promotion to HAG in respect of vacancies arising in January 2007. In

spite of the said orders the respondents authorities have not held the

DPC and they are in contempt of the orders of the Court. It is argued

that DRM could not have adjudged the fitness of the petitioner, as the

DRM himself is also in the same grade. In support of this contention

reliance is placed on SBI v. Kashinath Kher & Ors. (1996) 8 SCC 762.

The petitioner also questions the down grading of the various posts of

CMD (HAG) to CMD (SAG). The petitioner has also made a grievance

that her representation and other materials were not placed before the

DPC; that she had repeatedly been transferred five times in four years

while working in SAG but this fact was not brought to the notice of the

DPC; that her DRM has failed to write a deserving report for the

petitioner during the period 2003-2005. It is stated that there is

violation of the wednesbury principle in the proceedings of the DPC.

The petitioner also raises an issue of biased attitude of the respondent

officials. It is also argued that even the Tribunal has recorded that so

far as the petitioner‟s case is concerned, the DPC was merely guided by

the grading given in the ACRs and that it has not given its own grading

in terms of paras 10 & 11 of the circular dated 03.06.2002 of the

Railway Board. Despite the Tribunal finding the aforesaid lacuna, it did

not set aside the consideration of the DPC.

16. Respondent authorities have contended that the impugned order

is detailed and reasoned, which considers all the contentions of the

petitioner at length. The respondents have defended the placing of

respondent No.6 as senior to the petitioner in the seniority list. It is

argued that the job profile of HAG posts includes discharge of

administrative functions apart from medical/clinical functions and hence

members (staff) is competent to be the part of the DPC as the

functional member. The promotions earned by the petitioner to junior

administrative grade and above have been considered by the DPC in

which no medical officer has been a member. So far as the initiation of

the petitioner‟s ACR by DRM is concerned, it is submitted that the ACRs

are written by the immediate reporting officer. The petitioner was

reporting in the normal hierarchy to the DRM. It is submitted that in the

railways there are instances of officers working in the same grade and

one of them acting as the Coordinating Head of Department (CHOD).

The Additional Divisional Railway Managers, who are also in SAG report

to the DRM, a SAG officer. Therefore, there is nothing wrong in the

system prevailing. The ACRs are reviewed and accepted by officers at

higher level.

17. Having considered the rival submissions of the parties and

perused the records produced by the respondents, including the

consideration of the petitioner‟s case by the DPC held on 10.8.2006, we

are not inclined to interfere with the impugned decision of the Tribunal

since the same appears to be correct and we find no merit in this writ

petition filed by the petitioner.

18. It appears that the petitioner, to repel the reliance placed by the

respondent authorities on the Resolution dated 28.3.2000 and the

Circular dated 3.6.2002, contended that these resolutions/circulars

were incompetent, being contrary to the DOPT O.M dated 10.4.1989,

but the petitioner did not seek to challenge the said resolution and

circular dated 28.3.2000 and 3.6.2002 respectively before the Tribunal

even though she amended her O.A.

19. The Resolution dated 28.3.2000 of the Railway Board bearing

No.E(O)III-93/PM 50 and the circular dated 3.6.2002 also issued by the

Railway Board, both deal with the procedure for promotion to Group `A‟

Railway Services under the Ministry of Railways. The Resolution dated

28.3.2000 purports to lay down the principles and procedure for making

appointments to posts in the scale Rs.22,400-24,500 i.e. the Higher

Administrative Grade in various Group `A‟ Railway Services under the

Ministry of Railway. The method of selection laid down by this

Resolution, inter alia, reads:-

"2. Method.

Service-wise panels for appointment for the posts in scale Rs.22,400-24,500/- in the Zonal Railways/Production Units/Railway Board/RDSO etc. shall be prepared by Selection Committee consisting of Chairman, Railway Board as Chairman, Secretary to the Government of India in the Department of Personnel and Training and functional Member-in charge, Railway Board (or Member, Staff , Railway Board when Chairman, Railway Board is also the functional Member), as Members. The Selection Committee may also recommend the specific type/types of assignments for which a particular officer mentioned in the panel may be considered suitable. The panel, as prepared by the Selection Committee and duly approved by the Minister of Railways, shall be submitted to the Appointments Committee of the Cabinet and after approval specific postings will be ordered by the Ministry of Railways."

The eligibility criteria for appointment to HAG as stated in this

Resolution reads as follows:-

"3. Eligibility Criteria

(a) Officers to be considered for empanelment should have worked in Senior Administrative Grade for a minimum period of five years on regular basis and should be less

than 59 years of age on 1st July of the year for which the panel is made as referred to in Para 4 of this Resolution.

(b) Only such of the empanelled officers would be appointed to these posts who had a year or more of service left on the date of occurrence of vacancy falling in their turn."

20. The letter dated 3.6.2002 states that except for consideration for

promotion to the HAG, for which provisions of Resolution dated

28.3.2000 shall apply, for other posts in the Administrative Grade the

Full Board shall function as the DPC. Therefore for HAG, the DPC

continued to consist of "Chairman, Railway Board as Chairman,

Secretary to the Government of India in the Department of Personnel

and Training and functional Member-in charge, Railway Board (or

Member, Staff , Railway Board when Chairman, Railway Board is also

the functional Member), as Members."

21. The communication dated 3.6.2002 further states that

proceedings of the DPC shall be legally valid and can be acted upon

"notwithstanding, the absence of any of its members other than the

Chairman". It further states that "each time DPC meets, it can decide

its own method and procedure for objective assessment of the

suitability of the candidates". The said guidelines contained in the

communication dated 3.6.2002 have been issued in order to ensure

greater selectivity and for having uniform procedure. All promotions to

administrative grades are by selection only. Consequently, mere

seniority does not entitle a candidate to be promoted to a position in

the administrative grade.

Paragraphs 4, 6, 9, 10, 11,12, 13, 14 and 15 of the circular dated

3.6.2002 are relevant and the same read as follows:-

"4. While merit has to be recognized and rewarded, advancement in an officer‟s career should not be regarded as a matter of course, but should be earned by dint of hard work, good conduct and result-oriented performance and potential for shouldering higher responsibilities, as reflected in the Annual Confidential Reports, and it should be based on a strict and rigorous selection process."

"6. Confidential Reports are the basic inputs on the basis of which assessment is to be made by the DPC. The DPC will assess the suitability of the officers for promotion on the basis of their service records and with particular reference to the five preceding years."

"9. The DPC would not be guided merely by the grading, if any, recorded in the ACRs but should make its own assessment on the basis of the entries in the ACRs, including the various parameters and attributes. The Committee shall also take into account whether the officer has been awarded any major or minor penalty or whether any displeasure of any superior officer or authority has been conveyed to hi, as reflected in the ACRs. The DPC should also have regard to the remarks on the columns of integrity.

10. The grading in the ACR represent the assessment of the superior officers during a particular year‟s performance in general. The overall grading to be assigned by the DPC shall encompass several years‟ performance and not merely relate with the entries/assessment recorded in the ACRs. It shall be borne in mind that the grading by DPC and in the ACR represent assessment of the officer by two distinct authorities for two different purposes.

11. DPC shall, considering the various factors, assign an overall grading for each of the officer. The grading shall be one among, „Outstanding‟, „Very Good+‟, „Very Good‟, „Good‟ and „Unfit‟.

12. The benchmark for promotion to various grades shall be as under:-

            (a) From Senior Scale to JAG/SG :    Good
            (b)SAG                        : Very Good
            (c)HAG                        : Very Good+

Stringent criteria of selection shall apply for promotion to HAG.

13. While any performance below the benchmarks shall not be termed as adverse in respect of an officer, it only performance above average and is really noteworthy, entitle an officer recognition and suitable rewards in the matter of promotions. For any public servant and more so in higher positions of responsibility, it is expected that he will discharge his duties and responsibilities with best of his capabilities at all times and is not only that in order to achieve some gains in the matter of promotion etc., he would regulate the quality of his performance to that level.

14. DPC shall, for promotion to administrative grades, grade officers as "fit" or "unfit" only with reference to the benchmark mentioned above. Only those who are graded as "fit" shall be included in the select panel prepared by the DPC in order of their inter-se seniority in the feeder grade. There shall be no supersession in the matter of "selection" (merit) promotion among those who are found "fit" by the DPC in terms of the prescribed benchmark.

15. The recommendations of the DPC are advisory in nature and should be duly approved by the appointing authority and where the posts fall within the purview of Appointments Committee of the Cabinet (ACC), approval of ACC shall also be obtained."

22. We may note that though it was the contention of the petitioner

that the Resolution and Circular dated 28.3.2000 and 3.6.2002

respectively were contrary to the DOPT OM dated 10.4.1989, in the

present writ petition, the petitioner has failed to even place before the

Court the said OM dated 10.4.1989 and to state as to why the aforesaid

Resolution and Circular are contrary to the said OM of the DOPT dated

10.4.1989. What has been placed on record is Chapter IV dealing with

the promotions from Swamy‟s Master Manual for Drawing and

Disbursing officers and heads of offices, Part II Estt. In relation to the

composition of DPC, Swamy‟s Master Manual, states as follows:-

"1. Composition of DPC - Composition of the DPC is generally indicated in the relevant Recruitment Rules for each category. This may be followed by detailed instructions issued by the departmental authorities. For example, Recruitment Rules may mention "a departmental officer" as a second member. The department may specify the actual grade of such departmental officer. Besides the Chairman who is normally the Head of Office (or other officer at a senior level as prescribed by the department), and the second member from the department who should be familiar with the work of the departmental candidates concerned, an officer of appropriate level from another department is to be associated as the third member. In the case of technical posts, it is also necessary that the third member from other department has the requisite technical competence. For recruitment to more than 10 vacancies in Group C and Group D categories, it shall be mandatory to have one member belonging to SC/ST and one member belonging to minority community in DPC. Where the vacancies are less than 10 also, no effect should be spared in finding an SC/ST officer and a Minority Community Officer for inclusion in DPC/Selection Committee."

23. From the aforesaid resolution and circular, and the explanation

furnished by the respondent authorities it is clear that there is no merit

in the grievance of the petitioner that there is insufficient

representation in the DPC of medical services to assess the merit and

suitability of the officers of IRMS. Like the IRMS there are 8 other

organized Group „A‟ services and it is not possible and necessary that

the Railway Board should consist of members hailing from each of

these Group „A‟ services. In fact, there is no member on the Railway

Board from IRMS. However, that does not mean that the officers of

IRMS are not duly represented in the DPC while considering their cases

of promotion to HAG. The member (staff) is in control of, inter alia, the

officers of the IRMS. He is a member of the DPC which considers cases

of candidates of IRMS for promotion to HAG. Pertinently all the

confidential reports sent to the DPC of the officers of IRMS are

countersigned by the D.G.(RHS). The D.G.(RHS) and D.G. (RPF) are not

members of the Railway Board and they do not have the status of

member and ex officio Secretary to Government of India. Therefore,

the grievance of the petitioner that the D.G. (RHS) should be a member

of the DPC is of no avail. Pertinently the petitioner had no grievance

with regard to the constitution of the DPC for consideration of her case

for promotion to SAG, even though the said DPC, which consisted of all

the members of the Railway Board, had no representative of IRMS or

any other member who could be said to be directly conversant with the

working of the petitioner apart from the Member (Staff). Even in the

said DPC which considered the petitioner‟s case for promotion to SAG, it

was the Member (Staff) who was functional member. It, therefore, does

not lie in the mouth of the petitioner to question the competence of the

DPC to assess the merit of the candidates for promotion to HAG from

amongst IRMS officers merely because she has not been found fit for

promotion to HAG. The circular dated 3.6.2002 specifically states that

the proceedings of the DPC shall be legally valid acted upon

"notwithstanding the absence of any of its members other than the

Chairman." Therefore, even if we were to assume that the grievance of

the petitioner with regard to constitution of the DPC has some merit,

the aforesaid prescription in the circular dated 3.6.2002 renders the

grievance unsustainable. Pertinently, while questioning the

competence of the DPC to assess her merit for consideration for

promotion to HAG, the petitioner apart from contending that the D.G.

(RHS) should be a member of the DPC (which we have already rejected)

does not state as to who else from amongst the members of the

Railway Board should have been a part of DPC. The reliance placed by

the petitioner on Chapter IV dealing with promotions from Swamy‟s

Master Manual does not advance the case of the petitioner. Even if one

were to accept that the aforesaid extract from Swamy‟s Master Manual

regarding composition of DPC is founded upon the OM dated 10.4.1989,

one has to bear in mind that the said OM is of general application to all

the Central Ministries, whereas the aforesaid resolution and circular had

been issued by the Railway Board specifically for application to cases of

promotion to the administrative grades within the railways. The

respondents have also stated that the aforesaid resolution and circular

have been issued with concurrence of the DOPT. We find no reason to

disbelieve the said assertion of the respondent authorities, particularly,

since the petitioner has not produced anything to the contrary. It is

also not the petitioner‟s case that the composition of the DPC and the

procedure adopted by it while considering the case of, inter alia, the

petitioner for promotion to HAG in its meeting held on 10.8.2006 was

different from the composition of the DPC, or the procedure adopted by

it, in the earlier years i.e. from 2002-2006.

24. So far as the petitioner‟s claim for seniority over respondent No.5

and her supersession by respondent No.6 is concerned, firstly we may

note that the petitioner in spite of amending the original application did

not seek the relief of quashing the seniority list circulated on

12.04.2002. Neither did the petitioner prefer a separate original

application claiming the said relief. Secondly, the promotion to the HAG

being merit based from amongst the officers falling in the zone of

consideration, even if one were to accept that the petitioner was senior

to Dr. Krishan Kumar in SAG, the same would be of little relevance, as

he has been found to meet the benchmark of "VG+" by the DPC and,

therefore, `fit‟ for promotion to HAG whereas the petitioner has been

found to be `unfit‟ for promotion.

25. The contention of the petitioner that in the ACRs the only

gradings that can be awarded are „Excellent‟, „Very Good‟, „Good‟ and

„Average‟ and there is no such grading as "VG+" and, therefore, the

prescription of the benchmark of "VG+" in the circular dated

03.06.2002 issued by the Railway Board as the benchmark for

promotion to HAG from SAG is bad, also cannot be acceptable.

Pertinently, the DPC while examining the relevant ACRs is not guided

merely by the grading recorded in the ACR, but it has to make its own

assessment on the basis of the entries made in the ACR, including the

various parameters and attributes. The final grading given in the ACR

as Excellent, Very Good, Good etc. is, therefore, of little significance

and there is no inconsistency in the procedure devised under the

circular dated 03.06.2002 laying down the procedure for promotion to

HAG in the railway services. So far as the observation of the Tribunal in

the impugned order that the assessment of the petitioner‟s

performance/fitness, for the years 2001-02 to 2005-06 by the DPC is

based purely on the grading recorded in the ACRs for that period is

concerned, a perusal of the proceedings of the DPC meeting held on

10.08.2006 shows that the DPC was aware of the fact that it should not

be guided merely by the overall grading, if any, that may be recorded

with the ACRs, but should make its own assessment on the basis of the

entries made in the ACRs because sometimes the overall grading made

in the ACR may be inconsistent with the gradings under various

parameters and attributes. The DPC was aware of the benchmark for

promotion to HAG as being "VG+". The DPC recorded that it did not

consider, inter alia, the petitioner as suitable for empanelment to the

HAG grade on the basis of her performance and accordingly did not

recommend her empanelment in the HAG grade. We do not find any

material on the record produced by us to show that the DPC was guided

merely by the overall grading given to the candidates in the ACRs which

formed the basis of the DPCs assessment. From the file produced by

the respondent authorities it is seen shows that the Chairman, Railway

Board address a communication dated 22.05.1996 to the Secretary,

Department of Personnel, Government of India seeking to make

modification in the procedure laid down by the DOPT for promotion

from SAG to the Additional Secretary grade. The said communication

reads as follows: -

"Sub: Promotion policy for grade Rs.7300-7600/- in Railway Services.

As per procedure laid down by DOP benchmark for promotion from SA grade to Additional Secretary grade (Rs.7300-7600) is „Very Good‟. For this purpose, Selection Committee is to grade officers who are considered suitable for promotion as „Very Good‟ or „Outstanding‟. Officers graded „Outstanding‟ are placed above those „Very Good‟ in the Select panel.

2. Ministry of Railways have however decided with the concurrence of Secretary, DOP that minimum benchmark for promotion from SAG to AS grade in Railway services should be „Very Good‟ and for this purpose an officer should have earned minimum 3 Very Good and 2 Outstanding reports during the last 5 years. A copy of relevant guidelines is enclosed. This procedure has been adopted in Railways for the last several years and panels of grade Rs.7300-7600/- framed in various Railways services on this basis have all along been approved by ACC.

3. Board have reviewed the above procedure in their meeting on 17.5.96 and decided that the stipulation that during the last 5 years the officer should have earned at least 3 „Very Good‟ and 2 „Outstanding‟ reports is too restrictive and does not allow for aberrations in assessment during a particular year. Therefore, so long an officer‟s aggregate performance equals 3 „Very Good‟ and 2 „Outstanding‟ or 22 points (assigning 5 points to „Outstanding‟, 4 points to „Very Good‟, 3 points to „Good‟ and 2 points to „Average‟) over the last 5 years, he may be considered for promotion to grade Rs.7300-7600/- provided he is declared fit for promotion during the last assessment year. Cases of officers who are marginally short of requisite performance benchmark but equal to a performance count of 21 points may however be treated as falling in the „grey area‟ and fitness of such officers for promotion to grade Rs.7300-7600/- may be considered keeping in view their overall performance and the nature of assignments held by them.

4. As it is proposed to adopt the above policy from the vacancy year 1996-97, the Department of Personnel &

Training are requested to communicate their concurrence to the proposed policy early."

26. The said proposal of the Railway Board was approved by the

Secretary, Department of Personnel and Training and the same was

communicated to the Railway Board vide communication dated

26.08.1996, which is also to be found on record. Guidelines in selection

to the grade Rs.7300 - 7600 in Group-A railway services were jointly

issued by the Secretary, Department of Personnel, Government of India

and the Chairman, Railway Board, which reads as follows:

"Sub: Guidelines for selection to Grade Rs.7300- 7600/- in Group „A‟ Railway Services.

The Selection Committee (Chairman, Railway Board, Secretary, DOP and functional Member of Railway Board) met on 02.02.94 to consider claims of SA Grade officers of IRSE and IRSSE for empanelment to grade Rs.7300- 7600/-.

2. The Committee noted that the guidelines of DOP in the matter of selection stipulate that DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs, but should make its own assessment on the basis of entries in the CRs, as the overall grading in CRs may be inconsistent with the grading under various parameters or attributes. The DPC enjoys full discretion to devise their own methods and procedures for objective assessment of the suitability of officers who are to be considered. While merit has to be recognized and rewarded, advancement in an officers‟ career should not be regarded as a matter of course, but should be earned by dint of hard work, good conduct and result oriented performance based on strict and rigorous selection process.

3. Taking into account the above position, it was decided that the minimum „bench mark‟ for selection to posts carrying grade Rs.7300-7600/- on the Indian Railways should be „Very Good +‟. Accordingly, it was agreed that of the last 5 years ACRs officer should earn

minimum 3 „Very Good‟ and 2 „Outstanding‟ reports for the purpose of empanelment to Grade Rs.7300-7600/- in Railways Services.

4. The above guidelines may be placed before future Selection Committee meetings."

27. A perusal of the assessment done by the DPC, inter alia, in

respect of the petitioner shows that she had been awarded 19.5 points.

Therefore, she failed to make the grade as she did not fall even within

the "grey area" count of 21 points in terms of the Railway Boards

communication dated 22.05.1996.

28. We also do not find any merit in the submission of the petitioner

that there has been non-compliance of the orders dated 10.1.2007 and

13.2.2007 passed by the Division Bench of this Court in the earlier

round of litigation brought by the petitioner to this Court. The

respondents have explained that the information given to the Tribunal

and to the High Court initially, that two vacancies of CMD (HAG) were

to arise in January 2007, was factually incorrect. This aspect had been

clarified by the respondents in their pleadings before the High Court

itself as extracted hereinabove. That being the position in our view no

benefit can be derived by the petitioner on account of the passing of

the aforesaid orders by the Division Bench of this Court. The Court had

directed the consideration of the petitioner‟s case by the DPC to be held

in January 2007 on the basis that such a DPC was due to be held in

January 2007 in respect of two vacancies that were to arise.

Pertinently, when the respondents had clarified the position before the

High Court, no orders were invited by the petitioner by

contemporaneously raising the issue upon the issuance of the said

clarification, and she did not press, at the relevant time, for the

consideration of her case in January 2007.

29. We also find no merit in the submission of the petitioner that the

DRM could not have adjudged the fitness of the petitioner, as he too is

in the same grade i.e. SAG, as the petitioner. The petitioner was

reporting to the DRM. It is pointed out by the respondents without it

being controverted by the petitioner, that there are numerous instances

where one of the officers, working in the same grade as others who are

reporting to him, acts as the Co-ordinating Head of the Department

(CHOD). In such situations, the ACRS are initiated by the CHOD. As

pointed by the respondent, additional DRMS, who are also in SAG report

to the DRM who is also an SAG officer. The DRM initiates the ACR which

are reviewed and accepted by officers at higher levels. The submission

that there was a bias against the petitioner amongst the various

officials of the respondent Railways on account of the petitioner being a

strict task master cannot be accepted as the same is unsubstantiated.

The petitioner has relied upon the following decisions:-

1. Tara Das Dutt & Anr V. Admn Officer Corpn of Calcutta AIR

1951 Cal 397.

2. Advocate General State of Bihar V. M.P.Khair Industries &

Anr (1980) 3 SCC 311.

3. Lt. Col. K.K.D.Gupta V. UOI & Ors (1989) Supp (1) SCC 416.

4. Major General B.M.Bhattacharjee V. Russel Estate Corpn

(1993) 2 SCC 533.

5. SBI & Ors V. Kasinath Kher (1996) 8 SCC 762

6. J.S. Garg V. UOI & Ors (2002) 100 DLT 177 (FB)

7. Badrinath V Govt. Of TN (2000) 8 SCC 395

8. S.K.Verma V. Chairman International Authority (2002) 98

DLT 199

9. CAG V. K. S. Jaganathan & Anr (1986) 2 SCC 679

30. However, we do not find how any of these decisions advance the

case of the petitioner. The decisions in Tara Das Dutt (supra),

M.P.Khair Industries (supra), Lt.Col.K.K.D.Gupta and Major

General Bhattacharjee (supra) are decisions dealing with the aspect

of contempt of Court. These are relied upon in view of the statement

made by the respondents in the earlier writ proceedings initiated by

the petitioner. In our view, these decisions have no applications since

the earlier statement made by the respondents was a mere error. Had

the statement not been made, in our view the petitioner could not have

pressed for any further relief in those proceedings. Moreover, we are

not dealing with a contempt petition, which could have been preferred

by the petitioner if he was so advised for alleged non-compliance of the

earlier orders passed by the Division Bench. No doubt the decision in

the case of Kashinath Kher(supra) relied upon by the petitioner holds

that it is improper for officers in the same rank to initiate the

confidential report of an employee. However, the Supreme Court was

not considering a situation where the concerned employee was

reporting to the employee who initiates the ACR. That was a case

where both, the employee whose ACR was initiated and the employee

who initiated the ACR were reporting to a third superior officer. This is

evident from the opening sentence in Para 15 of the judgment which

reads:

"15. It would appear that the confidential reports and character rolls are being prepared by the officers of the same rank in the same MMGS-II working in the establishment department over the same cadre officers working elsewhere and the reporting officers are the same........".

31. Since in the present case, the ACR initiated by the DRM who is

the CHOD and to whom the petitioner was reporting is reviewed at still

higher levels, in our view, the decision in Kasinath Kher(supra) does

not come to the rescue of the petitioner. Pertinently even according to

the petitioner, the DRM is a non medical officer. Consequently there

would be no conflict of interest between the DRM and SAG officers of

the IRMS. The decision of this Court in J.S.Garg (supra) in our view is

of no avail, since the present is not a case of the petitioner being down

graded while writing her ACRs. The DPC was required to make its own

assessment on the basis of the entries in the ACRs and not to be guided

by the final grading given in respect of the various candidates in their

respective ACRs. For the same reason, the decision of the Supreme