S.K.Shah vs Union Of India & Ors.
2017 Latest Caselaw 4605 Del

10

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  WP(C) 1156/2017

                                      Date of decision: 30th August, 2017


      S.K.SHAH                                       ..... Petitioner
                         Through: Mr.Padma Kumar S., Adv.

                         versus

      UNION OF INDIA & ORS.               ..... Respondents
                    Through: Mr.Manish Mohan, CGSC with
                    Ms.Manisha Saroha, Ms.Shivangi Sinha, Advs.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA


      SANJIV KHANNA, J. (Oral)

The petitioner's service career has a chequered history. We

need not refer to same in detail, in view of the limited controversy

involved.

2. The petitioner had retired from Sashastra Seema Bal (SSB for

short) as Second In Command (2IC) on 30th November, 2009.

WP(C) 1156/2017 Page 1

3. The petitioner on the date of retirement was facing

disciplinary proceedings in the charge sheet dated 22nd August,

2007.

4. By order dated 17th January, 2011, penalty of withholding

20% of pension for 5 years was inflicted under Rule 9 of the

Central Service (Pension) Rules, 1972.

5. The penalty order was successfully challenged before the

Delhi High Court in WP(C) No.8289/2014, as it was held that the

misconduct, as alleged, was based upon the petitioner's

misunderstanding of the provisions of the Income Tax Act and the

methodology for depositing tax. Infliction of the punishment was

not justified. The order of penalty was set aside and the

respondents were directed to pay to the petitioner the amount

due/recovered within six weeks.

6. The petitioner, thereafter, made representation that the sealed

cover in respect of his promotion to the post of Commandant by the

Departmental Promotional Committee, (DPC for short) held on 12th

February, 2009 and 12th October, 2009 should be opened.

WP(C) 1156/2017 Page 2

7. The sealed covers were opened. The petitioner had been

graded 'unfit' for promotion to the rank of Commandant.

8. The contention of the petitioner is that this 'unfit' grading

was based upon the adverse or below benchmark entries in the

Annual Confidential Reports (ACR for short) for the years 2003-04

to 2007-08, which were never communicated.

9. The petitioner vide letter dated 23rd July, 2016 had asked for

a copy of ACRs and the DPC proceedings.

10. The respondents did not respond positively and hence the

petitioner has invoked writ jurisdiction of this Court.

11. The respondents in the counter affidavit have relied upon the

order / memorandum dated 19th September, 2016, which was

written to the petitioner inter alia, informing him that copy of ACRs

cannot be provided being confidential in nature, relying on the

DOPT OM no.21011/1/2010 Estt. A dated 13th April, 2010. This

letter dated 19th September, 2016 states that the benchmark for

promotion to the grade of Commandant was 'very good'. In the

case of the petitioner, ACRs for the years 2003-04 to 2007-08 had

WP(C) 1156/2017 Page 3 been considered and as the petitioner had not achieved the

prescribed benchmark, the DPC had graded him as unfit.

12. The reason for declining or refusing to give copy of ACRs

for 2003-04 to 2007-08 is, in fact contrary to the Office

Memorandum dated 13th April, 2010 relied upon by the

respondents. First paragraph of the said office memorandum reads

as under:-

"The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DCPs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years."

13. Learned counsel for the respondents has fairly stated that

reason given in paragraph 3 of the Memorandum dated 19th

WP(C) 1156/2017 Page 4 September, 2016 is unsustainable in view of the above quoted

Office Memorandum dated 13th April, 2010.

14. In view of the aforesaid position, we partly allow the present

writ petition with the direction to the respondents to furnish the

ACRs for the years 2003-04 to 2007-08 to the petitioner. The

petitioner would thereafter within three weeks make a

representation for upgradation of the ACRs. In case the ACRs are

upgraded, the Review DPC would be held in accordance with law.

In case the ACRs are not upgraded, the petitioner would be

informed. In case of an adverse order, it will be open to the

petitioner to take recourse to action as per law.

15. Directing the above, writ petition is partly allowed with no

order as to costs.

                                                     SANJIV KHANNA, J


                                                     NAVIN CHAWLA, J
      AUGUST 30, 2017
      RN




WP(C) 1156/2017                                                   Page 5