Delhi High Court

Charanjit Lal Khatri vs Secretary General, Rajya Sabha ... on 21 December, 2012

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 21st December, 2012

+                               LPA No.39/2012

       CHARANJIT LAL KHATRI                        ..... Appellant
                   Through: Mr. V.K. Rao, Sr. Adv.

                                   Versus

    SECRETARY GENERAL, RAJYA SABHA
    SECRETARIAT & ORS.                         ..... Respondents

Through: Mr. J.P. Sengh, Sr. Adv. with Ms. Sana Ansari, Mr. Sumit Batra & Ms. Ankita Gupta, Advs.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the judgment dated 8th November,

2011 of the learned Single Judge of dismissal of W.P.(C) No.1857/2011

preferred by the appellant, save for a direction to the respondent Rajya

Sabha Secretariat to take a fresh decision on the appellant‟s overall grading

in the Annual Confidential Report (ACR) for the period 1 st August to 31st

December, 2007 and his overall grading for the entire year 2007, in the light

of the observations in the judgment of the learned Single Judge.

2. Notice of the appeal was issued and the counsels have been heard.

The appellant joined the services of the respondent on 9th July, 1987 on the

post of Translator and was on 1 st April, 1997 promoted to the post of

Assistant Editor which post was subsequently re-designated as Editor and

yet subsequently as Assistant Director. It is the case of the appellant that he

on 1st October, 2010 became eligible for consideration for promotion to the

post of Deputy Director but was not so promoted and which led to the filing

of the writ petition from which this appeal arises, impugning the promotion

of one Ms. Punam Sahni to the said post and the order dated 28th April, 2010

communicating the below benchmark in the ACRs of the appellant and also

seeking promotion to the post of Deputy Director. During the pendency of

the writ petition also, respondents promoted others to the post of Deputy

Director and which promotions vide interim order in the writ petition were

made subject to the outcome of the writ petition. The appellant has since, on

attaining the age of superannuation on 30th April, 2011, retired from the post

of Assistant Director.

3. The counsel for the appellant has thus contended that the only benefit

of the present litigation which the appellant can now derive is of increased

pension.

4. The senior counsel for the appellant has confined his arguments to one

aspect only. Our attention has been drawn to Annexure A-18 to the appeal at

page 430 of paper book where an analysis of the appellant‟s ACR from the

year 2005 to 2010 is given and to the relevant Rule for promotion at page

455 of the paper book. The benchmark for promotion admittedly is "Very

Good" for the preceding five years; the preceding five years for the appellant

to be considered for promotion in the year 2010 would be the years 2005 to

2009. The overall rating of the appellant during the said years was as under:-

           Sr. No.               Year                       Rating
                    st                      th
             1.    1 January, 2005 to 30 June,                Fair

             2.    1st July, 2005 to 31st December,          Good

             3.    1st January, 2006 to 31st                 Good
                   December, 2006
             4.    1st January, 2007 to 31st July,        Very Good

             5.    1st August, 2007 to 31st The              rating    was
                   December, 2007                   expunged vide order
                                                    dated 2nd March, 2009
             6.    1st January, 2008 to 31st July,           Good




                  7.   1st August, 2008 to 31st                  Good
                      December, 2008
                 8.   1st January, 2009 to 31st              Very Good
                      December, 2009
                 9.   1st January, 2010 to 31st August,      Very Good

5. The contention of the senior counsel for the appellant is that the

overall rating is not truly representative of the rating/grading under different

heads/parameters in the respective year / period. With reference to the period

from 1st January, 2006 to 31st December, 2006, it is demonstrated that the

appellant was rated „cent percent‟ for Coverage; „fully accurate‟ for

Accuracy; „lucid and precise‟ for Style; „very good‟ for Command on

Language; „highly intelligent‟ and „very good general knowledge‟ for

Degree of Intelligence and General Knowledge; „highly disciplined‟ for

Amenability to Discipline; „highly punctual‟ for Punctuality in Attendance;

„totally committed‟ for the attribute of Commitment to the Task Assigned;

„completely devoted‟ for the attribute of Devotion to Duty; „warm relations

with all‟ for the attribute of Human Relations; „good‟ for the attribute of

Public Relations; „in high order‟ for the attribute of Intellectual Honesty,

Creativity and Innovative Qualities; and, „beyond doubt‟ for the attribute of

Integrity. It is argued that notwithstanding the same, the overall rating of

"Good" only and not "Very Good" has been given.

6. The senior counsel for the appellant has again taken us to the Rules

which do not make the overall rating as recorded in the ACR binding on the

Departmental Promotion Committee (DPC) and grant liberty to the DPC to

make its own assessment of the performance in any year on the basis of

various entries recorded in the ACR. The further contention of the senior

counsel for the appellant is that similarly for the remaining period of the

preceding five years under consideration, the appellant should have been

given overall rating/grading of "Very Good" instead of as given. It is

contended that the DPC however did not consider the said aspect. Attention

in this regard is invited to the minutes of the meeting of the DPC held on 4 th

November, 2010 at page 373 of the paper book which relating to the

appellant are as under:-

"23. Accordingly, Shri Charanjit Lal Khatri was provided a copy of the below benchmark ACRs for the relevant years and he represented against the below benchmark gradings given to him by his Reporting/Reviewing Officers vide representation dated 7th May, 2010. The Secretary-General, however, taking into account the comments of the Reporting/Reviewing Officers sought from them on the representations of Shri Charanjit Lal Khatri vide his order dated 12th October, 2010, did not find any scope for

upgradation of the below benchmark gradings in the ACRs of relevant period in respect of Shri Charanjit Lal Khatri.

24. The Committee was also informed that there is no vigilance/disciplinary case either pending or being contemplated against the above mentioned individual.

25. The Committee considered the ACRs and service records of Shri Charanjit Lal Khatri and after perusal observed that he does not fulfill the requisite benchmark of "Very Good" for promotion and according did not recommended him "fit" for in situpromotion to the grade of Deputy Director (E&T)."

7. It is the contention of the senior counsel for the appellant that the DPC

in relation to the appellant only considered the overall rating and not the

rating/grading against individual entries. The relief in this appeal is confined

only to a direction to the DPC to review the minutes of the meeting dated 4 th

November, 2010 & 11th February, 2011 in accordance with Rule 5.9.1 (ii)

i.e. by making its own assessment of the performance of the appellant in the

relevant years on the basis of various entries recorded in the ACRs for the

said years. The counsel for the appellant has also shown to us the minutes of

the DPC relating to others where ratings against separate entries were

considered by the DPC to make its own assessment and promotion was

granted even where the overall rating in the ACRs did not make the

candidates eligible for promotion. A direction for a similar exercise to be

done qua the appellant is sought.

8. The senior counsel for the respondent has contended that the appellant

has argued on the basis of entries in the ACR for one period only and not

qua ACRs for the remaining period. It is shown that the ratings for separate

parameters / ingredients / entries for the remaining period are not as good

and in fact the appellant has also been rated „below normal‟ against degree

of intelligence and general knowledge; „not punctual‟, „not up to mark‟ on

the attribute of commitment to the task assigned; and, „below normal‟ on the

attribute of devotion to duty.

9. The senior counsel for the appellant rejoins by contending that the

appellant is merely seeking a review.

10. Though the minutes of the meeting of the DPC held on 4 th November,

2010 and 11th February, 2011 do not expressly record that the individual

entries recorded in the ACRs were also seen but at the same time there is

nothing to suggest that the same were not so seen. The presumption is that

the members of the DPC assessed the various entries recorded in the ACR

and did not find any reason to differ from the overall grading/rating recorded

in the ACRs. It may also be mentioned that it is only where the DPC, on the

basis of various entries recorded in the ACRs differs from the overall

grading recorded in the ACR that the mention thereof would be found and

not where the DPC does not so differ. Analogy can be drawn with the orders

of the Disciplinary Authority. The Supreme Court in National Fertilizers

Ltd. Vs. P.K. Khanna (2005) 7 SCC 597 reiterated that the Disciplinary

Authority is required to give reasons only when the Disciplinary Authority

does not agree with the findings of the Inquiry Officer; when the Punishing

Authority agrees with the evidence of the Inquiry Officer and accepts the

reasons given by him in support of such findings, it is not necessary for the

punishing authority to again discuss the evidence and come to the same

findings as that of the Enquiry Authority and give the same reasons for the

findings. Even in Sarat Kumar Dash Vs. Biswajit Patnaik 1995 Supp (1)

SCC 434, it was held that appointing authority when accepting the

recommendation of the Public Service Commission need not again record

reasons for accepting the recommendations.

11. We have enquired from the senior counsel for the appellant whether

any pleas of mala fide in the matter of recording of ACR or of vindictiveness

against the appellant were made. He fairly states that such a plea only

against one of the Reviewing Officer for one period was taken and which

has also not been established before the learned Single Judge.

12. We, in exercise of power of judicial review are incompetent to sit in

appeal over the overall gradings given by the Reporting and Reviewing

Officers who have written the ACRs of the appellant for the various years.

We also are of the opinion that for this Court to issue a direction for review

as sought, it is necessary first to record a finding of disagreement with the

overall ratings and for which we do not find any case to have been made out.

It is well-nigh possible that a candidate individually and separately assessed

on different parameters may be "Very Good" but the overall impact and

effect or the working may still be "Good" and not "Very Good". The

composite evaluation has to encompass consideration of several elements

which transcend or go beyond the individual qualities. A comparison can be

made with assessment of beauty in this regard; perfect individual facial

features (on their own respective parameters) do not always make a beautiful

face. Aristotle said "the whole is more than the sum of its parts. The point

can be brought home also from the following-

i. Perfect ingredients don‟t guarantee a perfect dish; ii. presence of popular stars can't make a movie great; iii. presence of eleven skilled cricketers would not necessarily make a highly successful cricket team.

We are therefore of the opinion that no case for remanding the matter also is

made out. If this Court were to start interfering with the decision of the

members of the DPC and the Reviewing Officer on asking, it would open

the flood gates of litigation and make the whole process unmanageable.

13. The evaluation of an employee for the purpose of granting promotion

is a subjective exercise requiring powers of insight, perception, discernment

and reflection and which cannot be reduced to a simple mathematical

formula requiring the mere addition of the attributes he has been marked

upon. We must remember that such an exercise entails not only a

consideration of the merits of the concerned candidate but also his

„suitability‟ for the post. The observations of the Supreme Court in State

Bank of India Vs. Mohd. Mynuddin (1987) 4 SCC 486, can be profitably

perused in this regard:

"The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds scientific, technical, financial,

industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer."

The Courts thus cannot adopt a hyper-technical approach and insist that the

overall grading must be strictly identical to the individual marking on the

various attributes. Such selections with their attendant subtleties, niceties

and nuances involve a substantial „subjective‟ element and the same cannot

be reduced to a cut and dried mechanical formula. It is imperative that the

Courts permit the concerned Committee some flexibility, some play in the

joints, so as to enable a meaningful completion of the task of

selection/promotion.

14. The Division Bench of this Court recently in Sri Jagmohan Singh

Negi Vs. Union of India MANU/DE/1903/2011 also faced with a similar

argument held that if for approximately half period, different attributes

graded are 'Adequate', 'Just Average', 'Average' or 'Satisfactory' and for the