Union Of India And Ors vs Haldhar Prasad
2012 Latest Caselaw 4246 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment delivered on: 18.07.2012

+W.P.(C) 3937/2012


UNION OF INDIA AND ORS                                       ... Petitioners


                                    versus

HALDHAR PRASAD                                              ... Respondent

And

W.P.(C) 3970/2012


HALDHAR PRASAD                                               ..... Petitioner

                                    versus


UNION OF INDIA AND ORS                                    ..... Respondents
Advocates who appeared in these cases:
For the Petitioner in WP(C)3937/2012 and for the
Respondent in WP(C)3970/2012                          : Dr Ashwani Bhardwaj

For the Respondent in WP(C)3937/2012 and for the
Petitioner in WP(C)3970/2012                          : Mr S.K.Gupta


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



WP(C) No.3937 & 3970 of 2012                                            Page 1 of 5
                                 JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. Both the writ petitions are taken up together as they arise out of the

very same order dated 17.11.2011 passed in O.A. No.2437/2011 by the

Central Administrative Tribunal, Principal Bench, New Delhi.

2. Dr Haldhar Prasad was aggrieved by the fact that he was not granted

promotion to Senior Administrative Grade inasmuch as he was found unfit

on account of below benchmark ACRs in the DPC held in September,

2009. Subsequently the below benchmark ACRs were communicated and

Dr Prasad submitted a representation against the same. The representation

was considered and it was decided by the competent authority (GM,

Eastern Railway) to upgrade certain gradings, the details whereof are as

follows:-

          Year ending               Earlier              Revised Grading

         March 2005 I                Good                   Very Good

         March 2005 II               Good                    No change

          March 2006                 Good                   Very Good

         March 2007 I                Good                   Very Good

3. Insofar as the DPC for the next promotion in the next year was

concerned, these upgraded ACRs were placed before the said DPC and Dr

Prasad was found fit for the promotion to Senior Administrative Grade.

However, Dr Prasad wanted his promotion w.e.f. 2009 when he was earlier

found 'unfit' by the DPC convened in that year on the ground of below

benchmark ACRs which were subsequently upgraded.

4 The fact of the matter is that the below benchmark ACRs had not

been communicated to the said Dr Prasad. Consequently, the Tribunal, after

considering the rival contentions of the parties allowed the O.A. of Dr

Prasad and directed the petitioner herein to hold a review DPC in respect of

the year 2009 to consider the applicant for promotion to the post of Senior

Administrative Grade and if the recommendations of the review DPC were

that the said Dr Prasad was fit, he may be promoted from the date his

immediate junior was promoted. The Tribunal also directed that Dr Prasad

would not be entitled to actual wages but his pay would be notionally fixed

on the promotional post. We may point out that Dr Prasad has filed his writ

petition in respect of this part of the order whereby he was given notional

pay and not actual wages.

5. We have heard counsel for the parties at some length. We find that

the below benchmark ACRs had not been communicated. The Supreme

Court in Dev Dutt vs. Union of India and Ors., (2008) 8 SCC 725, was of

the opinion that the non-communication of ACRs would be arbitrary and as

such would be violative of Article 14 of the Constitution of India. That

decision had come on 12.05.2008. After that, it was well known that the

below benchmark ACRs ought to have been communicated before they

were to be considered against the incumbent. The fact that they were not

communicated, and, it is because of that Dr Prasad was found unfit in the

DPC held in 2009, meant that the valuable rights of Dr Prasad had been

violated. Consequently the Tribunal has provided relief to Dr Prasad by

directing that a review DPC be constituted particularly in view of the fact

that subsequently those very below benchmark ACRs have been upgraded

by the competent authority.

6. We see no reason to interfere with this finding of the Tribunal. We

also see no reason to alter the direction given by the Tribunal that in case

Dr Prasad is found fit for promotion to the post of Senior Administrative

Grade, he would be paid actual wages. The Tribunal was right in directing

that his pay would be fixed notionally on the promotional post.

7. In view of the foregoing, both the writ petitions are dismissed. There

shall be no order as to costs.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J JULY 18, 2012 mk