Delhi High Court
P.C. Garg vs Union Of India on 7 September, 2016
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Dated: 07th September, 2016
+ W.P.(C) 3774/2015
P.C. GARG ..... Petitioner
Through : Dr. Ashwani Bhardwaj, Advocate
versus
UNION OF INDIA ..... Respondent
Through : Mr. Sanjeev Narula, CGSC with
Mr. Ajay Kalra and Mr. Abhishek
Ghai, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
1. The present writ petition has been filed impugning the order dated
20.08.2014 passed by the Central Administrative Tribunal (in short the '
Tribunal') whereby the OA 484/2013 filed by the petitioner herein
stands dismissed. The petitioner/ applicant therein had filed the OA
being aggrieved by the rejection of his representation for re-examining
his ACRs for the years 2007-2008 and 2008-2009.
2. The petitioner joined the respondent in May, 1988 as Senior Research
Assistant („SRA‟), R & D as a direct recruit. He was promoted to the
post of „Under Secretary‟ on 07.12.2000. He became eligible for
promotion as Deputy Secretary on his completion of five years of service
on 01.01.2006. The petitioner was served a Memo dated 09.12.2010
inter alia communicating the below benchmark of the ACRs for the
period 2007-2008 and 2008-2009. The petitioner was graded as Good,
but since the benchmark for promotion was Very Good, thus the grading
given to the petitioner was below benchmark. The petitioner made a
representation to the respondent which was rejected by an order dated
28.01.2011. Aggrieved by the order of rejection, the petitioner
approached the Tribunal by filing an OA, which stands dismissed by the
Tribunal.
3. Mr. Bhardwaj, learned counsel for the petitioner, submits that prior to
the downgrading of the ACRs, no show cause notice, memo or warning
was given to the petitioner. He further submits that the remarks in the
ACRs are vague in nature and lack details. The ACRs are not specific.
As far as the order by which the representation stands decided, Mr.
Bhardwaj submits that the order is a non-speaking order as it lacks
reasons and further it has been passed without any application of mind.
Another ground raised by the counsel for the petitioner is that the ACR
for the period 2008-2009 has been initiated by the Additional Secretary,
under whom the petitioner had never worked and thus, the Additional
Secretary had no opportunity to assess him. He submits that the ACRs
are to be filled in by a Competent Authority and not necessarily by a
higher authority.
4. Mr. Narula, learned counsel for the respondent has produced the original
file before us. Relying upon the notings in the original file, Mr. Narula
contends that the representation of the petitioner was duly considered
and upon consideration of the representation, the same was rejected. He
submits that the letter sought to be brought to the notice of the Court is
only a covering letter and reasons find mention in the note sheet which
has been produced. He further submits that the petitioner was not
downgraded and thus there was no necessity of issuing any warning or
show cause to the petitioner. The petitioner has been assessed as Good
which cannot be termed as downgrading. Learned counsel further
submits that the copies of the ACRs which have been filed on record
would show that the assessment of the officer is according to the
benchmarks which have been made and the Court cannot make an
assessment in proceedings under Article 226 of the Constitution of India.
He submits that the Court cannot sit as a court of appeal over the grading
which has been done by the Reviewing Officer and the Accepting
Authority. To this end, he has relied upon the judgment of this Court in
Mohan Chandra Bhatt v. UOI & Ors., 2006 (89) DRJ 88 (DB).
5. The learned counsel further submits that even otherwise post the
decision by the Supreme Court of India in the case of Dev Dutt v. Union
of India, (2008) 8 SCC 725 an opportunity was granted to the petitioner
to make the necessary representation.
6. At this stage, Mr. Bhardwaj, learned counsel for the petitioner submits
that the petitioner, prior to the two years when he was downgraded, had
been assessed as „Very Good‟ and post the period, he has again been
assessed as „Very Good‟ and „Outstanding‟. He submits that, as of now,
persons junior to him have been promoted while the petitioner on
account of the downgradation has not been promoted. He submits that
the remarks in the ACRs would show that there was nothing to show that
either there was lack of integrity on the part of the petitioner or that he
lacked knowledge in his field. He further submits that the petitioner
would be satisfied if a direction is issued to the respondent to reconsider
his representation fairly and in accordance with law; and the petitioner
would be willing to accept the final order which may be passed and he
waives his right to challenge the same.
7. We have heard the learned counsel for the parties and considered their
rival submissions.
8. From the pleadings on record, it transpires that the petitioner was
assessed to Very Good prior to years 2007-2008 and 2008-2009. After
he was assessed Very Good to Good, copies of the ACRs were supplied
to him and based on the judgment of the Supreme Court of India in the
case of Dev Dutt (supra), he was granted an opportunity to make a
representation. Accordingly, the petitioner had made a representation
dated 27.12.2010 seeking reconsideration of his ACRs. The said
representation was rejected by the respondents vide the memorandum
dated 28.01.2011. The letter memorandum reads as under:
" Please refer to your representation dated 27.12.2010
requesting for upgradation of ACRs grading for the periods
2007-08 and 2008-09.
2. The representation has been examined in terms of
DoP&T OM No.21011/1/2010-Estt(A) dated 13.04.2010 and the
same has not been accepted by the Competent Authority. No
change, therefore, has been effected in the subject ACRs.
3. This issues with the approval of Secretary."
9. While the covering letter by which the petitioner was informed about the
rejection of his representation is, no doubt, devoid of any reason; but we
have examined the original file which shows that the representation was
fully considered. The original record has been seen and returned. The
note dated 10.01.2014 would show that it was found that there was no
merit in the contention of the petitioner herein. Prima facie, we are of
the view that having regard to the fact that the petitioner had been
assessed as „Very Good‟ prior to the two years in question and again
assessed as „Very Good‟ and „Outstanding‟ post the period, while
considering his representation, the order should have revealed a greater
thought process of the competent authority. We say this for the reason
that copies of the ACRs which are on record would show that there is no
material against the petitioner except in the summing up remarks which
shows „[l]acks enthusiasm or the will to enrich his knowledge of the
subject assigned to him‟; while in his representation dated 27.12.2010,
he has categorically stated that he was studying and reporting the
Chemical and Biological Warfare („CBW‟) developments of the target
countries and he is the only Officer in the Division who has thoroughly
studied, developed and disseminated the information on CBW
programmes of various countries from time to time. He had dealt with
CBW issues successfully and was able to answer all the related queries
as this subject was still on his fingertips. We also say this for the reason
that for the period 2008-2009, the petitioner has submitted that ACRs
were filled in by the then Additional Secretary who had never had any
opportunity to assess him as the petitioner was not working under him;
which fact is, however, disputed by the counsel for the respondent who
submits that there is no bar and as per the OM in case the Reviewing
Officer is not available, the Additional Secretary would be competent to
write the ACRs. Controverting the same, the counsel for the petitioner
submits that the Initiating Officer was available and even then the ACRs
were filled in by the then Additional Secretary.
10. Having regard to the entire facts of this case and without being treated as
a precedent, we dispose of the present writ petition with the following
directions:
(i) The order/ memorandum dated 28.01.2011 by which the
representation of the petitioner stands rejected is set aside;
(ii) The representation of the petitioner would be reconsidered in the
light of the observations made by this Court;
(iii) The statement made by the petitioner, who is present in Court, is
taken on record that he would accept the final order which may be
passed and waives his right to challenge the same; and
(iv) We have no hesitation in saying that the representation of the
petitioner would be considered fairly by the concerned authorities.
11. The writ petition is disposed of accordingly.
CM.APPL 18084/2015
12. The application stands disposed of in view of the orders passed in the
present writ petition.
G.S.SISTANI, J
I.S. MEHTA, J
SEPTEMBER 07, 2016
//pst
