Si/ Ex. Rajeev Teotia vs Union Of India & Ors
2014 Latest Caselaw 5598 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment delivered on: November 10, 2014

+       W.P.(C) 2700/2012

        SI/ EX. RAJEEV TEOTIA                        ..... Petitioner
                        Through:     Ms. Rekha Palli, Ms. Garima
                                     Sachdeva and Ms. Shruti Munjal,
                                     Advocates
                        versus

        UNION OF INDIA & ORS                       ..... Respondents
                     Through:        Mr. Ankur Chhibber, Advocate

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI
                        JUDGMENT

KAILASH GAMBHIR, J

1. By this petition filed under Articles 226 and 227 of the

Constitution of India, the petitioner seeks i) a writ of certiorari for

quashing the Recommendation of the DPC held in January, 2012 denying

him promotion from the rank of Sub- Inspector / Exe. to Inspector/ Exe.

and ii) a writ of mandamus to the respondents to reconvene a DPC for

considering the case of the petitioner for promotion based on the

guidelines laid down in Circular No.23/2009 dated 04.11.2009.

2. In brief, the facts of the case are that the petitioner had joined

Central Industrial Security Force (in short 'CISF') as a Sub- Inspector on

20.01.2003 and is posted at Ranchi since then. The case of the petitioner

for promotion to the rank of Inspector/ Exe. was considered by the DPC

held in January, 2011 but despite fulfilling the eligibility criteria as laid

down in Circular No.23/2009 dated 04.11.2009, he was not promoted to

the said post. Subsequently, not finding his name in the list of selected

candidates although his batchmates were selected, the petitioner filed an

application dated 23.12.2011 to the Commandant, CISF Unit, for

providing him with the copies of his ACRs for the years 2006- 2008 so as

to ascertain whether he was not considered for promotion because of

these ACRs being below benchmark. The said request of the petitioner

was turned down by the respondents vide their reply dated 03.01.2012 on

the premise that as per the DoP&T Guidelines dated 14.05.2009, copies

of the ACRs w.e.f. 2009 only could be provided. Without the below

benchmark ACRs being made available to the petitioner, his case was re-

considered for promotion by the DPC held in January, 2012 but he was

again not selected by this DPC which took into consideration the revised

guidelines wherein the marks for various gradings in the ACRs were

considerably reduced and the petitioner's grievance is that he was put to a

great disadvantage as his case for promotion was considered on the basis

of revised guidelines while his batchmates got promoted on the basis of

the pre-revised guidelines dated 04.11.2009 pursuant to the DPC held in

the year 2011. It is also the case of the petitioner that after filing of this

petition, he was provided his below benchmark ACRs for the period

2007- 2008 with the direction that he can file a representation against

these adverse ACRs, if he so desires. It is also the grievance of the

petitioner that providing the said below benchmark ACRs at such a

belated stage is wholly meaningless as the case of the petitioner was

rejected twice by the DPC held in the year 2011 and year 2012 based on

the non-communicated ACRs for the period 2007 and 2008.

3. Addressing arguments on behalf of the petitioner, Ms. Rekha Palli,

the learned counsel submits that the case of the petitioner is squarely

covered by a judgment of this Court in the case of Union of India & Anr.

v. V.S. Arora & Ors., in W.P.(C) 5042/2002 decided on 31.05.2012. The

contention raised by the learned counsel for the petitioner is that in this

judgment the Division Bench of this Court after placing reliance on

various decisions of the Hon'ble Supreme Court and also of this Court,

took a view that the below benchmark ACRs which were not

communicated cannot be considered by the DPC and in such a situation,

the DPC has to consider the ACRs of the period other than below

benchmark ACRs of the period in question.

4. Refuting the case of the petitioner, Mr. Ankur Chhibber, the

learned counsel for the respondents took a stand that the petitioner was

not found fit for promotion by both the DPCs which were held in the

years 2011 and 2012 and the decision taken by the DPC was as per the

service record of the petitioner and also as per the applicable guidelines.

5. We have heard the learned counsel for the parties and given our

thoughtful consideration to the arguments advanced by them.

6. The main grievance of the petitioner in the writ petition is that the

two below benchmark gradings in the ACRs of 2007 and 2008 were not

communicated to the petitioner due to which he was denied promotion by

the DPC held in the year 2011 and the subsequent DPC held in the year

2012 and secondly he was put to a disadvantageous position vis-a-vis his

batchmates because of later revision in the guidelines where the marks for

various gradings in the ACRs were considerably reduced. The settled

legal position with regard to the non-communication of below benchmark

gradings stands crystallized by the judgment of the Apex Court in the

case of Dev Dutt v. Union of India & Ors., reported in 2008 (8) SCC

725 and the relevant para of the same is reproduced as under:

"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 bench mark or not. Even if there is no bench mark, 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.

14. In most services there is a gradation of entries, which is usually as follows:

(i) Outstanding

(ii) Very Good

(iii) Good

(iv) Average

(v) Fair

(vi) Poor

A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.

15. If we hold that only `poor' entry is to be communicated, the consequences may be that persons getting `fair', `average', `good' or `very good' entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).

16. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. `poor' entry) need to be communicated and not `fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or get some other benefit. For example, if the bench mark is that an incumbent must have `very good' entries in the last five years, then if he has `very good' (or even `outstanding') entries for four years, a `good' entry for only one year may yet make him ineligible for promotion. This `good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.

17. In our opinion, every entry in the A.C.R. 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 (supra)

that arbitrariness violates Article 14 of the Constitution.

18. Thus it is not only when there is a bench mark 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 principle 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."

7. This view taken by the two Judge Bench of the Apex Court also

received approval in the case of Abhijit Ghosh Dastidar v. Union of

India & Ors., reported in (2009) 16 SCC 146, decided by the three Judge

Bench of the Supreme Court. The relevant para of the same is

reproduced as under:

"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non- communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the

same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

8. By a recent judgment in the case of S.D. Dobhal v. Union of

India & Ors., in W.P.(C) No.452/2009 this Bench had the occasion to

come across a similar issue and after having examined the view taken by

the Division Bench in Union of India & Anr. v. V.S. Arora & Ors., in

W.P.(C) 5042/2002 decided on 31.05.2012 and Abhijit Ghosh Dastidar

v. Union of India & Ors., reported in (2009) 16 SCC 146, wherein it was

held that the mere fact that the adverse ACRs were not communicated to

the public servant or he was communicated about the same later or that it

was not decided by the Competent Authority, cannot be treated as non

est. The remedy in all such cases would be to provide an opportunity to

the public servant to file a fresh representation against his adverse ACRs

and the same should be decided by the Competent Authority within a

period of two months and thereafter the case is to be considered afresh

for promotion by the Review DPC. The Court also took a view that in the

event of upgradation of ACRs of the petitioner, his case shall be

considered for promotion retrospectively along with his entitlement for

seniority and grant of all other consequential benefits. The relevant paras

of this judgment are reproduced as under:

"35. It would be seen that in Sukhdev Singh case, the Supreme Court did not direct retrospective promotion of the appellant therein and unlike the view as taken in Abhijit Dastidar case by the Supreme Court it was held that it would be open to the appellant to make a representation to the authorities concerned for his retrospective promotion in view of the legal position stated. Nowhere has the Supreme Court held that non communicated adverse ACR could be treated as non est. Indeed, in Sukhdev Singh case (supra) the Supreme Court fully adopted and endorsed the reasoning and legal principles enunciated in Dev Dutt case (supra) and even while granting the final relief the Court preferred to observe the right of the public servant to make a representation against his adverse entry to the concerned authority and his right to a decision on such a representation.

36. In Dev Dutt case (supra) as well, the emphasis of the Supreme Court was on the communication of an ACR, irrespective of whether the entry was 'good', 'average' or 'fair', it was to observe the right to the public servant to make representation against an adverse entry to the concerned authority, and that the decision of the competent authority on such representation of the employee ought to be in a fair manner and within reasonable period.

37. We may also point out here that in Dev Dutt case, the grievance raised by the employee was that he was

not communicated about the 'good' entry of 1983- 1984, which was 'below benchmark grade' of 'very good' and the DPC in its meeting held on 16th December 1984 denied him the promotion because of the said non communication of the below benchmark grading. After discussing the legal position, the Court directed the respondents to communicate the 'good' entry to the appellant within a period of two months and accorded the appellant an opportunity to represent against the said entry. If he so choose, within a period of two months; the competent authority was to take a decision on such representation within a period of two months.

38. Dev Dutt (supra) further laid down that the representation made by the employee against an adverse entry in his ACR must be decided by an authority, higher than the one who gave the entry, otherwise in all likelihood the representation would be summarily rejected. Relevant para of Dev Dutt (supra) is extracted as under:-

"5. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal

from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."

39. As can be seen from the foregoing paras, the entire emphasis in the above judgments was first to inform the employee with regard to his grading, which is below benchmark and could come in the way of his promotion. Indeed, the Court went to the extent of conveying all sorts of gradings so that an employee can be made aware of his merits/demerits during the course of a particular year. Secondly, emphasis was to accord the right to an employee to file a representation and for such representation to be decided by an officer superior in rank to the officer who has assessed him in the appraisal report, so that his adverse ACR is not summarily rejected by the assessing officer.

40. In the present case, the petitioner was promoted

as Senior Commandant in the DPC held against the vacancy for the year 2011-2012. As per the case of the petitioner, he deserved this promotion to the post of Senior Commandant against the vacancy for the year 2004-2005 as in the DPC held in the month of April, 2005, his juniors were promoted to the said rank but he was denied promotion due to the said non- communication of "below benchmark'' grading for the years 1998-1999 and 2002-2003. The other grievance of the petitioner is that his representation dated 10.05.2010 was not decided by the competent authority, superior to the rank of the accepting officer, therefore, his two subsequent below benchmark grading ACRs for the period between 01.04.2003 to 31.03.2004 and from 01.04.2004 to 02.07.2004 be also considered as non est while considering his case for promotion by the Review DPC.

41 We note that the Supreme Court has neither taken the view nor implied that non-communicated ACR of an employee could be ignored, as if the same was never written or was non-est. Neither do we find this analogy in any of the DoPT Guidelines nor in the judgments of the Supreme Court. If the non-est argument is accepted, it would defeat the very rationale of the aforesaid judgments of the Supreme Court, which recognises the right of a government employee to be communicated an adverse ACR i.e. a rating lesser than the highest, so that if aggrieved, he could file a representation before the competent authority, and in case there is an erroneous decision at the end of the officer entrusted to appraise his

report, the same can be rectified by the officer superior in rank to the accepting officer and thereafter, his case for promotion could be placed before the Review DPC. However, if we accept the reasoning as suggested by the counsel for the Petitioner, then an officer against whom there may be serious charge/complaint with regard to his performance, conduct, behaviour, efficiency and potential etc., he would be promoted simply because his adverse ACR was not communicated to him/her or was not decided by the competent authority or for some other similar reason. In our considered view, such a situation will have deleterious effect on the entire scheme of service promotions because in such cases, an officer may be rewarded with promotion despite the fact that he is not upto the requisite mark, on the parameters of his performance, conduct, behaviour, efficiency and potential, etc. In such like cases of non-communication of below benchmark grading in the ACR or where the representation is not decided by the officer superior to the rank of Accepting Officer, there would be postponement in the decision of Departmental Promotion Committee as ultimately if the representation is decided in favour of such an employee then he will get the promotion retrospectively with all other consequential benefits. For the aforesaid reasons, we are not persuaded by the contention of the learned counsel for the petitioner to let the case of the petitioner be placed before the Review DPC, by treating the said adverse ACRs for the years 1998-1999 and 2002-2003 as if they were never

written, because of their non-communication to the petitioner."

9. In the light of the aforesaid legal dicta and the view taken by this

Bench in the case of S.D. Dobhal v. Union of India & Ors (supra) , we

deem it apposite to issue certain directions to the respondents, the same

are as under:

i) Let the petitioner file a fresh representation challenging his below benchmark grading in the ACRs for the period 2007- 2008 and the same shall be considered and decided by the Competent Authority as per the applicable guidelines of the relevant period within a period of four weeks from the date of this judgment; and

ii) In the event of up-gradation of his adverse entries, the appellant shall be considered for promotion retrospectively by the Review DPC within a period of two months thereafter and if he gets selected for promotion retrospectively, then he shall be entitled to seniority from such date and to arrears of pay and all other consequential benefits.

10. With the aforesaid directions writ petition is allowed. No costs.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

NOVEMBER 10, 2014 v