Uoi & Ors. vs Dr.N.Rajagopal Acharya & Ors.
2011 Latest Caselaw 4321 Del

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                               WP(C) No.4770/2010

%                           Date of Decision: 05.09.2011

UOI & Ors.                                                    .... Petitioners

                          Through Mr.R.V.Sinha       &   Ms.Sangeeta     Rai,
                                  Advocates.

                                    Versus

Dr. N.Rajagopal Acharya & Ors.                              .... Respondents

                          Through Ms.Amita Kalkal Chaudhary, Advocate
                                  for Mr.Naresh Kaushik, Advocate for
                                  respondent No.29


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 petitioners, Union of India & Ors., have challenged the order

dated 3rd December, 2009 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in O.A No.951/2005 titled as

„Dr.N.Rajagopal Acharya v. Union of India & Ors.‟ directing the UPSC to

convene a review DPC and to re-consider the claims of respondent No.1

on the methodology laid down by the Supreme Court in Civil Appeal

No.6227/2008 decided on 22nd October, 2008 titled as „Abhijit Ghosh

Dastidar v. Union of India & Ors. Thereafter, on the basis of the results,

the Tribunal further directed the petitioners to consider the claim of

respondent No.1 for promotion as Professor from the date the others

had been given promotion i.e. 17th September, 2004 and if found eligible

to grant all the consequential benefits in law to respondent No.1.

2. The brief facts to comprehend the disputes between the parties

are that respondent No.1 had challenged the order dated 17th

September, 2004 and had prayed for promotion to the Specialist Grade-

I in the Teaching Faculty as a Director Professor with all the

consequential benefits from 17th September, 2004 i.e. from the date the

others who were similarly situated had been promoted. Respondent

No.1 had contended that he had voluntarily retired as a Professor of Bio

Chemistry from G.B.Pant Hospital, New Delhi w.e.f. 31st January, 2005

and had approached the Tribunal to seek the quashing of order No.A-

32012/1/2003-CHS-III dated 17th September, 2004, denying him

promotion to the Super-time grade of the Teaching Specialist Sub-cadre

of the Central Health Service (Director Professor) in the pay scale of

Rs.18400-22400 plus NPA.

3. That on 31st July, 2003, respondent no.1 during his service had

been directed by the then Director of G.B. Pant Hospital, New Delhi, to

submit all his Annual Confidential Reports pertaining to the period from

1995 onwards. This was done for the purpose of convening a meeting of

DPC for considering the promotion of Professor Level Officers to the

rank of Director-Professor (SAG). That the holding of DPC was getting

delayed only on account of want of Annual Confidential Reports (ACRs)

of 7 Officers for the varying periods between 1996-1997 and 2001-2002.

The plea of respondent No.1 was that in his case surprisingly his

complete CR dossier was not available. Subsequently, respondent No.1

filed ACRs en-bloc in duplicate with the Director for due reporting and

reviewing as directed pursuant to letter dated 25th July, 2003 received

from the Central Health Service which was enclosed with the

communication dated 31st July, 2003 received by respondent no. 1

from the then Director of G.B. Pant Hospital. Respondent No.1 also

contended that he became apprehensive that the Reporting and

Reviewing Officers were likely to obstruct his promotion by making his

grading just as `good‟ so that no communication of the same would be

required to be made to respondent No.1 and yet that would deprive him

of his promotion. According to respondent No.1, he came to know that

the DPC had made recommendation on the basis of four "very good"

entries for five years and those officers in seniority who lacked four

"very good" entries had been left out. Apprehending mischief, the

respondent no.1 even made a representation dated 28th February, 2004

followed by a reminder dated 25th March, 2004 to the Secretary

(Health), Union of India with a copy to the Chairman, UPSC, with a

request to withhold the recommendations of the DPC held in January,

2004. However, no communication was received by him regarding his

representation. When the list of successful promotees was released on

17th September, 2004, respondent no.1 found that he was excluded

from the list. Respondent No.1 also contended that he had learnt from a

very reliable source that the DPC for promotion excluded his most

recent years of ACRs i.e. 2001-02 & 2002-03 from consideration in its

meeting held in January, 2004 and they only took into consideration

the 5 ACRs preceding the years upto 2000-01, the requirement being

four "very good" entries out of the five ACRs. In the circumstances,

respondent No.1 prayed that the order dated 17th September, 2004 be

set aside and a change in the recruitment process be made from

"Selection" to "Non-selection" and also that all the past ACRs up to the

date of DPC meeting be considered and that the respondent No.1 be

promoted to the post of Director Professor w.e.f. 17th September, 2004

or from any other date deemed fit by the Court.

4. Original application filed by respondent No.1 was contested by

the petitioners, inter-alia, on the ground that the DPC was held on 9th

January, 2004 for consideration of eligible officers for promotion against

27 vacancies. After examining the Character Rolls of the eligible officers,

the DPC recommended 13 candidates for the vacancies belonging to

period of 2002-03 and 14 candidates for vacancies of the period of

2003-04 for promotion to the Super time grade of Director Professor in

the Teaching Sub cadre of CHS. The name of respondent No.1 was not

recommended for promotion. It was also contended that the

representations of respondent No.1 were considered. It was further

asserted that the fixation of minimum criteria of "Very Good" or better

entries for promotion was neither arbitrary nor was any injustice, as

alleged by respondent No.1, been done. It was also contended on behalf

of the petitioners that the method of recruitment by selection (seniority-

cum-merit) was not invalid and could not be set aside on the grounds

canvassed by the respondent no.1.

5. The Tribunal decided the original application of the respondent by

order dated 3rd December, 2009 which is impugned by the petitioners

on the grounds that the DPC considered the promotion in the Super

time grade of Director Professor, where the benchmark was fixed as

`very good‟. As respondent No.1 was not found eligible due to

downgraded ACRs, he was not recommended for promotion. Relying on

„Abhijit Ghosh Dastidar v. Union of India & Ors.(supra), and Dev Dutt v.

Union of India & Ors. (2008) 8 SCC 725, the Tribunal held that the

ACRs of respondent No.1 which were below the benchmark and which

were not communicated to him, are to be ignored and on the basis of

the available record, reconsideration is to be made and thus, the

Tribunal allowed the application of respondent No.1 directing the UPSC

to convene a review DPC and re-consider the case of respondent No.1.

6. The order of the Tribunal is contested by the petitioners

contending, inter-alia, that the ACRs of respondent No.1 which were

below the benchmark cannot be ignored and review DPC cannot be

directed to reconsider the case of respondent No.1, after taking into

consideration the available record and ignoring the ACRs having

grading below the bench mark and which were not communicated to

the respondent no.1. Learned counsel has contended that the ACRs

wherein the grading was below the benchmark could, at best, be

intimated to respondent No.1 with the right to make a representation

and in case of upgradation of the ACRs on consideration of

representations, the review DPC can be convened for considering

respondent No.1 for promotion to the post of Specialist Grade-I in the

Teaching Faculty as Director Professor on the basis of the revised ACRs,

if any. The learned counsel for the petitioners has relied on the decision

of a Division Bench of this Court reported as Union of India & Ors. v.

Krishna Mohan Dixit and Ors., Manu/DE/2660/2010.

7. This Court had issued a show cause notice only to respondent

No.1 by order dated 20th July, 2010. However, Mr.Naresh Kaushik,

Advocate, had also appeared on behalf of the UPSC, respondent No.29.

The show cause notice was again served on respondent No.1 on 1st

November, 2010, however, no one had appeared on behalf of

respondent No.1 on 9th November, 2010. This Court, therefore, had

directed to the Registry to transmit to respondent No.1 by Electronic

means i.e. e-mail that the next date of hearing fixed is 4th January,

2011 at the e-mail address of respondent No.1, being

[email protected] On 4th January, 2011, no one had again

appeared on behalf of respondent No.1 and the matter was adjourned at

the request of learned counsel for the petitioners to file an appropriate

affidavit regarding serving of notice on respondent No.1.

8. An affidavit of Mr.R.P.Sati had been filed categorically deposing

that notice dated 1st November, 2010 was handed over to respondent

No.1. Relying on the affidavit filed on behalf of the petitioners, it was

held that respondent No.1 had been served but no one had been

present on behalf of respondent No.1. The matter was not heard on 9th

February, 2011 and was ordered to be listed on 15th March, 2011.

Thereafter, the matter was taken up on 15th March, 2011, 24th May,

2011, 17th August, 2011 and today, however, no one has appeared on

behalf of respondent No.1. In the circumstances, the matter is taken up

for hearing and final disposal.

9. This has not been disputed that a Division Bench of this Court in

Krishna Mohan Dixit & Ors. (supra) had held, after considering the

facts and circumstances and scope of the orders of the Supreme Court

in „Abhijit Ghosh Dastidar v. Union of India & Ors. (supra), and Dev

Dutt v. Union of India & Ors. (supra), that if the gradation in the ACR is

below the benchmark then that ACR is not to be ignored, but such ACR,

on account of being below the benchmark, has to be communicated to

the concerned employees with the right to make a representation

against the below bench mark grading to the concerned authorities. On

consideration of the representation, if the ACR is upgraded, then a

review DPC is to be convened to re-consider the case of such an

employee.

10. In Krishna Mohan Dixit & Ors. (Supra), which has been followed

by other Benches of this Court as well, it was held that in view of the

judgment delivered by the Supreme Court in the case of State of UP &

Anr. v. Synthetics and Chemicals Ltd. and Anr. MANU/SC/0616/1991

which is also followed in Dev Dutt‟s case and Abhijit Ghosh Dastidar‟s

case (Supra), all the ACRs are to be communicated to the incumbent. It

was further held that wherever the ACR is below benchmark, a

representation can be made by the affected person, which would then

be considered by the competent authority, which inturn would not be

the same authority who gave the adverse ACR, but would be by an

authority above it. In case of a person who is already in service, the

question of ignoring the adverse ACRs instead of giving a chance of

making the representation does not arise.

11. Learned counsel for the petitioners, on instructions, also states

that in view of Krishna Mohan Dixit and Ors. (Supra), the ACRs of

respondent No.1 having the grading below the benchmark of `very good‟

for the relevant years, which were considered by the DPC, shall be

communicated to respondent No.1. Respondent No.1 may have the

liberty to make a representation against those ACRs which have grading

below the benchmark, which representations, if any, would be

considered in accordance with law laid down by this Court. If on

consideration of the representation, the ACRs of respondent No.1 would

be upgraded, then in that case a review DPC would be convened and

the case of respondent No.1 would be re-considered for promotion in

accordance with rules and regulations.

12. The pleas and contentions of the petitioners are not refuted by

the learned counsel for respondent No.29 and no one is present on

behalf of respondent No.1.

13. For the foregoing reasons and in the facts and circumstances and

the law laid down by the Supreme Court and the decisions considered

hereinbefore, the writ petition is allowed and the impugned order dated

3.12.2009 passed in O.A. No. 951/2005 directing the petitioners to

ignore the ACRs which were below the bench mark of `very good‟ is set

aside. The petitioners are directed to communicate to the respondent

No. 1 the ACRs which were below the bench mark of `very good‟ for the

relevant years, which were considered by the DPC for recommendation

for promotion. On receipt of communication of the below bench mark

ACRs, the respondent No. 1 shall be entitled to make representation(s)

within four weeks. On consideration of the representation(s) of the

respondent No. 1 by the concerned authorities, as has been held in the

judgments discussed hereinbefore, if the ACRs of the respondent No. 1

shall be upgraded, then in that case, the petitioners shall conduct

review DPC of the respondent, taking into consideration the upgraded

ACRs. The review DPC, in that case, if finds the respondent no.1 eligible

for promotion, then it shall recommend him and notional promotion

shall be given to the respondent no.1 with retiral benefits for the said

post as the respondent no.1 has already taken voluntary retirement.

With these directions, the writ petition is disposed of. Interim order

dated 20.07.2010 is vacated and all the pending applications are also

disposed of. Parties are, however, left to bear their own costs.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

September 05, 2011.

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