Delhi High Court
Mrs. Sunita Mehra vs Secretary Of Education And Ors. on 4 December, 2018
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: December 04, 2018
% W.P.(C) 185/2018
MRS. SUNITA MEHRA ..... Petitioner
Through Mr. Satish Kumar, Adv.
versus
SECRETARY OF EDUCATION AND ORS. ..... Respondents
Through Ms. Ruchira Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE A.K.CHAWLA
VIPIN SANGHI, J. (ORAL)
1. The petitioner has preferred the present writ petition to assail the
order dated 08.12.2016 passed by the Central Administrative Tribunal
(CAT) in OA no. 4248/2011.
2. The Tribunal had dismissed the said OA preferred by the petitioner,
wherein, she had raised her grievance with regard to her not being granted
benefits of Modified Assured Career Progression Scheme (MACPS) on the
premise that her ACRs for the years 2008-09 and 2009-2010 were
"Average" i.e. below the benchmark. The petitioner also sought direction
for setting aside the said ACR entries and to declare that she had "Very
Good" grading in the said years on the basis of entries contained in the ACR
form. The petitioner also assails the order dated 10.02.2017 passed in RA
no. 42/2017 preferred by the petitioner since the said RA was dismissed by
the Tribunal.
3. The petitioner joined Govt. of NCT of Delhi as TGT (Home Science)
on 21.04.1993. She was promoted as PGT (Home Science) on 05.08.2000.
She worked at Sarvodaya Kanya Vidyalaya (SKV), Raj Nagar-II, Delhi for a
certain length of time. Thereafter, she was transferred to Sarvodaya Kanya
Vidyalaya, Deoli on 16.09.2010. She was further transferred to SKV,
Samalka on 24.06.2011. She was due for financial upgradation under MACP
in the year 2010-2011. However, she was not considered due to her below
benchmark ACR grading. The respondent issued the impugned office
memorandum dated 12.07.2011, wherein, the petitioner was informed that
her case for grant of MACP had been received back with the observation of
District Screening Committee (DSC) of MACP (District Level) that ACRs
for the period 2008-09 and 2009-2010 were found "Average".
4. The grievance raised by the petitioner before the Tribunal was that
said two ACRs were adverse to her career progression since the benchmark
for further promotion was "Good" and she was graded "Average", even
though she had been graded as "Very Good" in the ACRs for the previous
years. The said "Average" ACRs of the two years were never communicated
to her and she learnt about the same for the first time, when office
memorandum dated 12.07.2011 was issued communicating the reasons for
denial of MACP to her. On this short ground, the petitioner prayed that
office memorandum dated 12.07.2011 be quashed and her cause be
considered by the DSC by ignoring said two ACRs grading and by
considering the grading of the previous years. The petitioner also raised
grievance that her ACR grading for the said two years were wrongly
assessed as "Average" on account of manipulation and there was no
justification to grade her as "Average" in the light of the attributes and
achievements recorded in the ACR forms for the said two years.
5. The stand taken by the respondent before the Tribunal, which is also
the stand taken before us, was that the petitioner had been graded as
"Average" in the two years in question on account of her behaviour and
conduct during the relevant period. She had been issued show cause notices
to which she sent a reply. These show cause notices and warning letters
reflect her indiscipline and behaviour and it is on that account that she was
given "Average" grading in the said two years.
6. As noticed above, there are two facets of the case. The first is short
and simple and is squarely covered by the decision of this court in Union of
India vs. V.S. Arora, 2012 SCC Online Del. 3193 decided by the Division
Bench of this court. The Division Bench of this Court considered the
judgments of the Supreme Court in Dev Dutt vs. Union of India 2008 (8)
SCC 725 and Abhijit Ghose Dastidar vs. Union of India & Ors. 2009 (16)
SCC 146. The Division Bench held that the non-communication of ACRs,
which are adverse to the interest of the employee, is, firstly, violative of
Article 14 of the Constitution of India since it is in breach of principle of
natural justice inasmuch as the concerned officer is denied the opportunity
of representing against the same and, secondly, the non-communication of
the ACR denies the opportunity to the government official to improve upon
his/her performance. The Division Bench also considered as to what course
of action should be adopted by the DPC when it is confronted with a
situation where some of the relevant ACRs, though adverse, have not been
communicated to the Govt. servant. Whether, in such a situation, an
opportunity should be granted to the concerned Govt. servant by
communicating ACR at this stage and asking him/her to make a
representation and to decide the same and thereafter hold a review DPC or
whether the DPC should ignore such ACRs and look at ACRs of previous
years? The Division Bench held that the first course of action would not be
correct to adopt and that the DPC should consider the ACRs of the previous
years so as to look at the requisite number of ACRs to decide on the issue of
promotion of the Govt. servant. The relevant observations made by the
Division Bench of this Court in V.S. Arora (supra) read as follows :
"13. Analyzing the above extracted portion from the said
decision in Abhijit Ghosh Dastidar (supra), we find that the
Supreme Court had affirmed the decision in Dev Dutt(supra),
when it observed that - "the same view has been reiterated in
the above referred decision relied upon by the appellant". The
above referred decision related to Dev Dutt(supra). The
principle that was culled out by Abhijit Ghosh Dastidar (supra)
from the decision in Dev Dutt (supra) was that non-
communication of an ACR would be arbitrary and would be
violative of Article 14 of the Constitution. The reasons for this
were that the non-communication of an entry of an ACR of a
public servant has civil consequences because it could affect his
chances for promotion or to receive any other benefits.
14. However, the Supreme Court in Abhijit Ghosh
Dastidar (supra) went further and observed categorically that,
therefore, the entries "good", if at all granted to the appellant,
ought not to have been taken into consideration for being
considered for promotion to the higher grade. What this meant
was that the below benchmark ACRs, which had not been
communicated to an employee, ought not to be taken into
consideration for the purposes of considering the promotion of
that employee to a higher grade. We must also distinguish
between the stage when ACRs are written and the stage when
they are considered by the DPC. What Dev Dutt (supra) and,
indeed, Abhijit Ghosh Dastidar (supra) hold in unison is that
the ACRs must be communicated to the concerned
employee/officer soon after it is written. Beucase, its non-
communication is contrary to the provisions of article 14 of the
Constitution. But, this is at the stage when the ACRs are
recorded or shortly thereafter. The objective of communicating
the ACRs is two-fold. In the first place, as an element of natural
justice, the officer concerned gets an opportunity of
representing against the ACR before it is too late. Secondly, it
also informs and warns the officer concerned that his
performance is not upto the mark so that he may improve
himself in the next year. However, at the stage of the DPC, the
ACRs already stand crystallized and their communication then
may not serve any fruitful purpose apart from informing the
concerned employee/officer and, perhaps, enabling him to
represent against it. But, the second aspect of improvement is
lost. Consequently, at the stage of the DPC meeting the
practical approach would be to not consider the
uncommunicated ACRs as held in Abhijit Ghosh
Dastidar (supra).
15. It is further to be noted that the directions given by the
Supreme Court in the subsequent paragraphs, that is, in
paragraph 5 of the said decision were in respect of the
particular case before the Supreme Court and the Supreme
Court had merely directed that as the appellant therein had
retired from service, he would not be entitled to any pay or
allowance for the period for which he had not worked in the
Higher Administrative Grade. However, it had directed that his
promotion would be retrospective with effect from 28.08.2000
and that should be considered for the benefit of re-fixation of
his pension and retiral benefits and other benefits as per rules.
We are not going by the specific directions given by the
Supreme Court in the facts of that case, but by the general
principles of law declared by the Supreme Court in the earlier
portion of the said decision which is set out in paragraph 4 of
the same. The Supreme Court did two things. First of all, it
affirmed the view taken by Dev Dutt (supra) to the extent that
noncommunication of an ACR would be arbitrary and would be
violative of Article 14 of the Constitution. Secondly, it
concluded that such entries, which are not communicated,
should not be taken into consideration for being considered for
promotion to the higher grade. Thus, while Dev Dutt (supra)
had been affirmed by the Supreme Court in Abhijit Ghosh
Dastidar(supra) on the first aspect, as regards what has to be
done with a noncommunicated below benchmark ACR, the
Supreme Court in Abhijit Ghosh Dastidar (supra) took the view
that such an ACR ought not to be considered.
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24. Therefore, the position that emerges is that the decision
in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is
it that Abhijit Ghosh Dastidar (supra) decides? It has, in the
first instance, while affirming Dev Dutt (supra), concluded that
non-communication of an ACR is violative of the constitutional
rights of a government servant/employee. In the second
instance, it has stated that such below benchmark ACRs ought
not to be taken into consideration while the question of
promotion of a particular government servant is in
contemplation. Now, that leaves us with the further question as
to what is to be done after we ignore/do not consider the below
benchmark ACRs. In this regard, we have clear guidelines
contained in Chapter 54 of the Manual on Establishment and
Administration for Central Government Offices, which have
been issued by the Government of India for DPCs (G.I., Dept.
of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the
10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d),
dated the 27th March, 1997 as amended/substituted vide Dept.
of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the
6thOctober, 2000). The relevant portion of the guidelines reads
as under:-
"6.2.1. Confidential Rolls are the basic inputs on
the basis of which assessment is to be made by
each DPC. The evaluation of CRs should be fair,
just and non-discriminatory. Hence -
(a) The DPC should consider CRs for equal
number of years in respect of all officers
considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the
employees for promotion on the basis of their
Service Records and with particular reference to
the CRs for five preceding years irrespective of the
qualifying service prescribed in the
Service/Recruitment Rules. The 'preceding five
years' for the aforesaid purpose shall be decided as
per the guidelines contained in the DoP&T, O M.
No. 22011/9/98-Estt. (D), dated 8-9-1998, which
prescribe the Model Calendar for DPC read with
OM of even number, dated 16-6-2000. (If more
than one CR have been written for a particular
year, all the CRs for the relevant years shall be
considered together as the CR for one year.)
xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written
for any reason during the relevant period, the DPC
should consider the CRs of the years preceding the
period in question and if in any case even these are
not available, the DPC should take the CRs of the
lower grade into account to complete the number
of CRs required to be considered as per (b) above.
If this is also not possible, all the available CRs
should be taken into account.
xxxx xxxx xxxx xxxx"
7. In the light of the aforesaid decision, the matter could be disposed of
with direction to the respondents to place the case of the petitioner before
the DSC for consideration afresh for grant of MACP by ignoring the ACRs
for the years 2008-09, 2009-10. We would however, like to notice the other
aspects raised by the petitioner namely, the manner in which the ACRs
grading for the said years have been recorded as "Average". Our attention
has been drawn to the ACRs for the said years. The ACR format is in four
parts. Parts A and B are filled by the officer under assessment and contains
the relevant information with regard to the performance of the Govt. servant.
The ACR format for the two years in question shows that the petitioner had
very good results and a high percentage of distinction in the subject taught
by her. Pertinently, for the year 2009-10 i.e. for the period from 01.04.2009
to 31.3.2010, there are two assessments recorded in respect of the petitioner.
In the first assessment, in para C- which is filled by the head of school, the
assessment recorded as follows :
"PART -C
(Assessment by the Head of the School)
Period of supervision is less than 3 No.
months?
1. Please comment on Part B as Yes.
filled in by the official and
specifically state whether you
agree with the answer or not,
if not, give reasons thereof.
2. Punctuality (in attending the Punctual
school as well as class
periods).
3. Honesty and integrity. Honest
4. Promptitude/Initiative. She does her work
5. Whether private tuitions taken No
during the year.
6. Whether responsible for any Home Science Lab
outstanding work during the Incharge.
year.
7. Whether reprimanded No
verbally/in written for
indifferent work or other
cause during the year, give
details.
8. Observation of the Head of She is a good teacher
the school regarding the
teacher.
9. Grading : Outstanding/Very Average
Good/Good/Average/Poor
(in case of outstanding/poor
give full justification).
10. Diary No. 252 Diary 31/05/2010
Date.
11. Dispatch No. 1421 Diary 11/06/2010
Date."
8. Curiously, without any notice or intimation to the petitioner, the same
was changed by Head of the School so as to read as follows :
"PART -C
(Assessment by the Head of the School)
Period of supervision is less than 3 No.
months?
1. Please comment on Part B as Relationship with HOS
filled in by the official and
specifically state whether you
agree with the answer or not,
if not, give reasons thereof.
2. Punctuality (in attending the Punctual
school as well as class
periods).
3. Honesty and integrity. Honest
4. Promptitude/Initiative. She does not performed
her duties properly.
5. Whether private tuitions taken No.
during the year.
6. Whether responsible for any Home Science Lab
outstanding work during the Incharge.
year.
7. Whether reprimanded Yes she speaks loudly in
verbally/in written for aggressive manner and
indifferent work or other disobedient.
cause during the year, give
details.
8. Observation of the Head of She is uncooperative and
the school regarding the uses unparliamentary
teacher. language.
9. Grading : Outstanding/Very Average
Good/Good/Average/Poor
(in case of outstanding/poor
give full justification).
10. Diary No. 252 Diary 31/05/2010
Date.
11. Dispatch No. 1421 Diary 11/06/2010
Date."
9. ACR grading on both occasions, no doubt, was "Average" but what is
the relevant is that the remarks given by the Head of School were changed in
a material way. In the first assessment, the Head of School agreed
with the self assessment in Part B by the petitioner, whereas, in the
subsequent form, the Head of School raised the issue that the relationship
with the Head of School (HOS) was not very good. Also, in the first form,
the Head of School recorded that the petitioner "Does her work", in the
second form, it was recorded that "she does not perform duties properly". In
the second form, there was another aspect noted namely, that she speaks
loudly in aggressive manner, she is disobedient and unco-operative and uses
unparliamentary language. These adverse remarks were not to be found in
the first assessment. It is also pertinent to note that diary number, date and
dispatch number in both the forms is the same. The petitioner has pointed
out, and, rightly so, that if the subsequent assessment for the year 2009-10
was re-filled by the Head of School, after obtaining permission from the
Directorate of Education, the diary number, dispatch number and dispatch
date could not be the same. There is no satisfactory explanation in this
regard. The respondents have sought to place reliance on the show cause
notice issued on account of misbehaviour of the petitioner. Pertinently, they
were responded to by the petitioner and the matter stood closed on each
occasion. The respondents did not choose to initiate any action against the
petitioner for the misbehaviour during the relevant period, though, it is
informed that after 31.03.2010, some action had been initiated against her.
Even, if, any action was initiated, it would not have any bearing so far as the
consideration for grant of MACP is concerned on the basis of her ACRs
upto 31.03.2010.
10. In the light of the aforesaid, we set aside the impugned order and
direct that the case of the petitioner be placed before DSC of MACP
(District Level) for consideration of the petitioner's case for grant of MACP.
While doing so, the grades assigned to the petitioner for the years 2008-2009
and 2009-2010 shall be ignored and DSC shall look at the ACRs of the
petitioner for the preceding five years. The said exercise should be
completed within the next two months and the petitioner should be
communicated the decision thereon.
11. The petition stands disposed of.
VIPIN SANGHI, J
A. K. CHAWLA, J
DECEMBER 04, 2018
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