Delhi High Court
Union Of India vs Dr. Vishnu Kant Srivastava on 30 May, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 3787/2011
Union of India ....Petitioner
Through Mr. H.K. Gangwani, Advocate.
VERSUS
Dr. Vishnu Kant Srivastava .....Respondent
Through Mr. R.V. Sinha and Mr. R.N. Singh,
Advocates.
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 ?
ORDER
% 30.05.2011
SANJIV KHANNA, J.
CM No. 7915/2011 (for exemption)
Allowed, subject to all just exceptions.
Writ Petition (Civil) No. 3787/2011
With the consent of the parties, since a limited issue is involved,
the writ petition is taken up for final hearing at the stage of admission
itself.
2. The respondent herein had filed OA No. 917/2010, which has
been disposed of by the impugned order dated 6th August, 2010, inter
alia, directing as under:-
"4. We allow this application with direction to
the respondents to convene Review DPC wherein
ACR of the applicant for the year 2002-03 shall not
be taken into consideration. Instead, the DPC
would take into consideration the earlier ACR of
the applicant for the year 2001-02 along with
other relevant ACRs which were already under
consideration, to re-assess the applicant for
promotion to SAG. If otherwise found fit, the
applicant shall be entitled to promotion to SAG
and all consequential reliefs from the date his
junior was promoted. Let this exercise be done as
expeditiously as possible and preferably within a
period of six weeks from today."
3. The contention of the respondent which has been accepted by
the Tribunal is that he was not communicated and informed about his
ranking/grading in the ACRs which was below the prescribed bench-
mark required for promotion and, therefore, he has been denied
promotion in the Departmental Promotion Committee (DPC) meeting
held on 26th September, 2008.
4. The said aspect has been examined by the Supreme Court in Dev
Dutt vs. Union of India & Ors., 2008(8) SCC 725 and Abhijit Ghosh
Dastidar vs. Union of India and Ors., Civil Appeal No. 6227/2008
decided on 22nd October, 2008.
5. A Division Bench of Delhi High Court in Writ Petition (Civil) No.
6013/2010, titled Union of India vs. Krishna Mohan Dixit, examined the
two decisions of the Supreme Court mentioned above and the effect
thereof. In the said case, decision of the Tribunal in the case of Krishna
Mohan Dixit decided on 21st August, 2009 was reversed and the
following directions were issued:-
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."
6. In the present case also the Tribunal has followed the decision
dated 21st August, 2009 in Krishna Mohan Dixit (supra) and accordingly
the directions given in paragraph 4 of the impugned order dated 6th
August, 2010, have to be reversed. We accordingly set aside the
directions given in paragraph 4 of the impugned order dated 6th August,
2010. Instead the directions given in order dated 8th October, 2010 in
Writ Petition (Civil) No. 6013/2010 titled Union of India vs. Krishna
Mohan Dixit will apply. The parties will also comply with and adhere to
the time period specified in paragraph 22 of the said decision. The
time period will begin from the date of this order is received in the
office of the petitioner.
7. The writ petition is accordingly disposed of.
SANJIV KHANNA, J.
CHIEF JUSTICE
May 30, 2011
kkb
