Delhi High Court
Arvind Kumar Sharma vs Ircon International Limited on 6 October, 2016
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 06.10.2016
+ W.P.(C) 2308/2014
ARVIND KUMAR SHARMA ..... Petitioner
Through: Ms. Jyoti Singh, Sr. Adv. with Mr.
Vinod Shukla and Ms. Tinu Bajwa, Advs.
versus
IRCON INTERNATIONAL LIMITED ..... Respondent
Through: Mr. A.G. Nagrath and Mr. Anish Kumar,
Advs.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
W.P.(C) 2308/2014 & CM No. 2306/2015
1. This writ petition seeks following reliefs:
"..... a) Issue a writ, order or direction in the nature of
mandamus, directing the respondent to re-check the answer-
sheet of the petitioner of paper no.1 of DPC-2005 and
promote him to the post of DGM/Civil w.e.f. 1.7.2005;
b) Issue a writ, order or direction in the nature of mandamus,
directing the respondent to correct/upgrade the ACRs of the
petitioner for the assessment years 2002-03 to 2004-05 (3yrs),
2006-07 to 2007-08 (2yrs) and 2009-10 to 2011-12 (3yrs);
c) Issue a writ, order or direction in the nature of mandamus,
directing the respondent to promote the petitioner to the post
of JGM/Civil w.e.f. 1.7.2010 as his juniors have already been
promoted on 1.7.2011;
d) issue any such other writ, order or direction, as this Hon'ble
Court deems appropriate and fit in the facts and circumstances
of the case; and
e) award the costs of the present Writ Petition...."
2. Insofar as prayer (a) is concerned, it seeks re-checking of the answer-
sheet after 11 years of the certain results having been declared and the
petitioner was not promoted to the post of DGM/Civil. There is no
document on record which shows that the petitioner had made any
representation against his non-promotion in the aforesaid exercise carried
out in 2005. There is an inordinate delay of over a decade which cannot be
ignored, and hence the aforesaid prayer cannot be considered. The same is,
accordingly, rejected.
3. Apropos prayer clause (b) the petitioner seeks correction/ upgradation
of his ACRs, copies of which were provided to him in the year 2010 and
2011 against which he has made representations. The said representations
were disposed off by the respondent on the ground that the officers, who
could have reviewed the ACRs of the petitioner, have since superannuated.
The representations have been only technically responded to and not on
merits or disposed off in substance.
4. Ms. Jyoti Singh, the learned Senior Advocate for the petitioner relies
upon the judgment of the Supreme Court in the case of Dev Dutt vs Union
of India & Ors. (2008) 8 SCC 725, particularly paragraphs 36 & 37 thereof,
which reads as under:
"..... 36. In the present case, we are developing the principles
of natural justice by holding that fairness and transparency in
public administration requires that all entries (whether poor,
fair, average, good or very good) in the Annual Confidential
Report of a public servant, whether in civil, judicial, police or
any other State service (except the military), must be
communicated to him within a reasonable period so that he
can make a representation for its upgradation. This in our
opinion is the correct legal position even though there may be
no Rule/G.O. requiring communication of the entry, or even
if there is a Rule/G.O. prohibiting it, because the principle of
non-arbitrariness in State action as envisaged by Article
14 of the Constitution in our opinion requires such
communication. Article 14 will override all rules or
government orders.
37. 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...."
5. The above dicta has also been relied upon by this Court in Union of
India vs V.S. Arora 2012 (8) AD (Delhi) 365. This Court had further
examined the issue in WP(C) 6013/2010 viz. Union of India vs Krishna
Mohan Dixit decided on 08.10.2010 and was further referred to in judgment
dated 14.02.2012 passed in WP(C) No. 1247/2011, titled: UOI and Anr. Vs
K.M. Priyadarshanan. In K.M. Priyadarshanan (supra) wherein it was
observed:
"Wherever the ACRS are below bench mark, a
representation can be made by the affected person which will
then be considered by the competent authority and in any
case, not by the same authority which gave the adverse ACR
but by an authority above it".
The Court further held that since the reviewing or reporting officer
had retired, in view of the decision in Krishna Mohan Dixit (supra) case,
the impugned entries in the ACR, would be of no consequence because the
representation against them would have to be considered by the higher
authority.
6. In the present case, the circumstances are the same i.e. the reporting,
reviewing and accepting authorities have retired, hence the case will now be
considered by the next higher authority. The learned counsel for the parties
are in consonance with each other on this issue.
7. Accordingly, the next higher authority in the respondent corporation
will endeavour to complete the aforesaid exercise by the end of this year.
Only those ACRs, which would have an effect upon the petitioner's
promotion, would be reviewed by the next higher authority, in view of the
representations made by the petitioner. On the ACRs being reviewed, the
same shall be taken into account for the next promotion, whenever the
exercise for it is undertaken. As a sequitur, if the ACRs of the petitioner are
upgraded, making him eligible for consideration for the next higher post,
along with his batch-mates, in the promotional exercise which was carried
out in the year 2013, then a review DPC for the same shall be held within
two months after the upgradation of the ACRs.
8. The writ petition is disposed off in the above terms.
NAJMI WAZIRI, J
OCTOBER 06, 2016/kk
