Union Of India & Anr. vs Amit Shankar And Ors.
2011 Latest Caselaw 3330 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Writ Petition (Civil) No.850 of 2000


%                                     Orders Dictated On: 14th July, 2011.

       UNION OF INDIA & ANR.                             . . . PETITIONER

                          through :            Mr. Anuj Aggarwal with Ms.
                                               Tania Sharma and Mr. Gaurav
                                               Khanna, Advocates.


                                VERSUS


       AMIT SHANKAR AND ORS.                            . . .RESPONDENT

                          through:             Mr. Sarvesh Bisaria with Mr.
                                               Prakash   Chandra   Sharma,
                                               Advocates.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE M.L. MEHTA

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


A.K. SIKRI, J. (ORAL)

1. The respondent No.1 joined the service with the

petitioner/Union of India in the Ministry of Defence as a Junior

Translator on 14.08.1989 after he was selected on the basis of

examination conducted by the Staff Selection Commission in

the year 1987. The Respondent No.2 & 3 also joined the said

service in the same post on the basis of same examination. In

the Seniority List of the Junior Translator, respondent No.1 was

placed at Sl. No.4, whereas the respondent Nos. 2 & 3 were

shown at Sl. Nos. 3 and 7 respectively. It is clear therefrom

that the respondent No.1 was junior to the respondent No.2

and was senior to respondent No.3. Next promotion is to the

post of Senior Translator. It is not in dispute that as per the

Recruitment Rules, the said post of Senior Translator is a non-

selection post and criteria for promotion prescribed is

"seniority-cum-fitness". Thus, the promotion is to be made on

the basis of seniority and only an „unfit‟ person is to be

excluded.

2. The DPC for this purpose was held on 20.12.1994 when the

respondent No.1 along with respondent Nos.2 and 3 were

considered for the aforesaid post. The DPC did not recommend

the case of the respondent No.1 categorising it as "not yet fit"

on the basis of assessment of his service records. It, however,

recommended the promotion of both the respondents 2 and 3

to the post of Sr. Translator. Accordingly, the respondent Nos.

2 & 3 were given the promotion to the post of Senior

Translator, whereas the respondent No.1 was denied the same.

3. Aggrieved by the above action of the petitioner in not

promoting the respondent No.1 to the aforesaid post of Senior

Translator, the respondent NO.1 filed OA No.461 of 1995 before

the Central Administrative Tribunal (hereinafter referred to as

„the Tribunal‟), New Delhi challenging his non-promotion.

4. In the aforesaid OA, apart from impleading Union of India, the

respondent No.1 arrayed respondent Nos.2 & 3 also. The

petitioner contested this OA on the ground that there were

certain adverse remarks made in the Confidential Report of the

respondent No.1 for the year 1991-92, which influenced the

DPC to conclude that the respondent No.1 was not fit for

promotion. The respondent No.1, on the other hand,

contended that those remarks stood expunged in the year 1993

and therefore, could not have been considered

5. In order to verify the respective claims of the parties, the

Tribunal called for the DPC records. It was found by the

Tribunal that in the year 1991-92, adverse remarks recording

late coming to the office was shown in the ACR of the

respondent No.1. However, at the bottom of these very

remarks, another remark was made in 1993 that the

respondent No.1 was regular. From this, the Tribunal

concluded that the sting of remarks made in the year 1991-92

stood removed. It was also noted by the Tribunal that for the

years 1989-90 and 1992-93, the respondent No.1 was given the

gradation of „good‟ and in the remaining three years, the

gradation was „average‟. Relying upon the guidelines issued by

the Department of Personnel & Training and particularly, Para

6.1.4 thereof which stipulates that „average‟ gradation is not to

be treated as adverse remarks, the Tribunal took the view that

on the basis of the aforesaid gradation of „good‟ for two years

and „average‟ for three years, it could not be said that there

was anything adverse against the respondent No.1. Since the

Rule for promotion, as mentioned above, is „seniority-cum-

fitness‟ and in the absence of adverse comments in the records

against respondent No.1, it could not be stated that he was

unfit for promotion. As he was senior to respondent No.3, who

was promoted, the respondent No.1 could not be denied for the

promotion of Senior Translator. On this basis, the OA of the

respondent No.1 was allowed by the Tribunal with direction to

consider the case of the respondent No.1 for promotion to the

post of Senior Translator with effect from 20.12.1994 with all

consequential benefits.

6. Challenging the aforesaid order passed by the Tribunal, the

present writ petition is preferred.

7. Contention of the learned counsel for the petitioner is that it

was permissible for the DPC to take into consideration adverse

remarks which were recorded in the ACR of 1991-92 and it is

the function of the DPC to adjudge the suitability of a candidate

for promotion and in the absence of any mala fide attributed to

the DPC, such a decision of the DPC could not have been

tinkered with by the Tribunal.

8. The aforesaid arguments as a proposition of law appears to be

attractive, but has no legs to stand when viewed in the light of

the facts of this case. It is to be borne in mind that the post of

Senior Translator is not a selection post and the DPC is not

required to compare the merits of the candidates. The

promotion to the said post is to be made on the basis of

seniority and only a candidate who is treated as „unfit‟ is to be

discarded. It is a matter of record that for undertaking this

exercise, the DPC looked into the ACR alone. No doubt in the

ACR for the year 1991-92, there were certain remarks to the

effect that the respondent No.1 had been coming to the office

late. However, the fact remains that he improved immediately

thereafter shaking off this habit and became punctual in

coming to the office. It was specifically recorded in his service

book. We are in agreement with the view taken by the Tribunal

that this could no longer be held against him. For this reason,

therefore, he could not be treated as „unfit‟. However, even

otherwise, if one goes by the ACRs which are recorded for five

years including the year 1991-92, he has been given the

gradation „good‟ for two years and „average‟ for three years

and on this ground also, the respondent No.1 could not be

treated as „unfit‟.

9. We, thus, find no merit in this writ petition, which is accordingly

dismissed.

10. The directions given by the Tribunal to consider the case of the

petitioner for promotion to the post of Senior Translator with

effect from 20.12.1994, the said direction shall be carried out

by the petitioners. With the dismissal of the writ petition,

necessary directions be made and orders be passed within four

weeks from today in this behalf.

11. Registry of this Court is directed that the copy of this order be

supplied to the learned counsel for the petitioner immediately

on applying for certified copy.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE JULY 14, 2011 pmc