Indian Council Of Agricultural ... vs Dr. J.P. Sharma
2012 Latest Caselaw 4825 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on: 17.08.2012

+       W.P.(C) 2535/2011

INDIAN COUNCIL OF AGRICULTURAL RESEARCH & ANR
                                 ... Petitioners


                                       versus

DR. J.P. SHARMA                                        ... Respondent
Advocates who appeared in this case:
For the Petitioner           : Mr Sanjay Kumar Singh for Mr Gagan Mathur
For the Respondent           : Mr Padma Kumar S with Mr K.K. Mishra


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL


                                 JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. The petitioner is aggrieved by the order dated 13.07.2009 passed in

O.A. No.1564/2008 by the Central Administrative Tribunal, Principal

Bench, New Delhi. The petitioner is also aggrieved by the order dated

10.09.2010 passed by the said Tribunal in R.A. No.245/2010 whereby the

petitioner's review application was dismissed.

2. The respondent Dr J.P. Sharma was a Senior Scientist working with

Indian Agricultural Research Institute (IARI) which functions under the

Indian Council of Agricultural Research (ICAR), Krishi Bhawan, New

Delhi. The said respondent had joined the IARI in 1980 as a Scientiest and

having obtained the Ph.D. degree was promoted and became a Senior

Scientist in the pay scale of `12000-18300 w.e.f. 01.07.1996.

3. Recommendations had been made by the VIth Central Pay

Commission which included a recommendation for Career Advancement.

Thereafter, a scheme for Career Advancement of Agricultural Research

Services (ARS) scientists under ICAR was brought out by the Government

by letter dated 19.07.2000 w.e.f. 01.01.1996. The criteria for promotion of

Senior Scientist to the post of Principal Scientist in the pay scale of `16400-

22400 included completion of 8 years of service as well as contribution in

the field of research and academics. The promotion had to be treated as

personal regardless of the existence of sanctioned posts. That being the

case, the applicant who had completed 8 years of service on 30.06.2004

was eligible to be considered for promotion as Principal Scientist.

4. The promotion to the position of Principal Scientist, under the said

scheme was to be done on the recommendations of the ASRB (Agricultural

Scientists Recruitment Board) on the basis of a marking scheme whereby a

maximum of 60 marks were to be awarded for research potential; 30 marks

(max) for confidential reports and 10 marks (max) for the interview,

thereby totaling 100 marks (max). The break-up of the marking scheme

was as under:-

            "             Item                           Score

            (a)           Research Potential         -   60
                          (which should be graded
                          as
                  (i)     Specific Achievement       -   30
                  (ii)    Publication                -   20
                  (iii)   Participation in
                          Seminar etc                -   05
                  (iv)    Awards/distinction         -   05

            (b)           Confidential Reports       -   30
                          (For last 8 years on the
                          scale of outstanding-4,
                          Very Good-3, Good-2,
                          Average-1)

            (c)           Interview                  -   10

            Total Score                              -   100"

5. The respondent was considered for promotion to the level of

Principal Scientist on 11.08.2005. However, by a letter dated 27.09.2005

he was informed that he was not granted the said promotion. Subsequently

by a communication dated 19.03.2007 he was informed that the overall

grading in his ACR for the period 01.04.2005 to 31.03.2006 was 'average'

and this was being communicated to him to enable him to improve his

grades but that no representation would be entertained. Despite this, the

respondent sent a representation dated 01.06.2007 followed by another one

of 19.06.2007 and submitted that the "below benchmark" ACRs which

have not been communicated should not be taken into account and a review

DPC should be convened to reconsider his promotion. Subsequently, by a

letter dated 18.10.2007 the respondent was informed that it was not correct

to say that his promotion had not been recommended by the ASRB on

account of the 'average' ACR but that his marks for research potential and

personal interview were also taken into consideration and because he did

not secure the minimum qualifying marks of 75, he was not promoted.

6. The marks obtained by the respondent were as under:-

                Research Potential    -     33
                ACR                   -     14
                Personal Interview    -     05
                Total                 -     52

7. Thus, the respondent had obtained 52 marks out of marks of 100

when he was required to reach the minimum marks of 75 for the purpose of

promotion to the grade of Principal Scientist under the Career

Advancement Scheme.

8. After considering the arguments advanced by the learned counsel for

the parties on both sides, the Tribunal came to the conclusion and issued the

following directions:-

"13. In view of the above, we direct the respondents to take up the case of the applicant for selection against the subsequent year for promotion as Principal Scientist under the Career Advancement Scheme. They shall communicate to him the gradings below the benchmark that may have been awarded in the ACRs that are to be taken into consideration for the purpose. After the representation, if any, received within the time stipulated has been decided, the case of the applicant for promotion as Principal Scientist shall be considered and orders passed by the competent authority at the earliest. This exercise be completed preferably before the superannuation of the applicant but not later than three months from the date of receipt of a certified copy of this order. In case the applicant is granted promotion, the consequent service and monetary benefits as well as arrears of the retiral dues shall be extended to him accordingly."

9. The learned counsel for the petitioner submitted before us that since

the respondent had not been 'eliminated' from consideration, there was no

question of communication of the so-called 'below benchmark' ACRs to

the respondent and, therefore, the ratio of the Supreme Court in Dev Dutt v.

Union of India & Ors.: (2008) 8 SCC 725 would not apply to the facts of

the present case.

10. We have examined the decision of the Supreme Court in the case of

Dev Dutt (supra). The following observations of the Supreme Court are

relevant:-

"13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or "average" or "fair" entry certainly has less chances of being selected than a person having a "very good" or "outstanding" entry.

........

........

........

17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the

assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution.

18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principles of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."

11. It is apparent from the above extracts that not just 'poor' or 'adverse'

entries but every entry relating to an employee under the State or an

instrumentality of the State must be communicated to him, within a

reasonable time and it makes no difference whether there is a benchmark or

not.

12. The learned counsel for the petitioner has contended, as noted above,

that since there was no benchmark prescribed and that the respondent had

not been 'eliminated' because of his 'average' ACR, the ratio in Dev Dutt

would have no application and there was no need to communicate the said

ACR to the respondent. We cannot agree with this submission made by the

learned counsel for the petitioner. It must be seen that although there is no

benchmark prescribed insofar as the ACRs are concerned, the fact that the

ACRs themselves have been considered and marks have been awarded on

the basis of whether the ACRs were 'outstanding', 'very good', 'good' or

'average', the ACR would definitely have a bearing on the total marks

which a candidate would receive. In the present case, we find that ACRs

which are considered to be as 'outstanding' are given 4 marks, ACRs which

are 'very good' are given 3 marks, 'good' ACRs are given 2 marks and

'average' ACRs are given 1 mark. Any ACR whether it is 'outstanding',

'very good', 'good', or 'average', even if there is no benchmark,

contributes to the total under the heading of ACR and, consequently,

towards the total marks that are awarded to an applicant by the ASRB.

Therefore, the marks awarded in the ACR have a definite bearing on the

recommendation made by the ASRB for promotion of a candidate to the

position of Principal Scientist.

13. It was next contended by the learned counsel for the petitioner that in

the year in question, the respondent had obtained 14 marks under the head

of ACR and a total of 38 marks for research potential and personal

interview. Thus, even if the maximum mark of 30 were added to the figure

of 38, the applicant would still only get 68 marks which was below the

minimum requirement of 78 marks. Therefore, according to the learned

counsel for the petitioner the direction given by the Tribunal with regard to

the communication of the below benchmark ACRs was of no consequence.

This argument is not tenable and we agree with the learned counsel for the

respondent that the direction that has been given by the Tribunal is to

consider the case of the respondent for selection against a 'subsequent' year

for promotion as Principal Scientist under the Career Advancement

Scheme. It is quite possible that in the subsequent year the respondent gets

an entirely different set of marks under the categories of research potential

and personal interview and, therefore, the marks that he would obtain in the

ACR would definitely be material.

14. From the impugned order we find that the ASRB convenes twice in a

year. Therefore, we consider it appropriate to hold that the directions given

by the Tribunal with regard to consideration of the respondent's case

should be put up before the next meeting of the ASRB, which would, in

any event, not be beyond six months because it convenes twice a year.

15. Consequently, in all other respects, we see no reason to interfere with

the direction given by the Tribunal. The writ petition is dismissed. There

shall be no order as to costs.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J AUGUST 17, 2012 dn