Delhi High Court
Tarun Kumar vs Union Of India & Ors. on 18 April, 2011
Author: Sanjiv Khanna
14.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18th April, 2011
+ WRIT PETITION (CIVIL) NO. 7066/2003
TARUN KUMAR ..... Petitioner
Through Mr. Mata Din, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Ruchir Mishra & Mr. Mukesh
Kumar Tiwari, Advocates for respondent
Nos. 1 and 2.
Ms. Bindra Rana & Ms. Meenu Sharma,
Advocates for UPSC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers 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 ?
SANJIV KHANNA, J.:
In this writ petition, which was filed in the year 2003, the
challenge is to the order dated 25th April, 2003 passed in O.A.
No. 2967/2002. By the impugned order, the O.A. filed by the
petitioner has been dismissed, inter alia, holding that the
respondent-Union of India, Department of Telecommunication
WRIT PETITION (CIVIL) NO. 7066/2003 Page 1 of 7
now represented by MTNL was not required to convey the
grading awarded to the petitioner in the Annual Confidential
Reports (ACRs). The petitioner was considered for promotion to
Junior Administrative Grade (JAG) for the vacancy period 1994-
95, 1997-98 and was in the zone of consideration against the
vacancy year 1997-98. He was not empanelled for promotion by
the Department Promotion Committee (DPC) as he did not attain
the benchmark of „very good‟ in the relevant ACRs.
2. It is not disputed that the benchmark for promotion to JAG
was „very good‟. The ACR grading of the petitioner were as
under:
"
1 2 3 4
Year Reporting Review
Officer Officer
I 91-92 Very Good Very Good
II 92-93
i) 1.4.92 to 5.10.92 Good Not Downgraded
reviewed by
ii) 6.10.92 to Good Average Reviewing
Officer
31.3.93
III 93-94 Very Good Good Downgraded
by
Reviewing
Officer
WRIT PETITION (CIVIL) NO. 7066/2003 Page 2 of 7
IV 94-95 Very Good Very Good
V 95-96
Downgraded
i) 1.4.95 to 6.10.95 Very Good Good by
Reviewing
ii) 11.10.95 to Very Good Very Good Officer
31.3.96
VI 96-97
Downgraded
i) 1.4.96 to 18.8.96 Good Not by
reviewed Reviewing
ii) 19.8.96 to Very Good Good Officer
31.3.97
"
3. The issue raised in the present writ petition is covered by
the decision of the Supreme Court in Dev Dutt versus Union of
India and Others, (2008) 8 SCC 725. There is no dispute about
the same. The issue raised is how and in what manner the
decision in the case of Dev Dutt (supra) should be implemented.
4. Learned counsel for the petitioner has submitted that the
review DPC should ignore the ACRs for the year 1992-93, 1993-
94, 1.4.1995 to 6.10.1995 and 1996-97 and accordingly assess
and decide whether or not the petitioner should have been
promoted as JAG for the vacancy in the year 1997-98. In this
connection, learned counsel for the petitioner has relied upon
the order dated 27th July, 2004 passed in the Special Leave to
Appeal (Civil) No. 26556/2004, Abhijit Ghosh Dastidar versus
WRIT PETITION (CIVIL) NO. 7066/2003 Page 3 of 7
Union Of India and Others and he has referred to decision of
this Court in J.S. Garg versus Union of India and Others,
2002 (65) DRJ 607 (FB) and the order passed by the Supreme
Court in Civil Appeal No. 5319/2003 in the appeal filed by the
Union of India.
5. In J.S. Garg's (supra) case, the principal and the main
issue which was decided and considered was whether the below
par grading, which were not adverse but had therein own
negative consequences should be communicated and without
communication whether the said gradings could be relied upon
by the DPC. It was held that such grading, if not communicated,
cannot be taken into consideration by the appropriate authority.
Decision in the case of J.S. Garg (supra) was before the
decision in the case of Dev Dutt (supra) and the Full Bench of
Delhi High Court had relied upon U.P. Jal Nigam versus
Prabhat Chandra Jain, (1996) 2 SCC 363.
6. In Civil Appeal No. 5319/2003, the Supreme Court
observed that the decision in the case of Dev Dutt (supra) had
been confirmed by three Judges Bench in Abhijit Ghosh
Dastidar (supra) and accordingly the appeal filed by the Union
of India was dismissed.
WRIT PETITION (CIVIL) NO. 7066/2003 Page 4 of 7
7. The procedure which should be adopted in such cases did
not come for specific consideration in the said case. The
procedure has now been examined and laid down in the case of
Union of India versus Krishna Mohan Dixit, Writ Petition
(Civil) No. 6013/2010 decided on 8th October, 2010. The order of
the Supreme Court in Abhijit Ghosh Dastidar (supra) was
examined by a Division Bench of this Court in Krishna Mohan
Dixit (supra). The Division Bench considered the effect of the
decision in Dev Dutt (supra) and the consequences thereof.
The Division Bench did not agree that the grading given in the
ACRs should be ignored if the said grading was not
communicated though the officer concerned did not meet the
required benchmark. On the other hand, after a detailed
consideration, it was directed as under:
"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
WRIT PETITION (CIVIL) NO. 7066/2003 Page 5 of 7
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."
8. Following the judgment in the case of Krishna Mohan
Dixit (supra), we remit the matter to the DPC for fresh
consideration. With regard to the grading given in the ACRs, the
directions given in paragraph 22 in the case of Krishna Mohan
Dixit (supra) would equally apply and will be followed. As the
matter has remained pending for a long time, it is directed that
on the petitioner making a representation, the same shall be
considered and decided within a period of two months thereafter
and the review DPC will be convened and held within a period of
one month therefrom.
WRIT PETITION (CIVIL) NO. 7066/2003 Page 6 of 7
The writ petition is accordingly disposed of.
SANJIV KHANNA, J.
CHIEF JUSTICE
APRIL 18, 2011
VKR
