Delhi High Court
Uoi vs Krishna Mohan Dixit on 8 October, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 05th October, 2010
Judgment Delivered On: 08th October, 2010
+ W.P.(C) 6013/2010
UOI ..... Petitioner
Through Mr.VSR Krishna, Adv.
versus
KRISHNA MOHAN DIXIT ..... Respondent
Through Mr.P.P.Khurana, Sr.Adv., with
Ms.Tamali Wad, Adv.
+ W.P.(C) 6039/2010
UOI AND ORS ..... Petitioners
Through Mr.VSR Krishna, Adv.
versus
K HARI PRASADA RAO ..... Respondent
Through Ms.Paurami Shethi, Mr.Pardeep
Dahiya, Advs.
+ W.P.(C) 6554/2010
UOI ..... Petitioner
Through Mr.VSR Krishna, Adv.
versus
R BALA NAIK AND ORS .... Respondents
Through Ms.Paurami Shethi, Mr.Pardeep
Dahiya, Advs.
+ W.P.(C) 6696/2010
UOI ..... Petitioner
Through Mr.VSR Krishna, Adv.
versus
DEVINDER SINGH CHOUDHARY AND ORS .... Respondents
Through Ms.Paurami Shethi, Mr.Pardeep
Dahiya, Advs.
+ W.P.(C) 6723/2010
UNION OF INDIA ..... Petitioner
Through Mr.VSR Krishna, Adv.
versus
RAVINDRA KUMAR RAI & ORS .... Respondents
Through Mr.Pardeep Dahiya, Adv.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
MOOL CHAND GARG, J
1. This common order shall dispose of the batch of the aforesaid
writ petitions filed by Union of India, the petitioner herein aggrieved
of the order passed by the Central Administrative Tribunal
(hereinafter referred to as "the Tribunal") dated 22.10.2009 in
O.A.Nos.2349/2009, 2377/2009, 2353/2009, the order dated
16.02.2010 in O.A.No.99/2010 and the order dated 21.08.2009 in
O.A.No. 586/2009 giving directions to ignore some of the ACRs and to
consider some other ACRs for the purpose of considering the case of
the respondents who all are the members of Indian Revenue Service
working as CIT and CCIT for further promotion by a review DPC on the
ground that the ACRs in question were below bench mark "very good"
and were not communicated to the respondents at the relevant time.
The other reason given in some of the cases is that the adverse ACRs
being three years old prior to the holding of the DPC could not be
considered in view of the Memorandum dated 11.05.1990 issued by
the Department of Personnel and Training (DoPT). Additionally
reason to ignore the adverse ACR is that if the reporting officer and
reviewing officer stands retired, there was no point in asking the
respondent to make a representation.
2. The main decision has been given by the Tribunal in the case of
Krishna Mohan Dixit (OA No. 586/2009) dated 21.08.2009. The said
Judgment has been followed by the tribunal in other cases also.
3. The petitioners assail the decision of the tribunal inter alia, on the
following grounds:-
(i) that the directions of the Learned Tribunal are not in
consonance with law or for that matter the guidelines
on the subject of making representations against the
deemed adverse remarks in the ACR of an officer. It
is submitted that the Tribunal without appreciating
the guidelines issued by the nodal department i.e.
Department of personnel and Training allowed the
application and has passed the above directions by
relying upon the orders dated 05.08.2009 passed by
the Tribunal in the case of Sanjay Kumar Vs. Union of
India and Ors. wherein the Ld. Tribunal took the view
that the ACR for the year 2002-03 in which a grading
of „good‟ was recorded in respect of the applicant
therein should not be considered ignoring ratio of the
full bench decision of the Tribunal in OA No.24 of
2007 decided on 07.05.2008 in the matter of Ashok
Kumar Aneja Vs. Union of India and Ors. wherein it
has been held that ACRs with below benchmark
gradings should be communicated to the officer for
his representation. It is submitted that the Ld.
Tribunal has erred in not relying upon the binding
precedent set by a full bench which it is bound to
follow as a judicial precedent.
(ii) As a matter of fact the decisions of the Hon‟ble
Supreme Court in CA No.7631 of 2002 decided o
23.05.2008 in the case of Dev Dutt Vs. Union of
India, 2008 (8) SCC 725 had ruled that the
government be directed to convey to the concerned
person the ACR, which may be below the benchmark
and to have representation from the concerned
officer and if in consideration thereof the ACR of the
officer is upgraded commensurate with the
benchmark, consider his case for promotion to the
higher post. In the instant case however for no
apparent reason the Ld. Tribunal directed ignoring of
ACRs of the respondent which are below benchmark
and for consideration of the respondent‟s case for
promotion by a review DPC by ignoring below bench
mark gradings. The directions of the Ld. Tribunal are
per se illegal and not proper.
(iii) That the Tribunal has totally misdirected itself in
passing the impugned directions in as much
as in view of the DOPT instructions relating to
making of representations against the adverse
remarks, the said representations would not lie to
either the reporting or review officers but to a still
higher officer. Under such circumstances the
retirement/ superannuation of the reporting or
reviewing officer has nothing to do with the
consideration of the representation against the below
benchmark grading.
(iv) That apart the Tribunal has also erred in concluding
that the ratio of the Hon‟ble Supreme Court
judgment in the case of Abhijit Ghosh Dastidar Vs.
Union of India and Ors. (SLP No.26556/2004 decided
on 22.10.2008) would apply to the facts and
circumstances of the case of the respondent also. It
is submitted that the petitioner in that case had
already superannuated on the date when the
judgment was pronounced and it is in such
circumstances that the Hon‟ble Supreme Court has
passed the aforesaid directions by exercising its
inherent powers. In the present case the respondent
are still in service and therefore to invoke the ratio of
the judgment in Abhijit Ghosh Dastidar is not correct
or proper.
(v) It is submitted that retirement of an officer has
nothing to do with the consideration of the
representations against below benchmark
gradings/adverse remarks since the said
representations do not lie either to reporting or
reviewing officers but lie to a higher officer over and
above the aforesaid officers.
4. According to the petitioners reliance placed in case of Shri
Krishna Mohan Dixit Vs. Union of India as also in other cases upon the
Office Memorandum dated 11.05.1990 after coming into force of the
judgment in the case of Dev Dutt was highly improper as the said
memorandum lost its ground and is no more applicable in the facts of
these cases inasmuch the procedure now laid down in Dev Dutt's
case is to communicate ACRs which were below the benchmark to the
respondent so as to afford an opportunity to them for making a
representation if they so desire before the higher authority to
consider those representation and to reappraise the same and then to
put up the upgraded ACR if any before the review DPC for considering
the case of the respondents for further promotion. It is submitted that
despite non-availability of Reporting Officer & Reviewing Officer, it is
for the Higher Authority to review the same in terms of the Office
Memorandum No. 30.01.1978 G.I.,D.P.&A.R.,O.M.No.21011/1/77-Ests.
and O.M. No.51/14/60-Estt.(A), dated the 31st October, 1961).
Relevant portion is reproduced below:
"23. To whom representation lies.-Representation
against adverse remarks will lie to the authority
immediately superior to the countersigning authority, if
any, or to the reporting officer. If the immediate superior
authority has already reviewed the confidential report in
question and has also expressed his view either agreeing
or disagreeing with the adverse remarks recorded and
accepted by the countersigning authority, the
representation should, in that event, lie to the next higher
authority."
5. It is thus submitted that merely because the Reporting Officer/
Reviewing Officer is not available on account of their retirement, the
Tribunal went wrong in holding that that those ACRs where Reporting
officer/ Reviewing Officer are not available should be ignored.
6. We may observe that the Hon‟ble Supreme Court in
E.P.Rayappa Vs. State of Tamil Nadu (1974) ILLJ172SC and Maneka
Gandhi Vs. Union of India (1978) SCR 621 has observed that Article
14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. It requires that State action must not be
arbitrary but must be based on some rational and relevant principle
which is non-discriminatory; it must not be guided by an extraneous
or irrelevant consideration, because that would be denial of equality.
The principle of reasonableness and rationality which is legally as well
as philosophically an essential element of equality or non-
arbitrariness is protected by Article 14 and it must characterize every
State action, whether it be under authority of law or in exercise of
executive power without making of law. The State cannot, therefore,
act arbitrarily in entering into relationship, contractual or otherwise
with a third part, but its action must conform to some standard or
norm which is rational and non-discriminatory.
7. Keeping the aforesaid principles in view, the Hon‟ble Supreme
Court in the case of Dev Dutt made the following observations:
"5. The stand of the respondent was that according to para
6.3(ii) of the guidelines for promotion of departmental
candidates which was issued by the Government of India,
Ministry of Public Grievances and Pension, vide Office
Memorandum dated 10.4.1989, for promotion to all posts
which are in the pay scale of Rs. 3700-5000/- and above,
the bench mark grade should be 'very good' for the last
five years before the D.P.C. In other words, only those
candidates who had 'very good' entries in their Annual
Confidential Reports (ACRs) for the last five years would be
considered for promotion. The post of Superintending
Engineer carries the pay scale of Rs. 3700- 5000/- and
since the appellant did not have 'very good' entry but only
'good' entry for the year 1993-94, he was not considered
for promotion to the post of Superintending Engineer.
6. The grievance of the appellant was that he was not
communicated the 'good' entry for the year 1993-94. He
submitted that had he been communicated that entry he
would have had an opportunity of making a representation
for upgrading that entry from 'good' to 'very good', and if
that representation was allowed he would have also
become eligible for promotion. Hence he submits that the
rules of natural justice have been violated.
9. In the present case the bench mark (i.e. the essential
requirement) laid down by the authorities for promotion to
the post of Superintending Engineer was that the
candidate should have 'very good' entry for the last five
years. Thus in this situation the 'good' entry in fact is an
adverse entry because it eliminates the candidate from
being considered for promotion. Thus, nomenclature is not
relevant, it is the effect which the entry is having which
determines whether it is an adverse entry or not. It is thus
the rigours of the entry which is important, not the
phraseology. The grant of a `good' entry is of no
satisfaction to the incumbent if it in fact makes him
ineligible for promotion or has an adverse effect on his
chances.
10. Hence, in our opinion, the 'good' entry should have
been communicated to the appellant so as to enable him
to make a representation praying that the said entry for
the year 1993-94 should be upgraded from 'good' to 'very
good'. Of course, after considering such a representation it
was open to the authority concerned to reject the
representation and confirm the 'good' entry (though of
course in a fair manner), but at least an opportunity of
making such a representation should have been given to
the appellant, and that would only have been possible had
the appellant been communicated the 'good' entry, which
was not done in this case. Hence, we are of the opinion
that the non-communication of the 'good' entry was
arbitrary and hence illegal, and the decisions relied upon
by the learned Counsel for the respondent are
distinguishable.
23. In the present case, the action of the respondents in
not communicating the 'good' entry for the year 1993-94
to the appellant is in our opinion arbitrary and violative of
natural justice, because in substance the `good' entry
operates as an adverse entry (for the reason given above).
37. We further hold that when the entry is communicated
to him the public servant should have a right to make a
representation against the entry to the concerned
authority, and the concerned authority must decide the
representation in a fair manner and within a reasonable
period. We also hold that the representation must be
decided by an authority higher than the one who gave the
entry, otherwise the likelihood is that the representation
will be summarily rejected without adequate consideration
as it would be an appeal from Caesar to Caesar. All this
would be conducive to fairness and transparency in public
administration, and would result in fairness to public
servants. The State must be a model employer, and must
act fairly towards its employees. Only then would good
governance be possible.
43. We are informed that the appellant has already retired
from service. However, if his representation for
upgradation of the `good' entry is allowed, he may benefit
in his pension and get some arrears. Hence we direct that
the 'good' entry of 1993-94 be communicated to the
appellant forthwith and he should be permitted to make a
representation against the same praying for its
upgradation. If the upgradation is allowed, the appellant
should be considered forthwith for promotion as
Superintending Engineer retrospectively and if he is
promoted he will get the benefit of higher pension and the
balance of arrears of pay along with 8% per annum
interest."
8. To summarize, the Hon‟ble Supreme Court gave following
directions to deal with the adverse ACRs (below bench mark ACR),
relevant for consideration by a DPC to consider the incumbent for
further promotion :-
(i) The un-communicated adverse ACRs (those which are
below bench mark) should be communicated to him for
enabling him an opportunity of making representation to
assail those entries such as if the entry was „Good‟ then
to get it upgraded to „Very Good‟, the bench mark;
(ii) The representation made, if any, should then be
considered by the Higher Authority who would certainly
entitled to reject the representation and confirm the
„Good‟ entry (though of course in a fair manner);
(iii) The authority to decide representation must be an
authority higher than the one who recorded subject entry,
so as to avoid the principle of appeal from ceaser to
ceaser.
(iv) If the ACR is upgraded, the review DPC to be held for
considering the case of the incumbent afresh for
promotion for the relevant year and in case, the
incumbent is found fit then to promote him forthwith with
retrospective effect. Even if the person has retired when
considered by the review DPC for promotion, he would be
entitled to all consequential benefits.
9. Subsequently, the Hon‟ble Supreme Court also dealt with the
issue in Abhijit Ghosh Dastidar's case. However, in that case except
relying upon the observations made in Dev Dutt's case (supra), no
new law has been laid down. The judgment has also not
distinguished Dev Dutt's case (supra), yet some observations in that
judgment are reproduced hereunder:-
"5. According to the appellant, the adverse entries
namely "good" were not communicated. The said aspect
ought not to have been considered while considering his
promotion. In support of the above claim, he relied on the
decision of this Court in Dev Dutt v. Union of India and Ors.
:(2008) 8 SCC 725 .
6. Pursuant to the direction of the CAT, Patna Bench on
09.09.2002 review of D.P.C. was held and the appellant
was not found suitable for promotion. In March, 2003, there
was a regular D.P.C. and the appellant was found fit for
promotion with the same entries and accordingly promoted
to Higher Administrative Grade Group-A and later retired
from service.
8.Coming to the second aspect, that though the
benchmark "very good" is required for being considered for
promotion admittedly the entry of "good" was not
communicated to the appellant. The entry of 'good' should
have been communicated to him as he was having "very
good" in the previous year. In those circumstances, in our
opinion, non-communication of entries in the ACR of a
public servant whether he is in civil, judicial, police or any
other service (other than the armed forces), it has civil
consequences because it may affect his chances for
promotion or get other benefits. Hence, such non-
communication would be arbitrary and as such violative of
Article 14 of the Constitution. The same view has been
reiterated in the above referred decision relied on by the
appellant. Therefore, the entries "good" if at all granted to
the appellant, the same should not have been taken into
consideration for being considered for promotion to the
higher grade. The respondent has no case that the
appellant had ever been informed of the nature of the
grading given to him.
9. Learned Counsel appearing for the appellant has pointed
out that the officer who was immediately junior in service
to the appellant was given promotion on 28.08.2000.
Therefore, the appellant also be deemed to have been
given promotion from 28.08.2000.
10.Since the appellant had retired from service, we make it
clear that he is not entitled to any pay or allowances for
the period for which he had not worked in the Higher
Administrative Grade Group-A, but his retrospective
promotion from 28.08.2000 shall be considered for the
benefit of re-fixation of his pension and other retrial
benefits as per rules."
10. In view of the aforesaid decision it can simply be observed that
the Hon‟ble Supreme Court while reiterating the view taken by it in
DevDutt's case (supra), in the peculiar facts of the case where the
incumbent stood superannuated took a view that in that particular
case there was no necessity to call for a representation from the
incumbent with respect to adverse ACRs and just to treat him as
promoted as his juniors have also been promoted and he was
promoted even regularly by a subsequent DPC of course without any
pay or allowances for the period for which he had not worked in the
higher administrative grade. Considering the law laid down by the
Hon‟ble Supreme Court itself, suffice would it be to state that such
observations cannot be considered as a binding precedent and would
have to be taken as observations made in the peculiar facts of the
case.
11. Reliance is placed upon the judgment of the Supreme Court in
the case of State of U.P. & Anr. Vs. Synthetics and Chemicals Ltd. and
Anr. (1991) 4 SCC 139. The relevant observations are in para 41 of
the order which reads as under:-
"41. Does this principle extend and apply to a conclusion of
law, which was neither raised nor preceded by any
consideration. In other words can such conclusions be
considered as declaration of law? Here again the English
Courts and jurists have carved out an exception to the rule
of precedents. It has been explained as rule of sub-silentio.
A decision passed sub-silentio, in the technical sense that
has come to be attached to that phrase, when the
particular point of law involved in the decision is not
perceived by the Court or present to its mind' (Salmond
12th Edition). In Lancaster Motor Company {London) Ltd.
v. Bremith Ltd. 1941 1KB 675, the Court did not feel bound
by earlier decision as it was rendered 'without any
argument, without reference to the crucial words of the
rule and without any citation of the authority'. It was
approved by this Court in Municipal Corporation of Delhi v.
Gurnam Kaur AIR1989SC38 . The Bench held that,
'precedents sub-silentio and without argument are of no
moment'. The Courts thus have taken recourse to this
principle for relieving from injustice perpetrated by unjust
precedents. A decision which is not express and is not
founded on reasons nor it proceeds on consideration of
issue cannot be deemed to be a law declared to have a
binding effect as is contemplated by Article 141 Uniformity
and consistency are core of judicial discipline. But that
which escapes in the judgment without any occasion is not
ratio decedendi. In Shama Rao v. State of Pondicherry AIR
1967 SC 1680 it was observed, 'it is trite to say that a
decision is binding not because of its conclusions but in
regard to its ratio and the principles, laid down there-in'.
Any declaration or conclusion arrived without application of
mind or preceded without any reason cannot be deemed to
be declaration of law or authority of a general nature
binding as a precedent. Restraint in dissenting or
overruling is for sake of stability and uniformity but rigidity
beyond reasonable limits is inimical to the growth of law."
12. We are conscious of the fact that dismissing certain writ
petitions in limine, this Bench had upheld orders passed by the
Tribunal where in the absence of the Reporting Authority/ Reviewing
Authority, following Abhijit Ghosh Dastidar's case directions were
issued by the Tribunal to altogether ignore the below benchmark
ACRs and consider the further preceding year ACR which were up to
the benchmark. But we must confess that nobody drew our attention
to paragraph 37 of the decision in Dev Dutt's case as also to the O.M.
dated 30.01.1978, relevant extract whereof has been noted in para 4
above. The said decisions are dismissals in limine without reasons
and hence are not binding precedents. Abhijit Ghosh Dastidar's case,
as noted by us hereinabove follows the law laid down in Dev Dutt's
case, but makes a departure with respect to the final direction issued
for the reason the Supreme Court found that Abhijit Ghosh Dastidar
had superannuated and it was in said context the Supreme Court did
not direct further follow up action as per the law laid down by the
Supreme Court in Dev Dutt's case. It is apparent that the direction in
Abhijit Ghosh Dastidar's case has to be traced through the power of
the Supreme Court under Article 142 of the Constitution of India.
13. Now coming to the Office Memorandum dated 11.05.1990
issued by the DOPT we find that it reads as under:-
"12.1 :Where the DPC find that the adverse remarks in the
confidential Report of an officer have not been
communicated to him but the adverse remarks are of
sufficient gravity to influence their assessment of the
officer concerned, then the Committee shall defer
consideration of the case of the officer, provided these
remarks have been recorded in any of the CRs pertaining
to three years immediately preceding years prior to the
year in which DPC is held and direct the cadre controlling
authority to communicate the adverse remarks to the
officer concerned so that he may have an opportunity to
make a representation against the same. Where the un-
communicated adverse remarks pertain to a period earlier
than the above or where the remarks are not considered of
sufficient gravity to influence the assessment of the officer
concerned, the DPC may ignore the remarks while making
the assessment. (emphasis added).
(Source: Swamy‟s complete Manual on Establishment and
Administration, Tenth Edition, 2006, pages 283-284)"
14. Neither in Dev Dutt's case nor in Abhijit Ghosh Dastidar's case
there was any mention about the Office Memorandum dated
11.05.1990 issued by the DoPT, yet the Tribunal has passed the
following directions in the case of Krishna Mohan Dixit in OA
No.586/2009 on the basis of the aforesaid memorandum:-
"In the light of above discussion the OA succeeds. The
respondents are directed to hold review DPC for
considering the applicant for promotion to the post of CIT
by ignoring the ACRs for the period 2003-04 and 2004-05
and considering the ACRs for the period preceding the year
2001-02. The DPC shall ignore any ACR before the year
2001-02, which has similarly un-communicated adverse
entry, which is a grading below the prescribed benchmark.
The review DPC should be convened within four months of
the receipt of a certified copy of this order. No costs."
15. Similar directions have been given in other connected matters
as is apparent by the following Chart reproduced hereunder:-
WP OA ACR'S Tribunal's
(C) No. Observation
6013/ 586/ Year Repor Revie Gradin Hold Review
2010 2009 ting wing g by DPC
officer officer DPC Ignore ACR for
2002- Very Very Very year 2003-04
03 good good good and 2004-05
2003- Good Good Good Ignore any un-
04 communicated
2004- Good Good Good ACR preceding
05 to 2001-02
2005- Outsta Very Very
06 nding good good
2001- Outsta Outsta Very
02 (in nding nding good
lieu of
2006-
07)
6039/ 2349/ Year Remarks not Ignore below
2010 2009 communicate benchmark
d ACR‟s
2003-2004 Good Take into
2006-2007 Good consideration
two ACR‟s
immediately
preceding the
said ACR‟S
If previous ACR
not available
then take into
consideration
the only ACR
available
before the ACR
in question.
6554/ 2353/ Year Remarks not Follow
2010 2009 communicat judgement of
ed K.M. Dixit
2004-2005 Good Constitute
2005-2006 Good Review DPC
Ignore 2 below
benchmark
ACR‟s
Take into
consideration
two ACR‟s
immediately
preceding the
said ACR‟S
If previous ACR
not available
then take into
consideration
the only ACR
available
before the ACR
in question
6696/ 2379/ Year Remarks not Ignore below
2010 2010 communicated benchmark
2002-2003 Good ACR‟s
2003-2004 Good Take into
consideration
two ACR‟s
immediately
preceding the
said ACR‟S
If previous ACR
not available
then take into
consideration
the only ACR
available
before the ACR
in question
6723/ 99/ Year Remarks not Ignore ACR for
2010 2010 communicated year 2004-05
2004-2005 Good Take into
consideration
ACR for year
2002-03
Constitute
review DPC
16. A reading of the Tribunal‟s order in Krishna Mohan Dixit case
and the other cases goes to show that in all these cases, the Tribunal
with respect to the Annual Confidential Reports which were adverse
and which were prior to three years of the date of DPC, has directed
to ignore the same (if they were below the bench mark and to go
back relying upon Abhijit Ghosh Dastidar's case which as stated
above was an observation in the peculiar facts of that case and does
not lay down any binding precedent.
17. Shri VSR Krishna has also submitted that after the Judgments as
cited above the nodel ministry has issued the Office Memorandum
dated 13.04.2010 which holds the field today. It reads as under:
"OFFICE MEMORANDUM
Subject: Below Benchmark gradings in ACRs prior to the
reporting period 2008-09 and objective consideration
of representation by the competent authority against
remarks in the APAR or for upgradation of the final
grading.
The undersigned is directed to say that prior to the
reporting period 2008-09, only the adverse remarks in the
ACRs had to be communicated to the concerned officer for
representation, if any to be considered by the competent
authority. The question of treating the grading in the ACR
which is below the benchmark for next promotion has been
considered in this Department and it has been decided that
if any employee is to be considered for promotion in a
future DPC and his ACRs prior to the period 2008-09 which
would be reckonable for assessment of his fitness in such
future DPCs contain final grading which are below the
benchmark for his next promotion, before such ACRs are
placed before the DPC, the concerned employee will be
given a copy of the relevant ACR for his representation, if
any, within 15 days of such communication. It may be
noted that only below benchmark ACR for the period
relevant to promotion need be sent. There is no need to
send below benchmark ACRs of other years.
2. As per existing instructions, representations against
the remarks or for upgradation of the final grading given in
the APAR (previously known as ACR) should be examined
by the competent authority in consultation, if necessary,
with the Reporting and the Reviewing Officer, if any. While
considering the representation, the competent authority
decides the matter objectively in a quasi-judicial manner
on the basis of material placed before it. This would imply
that the competent authority shall take into account the
contentions of the officer who has represented against the
particular remarks/grading in the APAR and the views of
the Reporting and Reviewing Officer if they are still in
service on the points raised in the representation vis-à-vis
the remarks/grading given by them in the APAR. The UPSC
has informed the Department that the Commission has
observed that while deciding such representations, the
competent authorities sometimes do not take into account
the views of Reporting/Reviewing Officers if they are still in
service. The Commission has further observed that in a
majority of such cases, the competent authority does not
give specific reasons for upgrading the below benchmark
ACR/APAR gradings at par with the benchmark for next
promotion.
3. All Ministries/Departments are therefore requested to
inform the competent authorities while forwarding such
cases to them to decide on the representations against the
remarks or for upgradation of the grading in the APAR that
the decision on the representation may be taken
objectively after taking into account the views of the
concerned Reporting/Reviewing Officers if they are still in
service and in case of upgradation of the final grading give
in the APAR, specific reasons therefore may also be given
in the order of the competent authority.
(C.A.Subramanian)
Director"
18. It is submitted that in terms of the aforesaid all the respondents
have already made a representation which are pending consideration.
19. In any case what can be inferred from the law laid down by the
Hon‟ble Supreme Court in Dev Dutt's case and Abhijit Ghosh
Dastidar's case is as under:-
(i) Annual confidential Report which is below the
benchmark within the period of 5 years which is relevant
for the purpose of consideration of the case of the
incumbent for the purpose of promotion, unless
communicated earlier will not be considered unless and
until an opportunity is granted to the incumbent to make a
representation thereof to the competent authority and
such representation is disposed of and order
communicated to the incumbent after the aforesaid
process is followed then the authorities would be obliged to
have a review DPC for considering the case of the
incumbent for promotion in the relevant year.
(ii) Even in those cases where the Reporting Officer and
the Reviewing Officer is not available, the ACR is not to be
ignored the process to be followed would be to give an
opportunity to the incumbent to make a representation
against the adverse ACRs which may be considered by the
competent authority which in the event of any of the
officer whether he is a Reporting officer or Reviewing
Officer not available, would be considered by the higher
authority, that is to say, if neither the Reporting Officer nor
Reviewing Officer is available then it may be considered by
the Accepting Authority.
20. In fact the issue is no more res-integra inasmuch as vide our
orders dated 09.08.2010 passed in W.P.(C) No.5313/2010 we have
already disposed of the controversy in so far as applicability of the
Memorandum dated 11.05.1990 is concerned. Relevant portion is
reproduced for the sake of reference.
"1. The grievance of the writ petitioner is that the
Tribunal went wrong in applying the DOPT OM dated
11.05.1990 for the reason when the said OM was
promulgated, decision of the Supreme Court reported in JT
2008 (9) Supreme Court 463 Dev Dutt Vs. UOI and Ors. had
not been pronounced. Counsel urges that OM dated
11.05.1990 envisaged only those ACR gradings which
contained „adverse remarks‟ as conventionally understood
and not remark which may be adverse as expounded by
the Supreme Court in the decision in Dev Dutt's case.
Needless to state for the first time in Dev Dutt's case it was
held that though an ACR grading may not be adverse as
conventionally understood, but if it is below the benchmark
prescribed for promotion to a higher post, having an
adverse impact on the entitlement to be promoted, it
would be akin to an adverse remark.
2. We agree with the submissions made by the learned
counsel for the petitioner that the OM dated 11.05.1990
cannot be made applicable to ACR gradings which
otherwise are not adverse but would require to be
intimated to the employee and response received on
account of the grading being below prescribed benchmark.
3. Learned counsel for the respondent states at this
stage that there were other issues raised in the OA filed
before the Tribunal which may attract the subsequent
decision of the Supreme Court in Abjijit Ghosh Dastidar's
case arising out of Civil Appeal No.6227/2008 decided by
the Supreme Court.
4. Accordingly we dispose of the petition setting aside
the impugned decision and order dated 09.04.2010
declaring that OM dated 11.05.1990 has no application in
the instant case."
21. Even otherwise the question of following Office Memorandum
dated 11.05.1990 is out of question for the following reasons:-
(i) At the time when the Office Memorandum was enforced
the judgment is Dev Dutt's case was not available;
(ii) The bench marks at that time were not „Very Good‟;
(iii) Ignoring ACR for three years prior to the date of DPC has
no relevance to the present day atmosphere where the
bench mark is fixed and consideration has to be for ACR
of five years;
(iv) In view of the judgment delivered by the Hon‟ble Supreme
Court in the case UP Jal Nigam followed in Dev Dutt's case
and Abjijit Ghosh Dastidar's case, all ACRs are to be
communicated to the incumbent. Wherever the ACRs are
below bench mark, a representation can be made by the
affected person which will then be considered by the
competent authority and in any case, not by the same
authority which gave the adverse ACR but by an authority
above it ; and,
(v) At least in the case of a person who is already in service,
the question of ignoring the adverse ACRs instead of
giving a chance of making representation does not arise.
22. In view of the aforesaid, we are of the considered view that the
orders passed by the Tribunal in all these cases cannot be sustained.
Thus the orders passed by the Tribunal would stand modified to the
extent that the adverse ACRs which falls within the consideration
zone i.e. in the relevant 5 years before the date of holding the DPC, if
not communicated earlier but are below bench mark would be
communicated within a period of 4 weeks from today to the
incumbent officer if not communicated so far. The respondent would
then be eligible to make a representation within 15 days thereof if not
made already, and that such representation would be decided by the
competent authority, which, of course, would be higher in rank to the
authority who gave the adverse ACR within next 2 weeks irrespective
of the fact whether the Reporting Officer or the Reviewing Officer or
both are available or not. In case, the ACR is upgraded, making the
incumbent eligible for consideration, review DPC would be held based
upon the reappraised ACRs for the relevant period within six weeks.
In case, the review DPC finds the incumbent fit for promotion, the
benefit thereof would be given to him from the date when he was
entitled for promotion to the next post had the ACR in question would
not have been considered averse to him with all consequential
benefits.
23. All the writ petitions are disposed of in terms of directions given
above. Interim orders, if any, stands vacated.
MOOL CHAND GARG, J
PRADEEP NANDRAJOG, J
OCTOBER 08, 2010
ga
