Union Of India & Ors. vs Hemant Kumar Sharma
2011 Latest Caselaw 3831 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.7026/2010

%                        Date of Decision: 09.08.2011

Union of India & Ors.                                     .... Petitioners

                        Through Mrs. Sonia Sharma, Advocate.

                                  Versus

Hemant Kumar Sharma                                      .... Respondent

                        Through Mr. Amit Anand, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether reporters of Local papers may           YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?          NO
3.        Whether the judgment should be                  NO
          reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, Union of India & Ors., have challenged the order

dated 12th March, 2010 passed by the Central Administrative Tribunal,

Principal Bench in Original Application No.2622/2009 titled as 'Hemant

Kumar Sharma v. Union of India and Ors' allowing the application of

the respondent with direction to the petitioner to ignore the below

bench mark uncommunicated ACRs of the respondent for the years

2006-2007 and 2007-2008 and instead to take into consideration the

two earlier ACRs for the year 1999-2000 and 2000-2001 and if the

ACRs of the year 1999-2000 and 2000-2001 be commensurate with the

bench mark, then, to constitute a review DPC to consider the case of

the respondent for promotion to the Higher Administrative Grade (HAG)

post of Chief Post Master General and if the respondent is found fit then

to promote him notionally, however, holding that he would be entitled

for pay of the promotional post from the date he assumes charge of the

said post.

2. After considering the pleas and contentions of the parties, the

Tribunal had noticed that the respondent had been overlooked in the

matter of promotion as per his service record by the DPC held on 30th

June, 2009 though in the ACRs of the applicant for the year 2001-2002,

2003-2004 and 2005-2006 his grading was 'very good', however, the

respondent was graded 'average' for the year 2006-2007 and 'good' for

the year 2007-2008, which grading was below the bench mark. It was

also held that admittedly the ACRs where the grading of the respondent

was below the bench mark were not communicated to him and relying

on Dev Dutt v. Union of India, (2008) 8 SCC 725 and Ashok Kumar

Aneja v. Union of India & Ors, O.A No.24/2007 decided on 7th May,

2008, it was held that the respondent was entitled for direction to the

petitioner for the communication of his ACRs which were below the

bench mark and after considering his representation and in case of

upgrading of his ACR commensurating with the bench mark, then to

constitute a review DPC to consider his case for promotion to the Higher

Administrative Grade (HAG) post of Chief Post Master General for the

panel year 2009-2010.

3. The Tribunal, however, held that a departure had to be made in

the case of the respondent for the reasons that for the period 2006-

2007 his ACRs were reported by Sh.S.K.Das, who retired in the month

of June, 2007 and the reviewing officer Sh.M.G.Khan for both the years

of 2006-2007 and 2007-2008 had retired on superannuation in June,

2008 and consequently it was directed that his ACRs for the year 2006-

2007 and 2007-2008 be not taken into consideration and that instead

the earlier two ACRs for the year 1999-2000 and 2000-2001 be taken

into consideration.

4. The petitioners, Union of India and Ors., challenged the order of

the Tribunal contending, inter-alia, that there is no rule whereby the

ACRs of 2006-2007 and 2007-2008 can be excluded and ACRs of 1999-

2000 and 2000-2001 be substituted. The petitioner has relied on the

decision of the Supreme Court in K.M.Mishra v. Central Bank of India,

(2008) 9 SCC 120 holding that mere down grading of ACRs from 'very

good' to 'good' does not entitle a person for the substitution of the same.

The petitioner has also relied on some of the petitions pending in the

Supreme Court regarding non communication of ACRs which have

below bench mark grading and for exclusion of such ACRs which have

grading below bench mark and substitution of the same by other ACRs

of previous years.

5. The learned counsel for the petitioner has also relied on a

decision of this Court in the matter of Union of India v. Krishna Mohan

Dixit, W.P(C) No.6013/2010 decided on 8th October, 2010. In the said

case the Division Bench had set aside the decision of the Tribunal to

ignore the adverse ACRs, which were not communicated and which

were below the bench mark, and had held that the ACRs below the

bench mark ought to be communicated to the concerned official, who

would be entitled to make a representation against the said ACRs,

seeking an upgradation, if necessary, and the department shall be

entitled to consider the representation and to modify the ACRs, if

required. The Division Bench had also held that if the department

upgrades the ACRs pursuant to the representation made, then it would

hold a review DPC which would consider all the ACRs including the

reappraised ACRs for the relevant period. It was further held that if the

review DPC would find the incumbent fit for promotion, then the benefit

would be given to the employee from the date when he was entitled for

promotion to the next post, had the ACR in question not been

considered adverse to him, with all the consequential benefits. Another

Division Bench of this Court by order dated 21st December, 2010 had

disposed of a number of writ petitions and letters patent appeals

following the decision of the coordinate bench in the above mentioned

case.

6. In the present facts and circumstances, the order of the Tribunal

directing the petitioners not to consider the below bench mark un-

communicated ACRs of the years 2006-2007 and 2007-2008 and

instead to consider the earlier 2 ACRs for the years 1999-2000 and

2000-2001, cannot be sustained and is liable to be set aside.

7. The learned counsel for the respondent has contended that

during the pendency of the writ petition, the un-communicated below

bench mark ACRs of the years 2006-2007 and 2007-2008 have been

communicated to the respondent, and the respondent has made

representations against the said ACRs and the representations of the

respondent have been rejected by order dated 8th December, 2010 and

27th January, 2011. Consequently, it cannot be held that the ACRs of

the respondent for the years 2006-2007 and 2007-2008 be not

considered for promotion to the HAG post of Chief Post Master General.

8. For the foregoing reasons, the writ petition is allowed and the

impugned order dated 12th March, 2010 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi in OA

No.2622/2009, titled as 'Hemant Kumar Sharma v. Union of India &

Ors.' is set aside and the OA of the respondent is dismissed. Since the

ACRs of the years 2006-2007 and 2007-2008 have already been

communicated to the respondent, and the respondent has also filed his

representations against the said ACRs, and the representations of the

respondent have been rejected by order dated 8th December, 2010 and

27th January, 2011, the petitioner shall not be obliged entitled to hold a

review DPC and consider the ACRs of the respondent for the years

1999-2000 and 2000-2001 in place of the ACRs of the years 2006-2007

and 2007-2008. The interim order dated 21st October, 2010 is vacated

and the writ petition is disposed of in terms hereof. All the pending

applications are also disposed of and the parties are left to bear their

own costs.

ANIL KUMAR, J.

August 09, 2011                       SUDERSHAN KUMAR MISRA, J.
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