Delhi High Court
Vipin Kumar vs Hindustan Petroleum Corporation ... on 20 February, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29.01.2019
Pronounced on: 20.02.2019
+ W.P.(C) 6862/2018
VIPIN KUMAR ..... Petitioner
Through: Mr. Alakh Alok Srivastava and
Mr.Chandan Kumar Singh, Advs.
versus
HINDUSTAN PETROLEUM CORPORATION LIMITED & ORS
..... Respondents
Through: Mr. Raj Birbal, Sr. Adv. with
Ms.Raavi Birbal and Mr. Zahid Saifi,
Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner seeks direction thereby
directing the respondents to set aside and quash the order dated 21.05.2018
passed by the respondents vide which the representation of the petitioner has
been arbitrarily dismissed. He further seeks direction thereby to set aside
and quash the downgraded ACR rating of „4‟ given by the respondents to the
petitioner for the year 2014-15. Consequently, directing the respondents to
promote the petitioner from the salary grade „D‟ to the salary grade „E‟ with
retrospective effect, upon ignoring the said illegal rating „4‟ given to the
petitioner for the year 2014-15 and also to grant consequential benefits
thereto.
2. The brief facts of the case are that the petitioner is a qualified
engineer who joined the respondent Hindustan Limited Petroleum
Corporation (hereinafter referred to as "HPCL") on 28.10.1991 as Officer
Trainee (Management Employee) in the entry level salary grade „A‟ and has
completed 27 years of service. Presently he is posted as Senior Manager -
Retail Upgradation in HPCL J&K Retail R.O. at Jammu. Till today the
petitioner has served at 12 locations across the country and has played
pivotal role in the construction of 7 depots/terminals and more than 250
retail outlets in the states of Delhi, Himachal Pradesh, Punjab, Uttar Pradesh,
West Bengal, Odisha, Chhattisgarh, etc., including outlets like Tapri and
Tunnuhatti in the most difficult terrains. Moreover, the petitioner has also
implemented the new RVI/VRS and automation in Delhi, when these
concepts were just started.
3. Further the case of the petitioner is that he was promoted from
Salary Grade „A‟ to „B‟, from „B‟ to „C‟ and then to the present Salary
Grade „D‟ on 25.06.2007. The promotions are governed by the "HPCL
Promotion Policy-Management Employees" (updated as of March, 2009)
which is annexed herewith and marked as Annexure P1. Vide office
memorandum (OM) dated 14.05.2009, the Government of India
categorically stated that the full APAR of an employee including the
remarks of the reviewing/accepting authority are required to be
communicated to him within a reasonable period. A copy of the same is
marked as Annexure P2. The "Performance Appraisal System" of the
respondents is governed by the Rule 8.1 of its personnel manual which is
marked as Annexure P3. Certain portions of the aforesaid "HPCL
Promotion Policy-Management Employees" have been amended by the
respondents vide Minutes of Meeting dated 11.12.2014, duly communicated
vide letter dated 09.01.2015 issued by the Company Secretary‟s Desk. A
copy of the same is marked as Annexure P4. However, in FY 2014-15, the
petitioner submitted his goals and targets through Online Performance
management System. The said goals and targets were required to be
approved by the then reporting officer i.e. respondent no.4 and then in turn
required to be approved by the reviewing officer of the petitioner i.e.
respondent no.3 herein. On 06.09.2014, the goals and targets submitted by
the petitioner were returned back to him by his reporting officer with certain
remarks. Accordingly, the petitioner modified his goals and targets as per
those comments and then resubmitted the same on 18.09.2014. However, on
20.10.2014 the said modified goals and targets were returned back to him by
his reviewing officer with certain more comments. Then the petitioner
resubmitted his modified goals and targets on 04.12.2014 which were again
returned by the reviewing officer on 31.12.2014 with certain comments.
The petitioner once again resubmitted the same on 29.01.2015 which were
approved by the reporting officer on 20.03.2015 and by reviewing officer on
15.04.2015.
4. Further the case of the petitioner is that as per the Annual
Performance Management Report of the petitioner for the year 2014-15, he
was remarked as „Below Target‟ against 3 out of 32 counts in first six
monthly assessment i.e. HRD-1 or „H-1‟, however, he improved upon his
performance and was subsequently marked as „meeting target‟ in all those
32 counts in his next six monthly assessment i.e. HRD-2 or „H-2‟. Thus, by
the end of the year 2014-15, the petitioner was marked as „meeting target‟
against all counts annually. A copy of the same is marked as Annexure P5.
In the month of October, 2015, the petitioner did not receive his monthly
expected bonus/PRP (Performance Related Payment) and then he sensed
that he was given rating „4‟ in his Annual Confidential Report (ACR) for the
year 2014-15. Though the respondents did not specifically communicate to
the petitioner about his said rating „4‟. However, on the basis of his
presumption, the petitioner submitted a detailed representation dated
27.10.2015 to the respondents against the said rating „4‟ given to him which
is marked as Annexure P6. Subsequently, vide letter bearing reference
No.HRD:PM:CFD:DPC dated 15.01.2016, the respondents released list of
the employees promoted during the DPC held in January, 2016 for the
performance year 2014-15. The name of the petitioner did not figure into the
said list which categorically indicated that the respondents had denied
promotion to the petitioner on the basis of uncommunicated ACR for the
year 2014-15.
5. Learned counsel appearing on behalf of the petitioner submitted that
the petitioner submitted his grievance to the Management Employee
Relations Committee (MERC) and subsequently made oral submission also
before the MERC on 27.01.2016 regarding his rating „4‟ for the year 2014-
15. However, after a lapse of about 8 months, vide a non-speaking and
cryptic letter bearing HRD:PM:2016 dated 20.09.2016, the respondents
arbitrarily dismissed the representation of the petitioner against the said
rating „4‟.
6. Learned counsel further submits that it was on 20.09.2016 that the
respondents agreed for the first time that the petitioner was given rating „4‟
for the year 2014-15, however, still no formal communication was sent to
him in this regard. Thereafter, the petitioner kept on requesting the
respondents to pass a speaking order for disposal of his captioned grievance.
At last, a representation was sent by the petitioner to the respondents on
29.03.2017, but the respondents did not pay any heed to it. A copy of the
same is marked as Annexure P8. Finding no option, the petitioner filed
W.P.(C) 5795/2017 before this Court and the same was disposed of vide
order dated 11.04.2018 by recording that details of the number of targets,
which were not met by the petitioner, ought to have been spelt out in
impugned rejection by the respondents. Accordingly, directed the
respondents to reconsider the representation dated 27.10.2015 of the
petitioner by passing a speaking order. However, vide their order dated
21.05.2018, the respondents have once again rejected the said representation
without assigning any cogent reasons. Copy of the order dated 21.05.2018 is
annexed and marked as Annexure P13.
7. Learned counsel for the petitioner further submits that downgrading
of ACR without assigning any reasons is unsustainable in law. Moreover,
reasons of downgrading of ACR are mandatorily required to be
communicated to the concerned employee within a reasonable period of
time before relying upon the same for denial of his promotion. However, in
the instant case, while downgrading the petitioner to the rating „4‟, the
concerned reviewing officer has neither assigned any reason whatsoever nor
has he supplied his remarks/comments to the petitioner. The respondents
have miserably failed to even mention such comments/remarks made by the
reviewing authority in their latest order dated 21.05.2018 vide which the
representation dated 27.10.2015 of the petitioner has been dismissed. Thus,
the downgrading rating „4‟ given to the petitioner by the reviewing officer is
untenable in the eyes of law.
8. Further it is submitted that admittedly the ACR rating „4‟ for the year
2014-15 was not communicated to him before conducting the concerned
DPC wherein the petitioner was denied promotion from Salary Grade „D‟ to
the Salary Grade „E‟ solely on the basis of the said ACR. The petitioner had
made his representation dated 27.10.2015 merely on the basis of
presumption that he might have been given rating „4‟ as he did not receive
his PRP in that year and there was no clear communication from the
respondents in this regard. The said representation dated 27.10.2015 cannot
absolve a model employer from its bounden duty to specifically
communicate such ratings in terms of the law settled by the Hon‟ble
Supreme Court in a plethora of judgments. Thus, present petition deserves
to be allowed.
9. On the other hand, learned counsel appearing on behalf of the
respondents submitted that the corporation has duly complied with the
directions dated 11.04.2018 passed by this Court in W.P.(C) 5795/2017 and
a detailed speaking order dated 21.05.2018 was passed. The appraisal and
performance of the petitioner was reviewed at various levels by different
Management superiors at Zonal level as well as headquarter level including
MERC and appellate MERC which consists of the officers of very senior
level management. Thus, in the light of the scope of judicial review in the
matter, through a detailed reasoned decision, the petitioner had been
communicated with regard to upholding of his performance rating as „4‟ for
the year 2014-15. After the representation of the petitioner which was
rejected on merits by the respondents, the same does not hold any ground, as
such, the petition is liable to be rejected.
10. Learned counsel for the respondents has relied upon the case of Saroj
Kumar vs. Union of India: (2015) 12 SCC 198 whereby the Hon‟ble
Supreme Court has recorded that "................... we are in agreement with the
High Court that after the ACRs have been communicated and representation
has been rejected, the Tribunal should not have treated the remarks
uncommunicated."
11. He further relied upon the case of Dalpat Abasaheh Solunke and
Ors. vs. Dr. B.S. Mahajan and Ors.: (1990) 1 SCC 305 whereby the
Hon‟ble Supreme Court has held that "...............Whether a candidate is fit
for a particular post or not has to be decided by the duly constituted
Selection Committee which has the expertise on the subject. The Court has
no such expertise. The decision of the Selection Committee can be
interfered with only on limited grounds, such as illegality or patent material
irregularity in the constitution of the committee or its procedure vitiating the
selection, or proved malafides affecting the selection etc."
12. He further relied upon the case of Union of India and Anr. vs. S.K.
Goel and Ors.: (2007) 14 SCC 641 whereby the Hon‟ble Supreme Court has
held that "...............evaluation made by an expert committee should not be
easily interfered with by the courts which do not have the necessary
expertise............"
13. Learned counsel further relied upon the case of State Bank of India
and Ors. vs. Mohd. Mynuddin: (1987) 4 SCC 486 whereby the Hon‟ble
Supreme Court has held that the selection process can be challenged only
when the said selection is vitiated on the ground of bias, malafides or any
other similar vitiating circumstances.
14. Learned counsel for the respondent further submitted that if the
present petition is allowed then it will effect promotion of other persons but
the petitioner has not made them party, therefore, the present petition is
liable to be dismissed on non-joinder of the necessary parties. To strengthen
this view, counsel for the respondents has relied upon the case of State Bank
of Rajasthan vs. Ucchab Lal Chhanwal: (2014) 1 SCC 144 whereby the
Hon‟ble Supreme Court has held that once the juniors who have been
promoted earlier and have not been arrayed as parties to the lis, an adverse
order cannot be passed against them as that would go against the basic tenet
of the principles of natural justice.
15. A similar view was taken in the case of J.S. Yadav vs. State of Uttar
Pradesh & Anr.: (2011) 6 SCC 570 whereby the Hon‟ble Supreme Court
has held that ".................In service jurisprudence if an unsuccessful
candidate challenges the selection process, he is bound to implead atleast
some of the successful candidates in representative capacity......"
16. Learned counsel for the respondent submits that in view of the facts
mentioned above, the present petition deserves to be dismissed.
17. I have heard learned counsel for the parties in length and perused the
material on record. I do not dispute the cases cited by the counsel for the
respondents.
18. However, the fact remains that in State of U.P. vs. Yamuna Shankar
Mishra: (1997) 4 SCC 7, the Hon‟ble Supreme Court has held that
"............The officer entrusted with the duty to write confidential reports, has
a public responsibility and trust to write the confidential reports objectively,
fairly and dispassionately while giving, as accurately as possible, the
statement of facts on an overall assessment of the performance of the
subordinate officer.............."
19. In THDC India Ltd. vs. T.Chandra Biswas: 199 (2013) DLT 284,
this Court has held that "......providing to an employee gradings without the
narrative is like giving a conclusion in judicial/quasi-judicial or even an
administrative order without providing the reasons which led to the
conclusion. If the purpose of providing ACRs is to enable the employee to
assess his performance and to judge for himself whether the person writing
his ACR has made an objective assessment of his work, the access to the
narrative which led to the grading is a must....."
20. In U.P. Jal Nigam & Ors. vs. Prabhat Chandra Jain and Ors. :
(1996) 2 SCC 363, the Hon‟ble Supreme Court has held that if the graded
entry is of going a step down, like falling from 'very good' to 'good' then the
down grading authority is required to record reasons for such down grading
on the personal file of the officer concerned, and inform him of the change
in the form of an advice.
21. In case of Sukhdev Singh vs. Union of India & Ors.: (2013) 9 SCC
566, the Hon‟ble Supreme Court has held that the remarks made in the ACR
of an employee are required to be communicated to him within reasonable
time so as to enable him to make effective representation and also to
improve upon.
22. In case of High Court of Judicature at Patna, through R.G. vs.
Shyam Deo Singh & Ors.: (2014) 4 SCC 773, the Hon‟ble Supreme Court
has recognized that the adverse remarks/comments recorded in the ACR are
required to be communicated to the concerned employee.
23. In case of Daljit Singh Grewal vs. State of Punjab & Ors.: (2015) 9
SCC 680, the Apex Court has held that downgrading of grading in ACR by
the reviewing officer without assigning any reason, is untenable in the eyes
of law.
24. Moreover in OM dated 14.05.2009 issued by the Government of India
categorically states that:
"2(ii) The full APAR including the overall grade and
assessment of integrity shall be communicated to the
concerned officer after the report is complete with the
remarks of the reviewing officer and the accepting
authority wherever such system is in vogue."
25. Accordingly, the reviewing officer is not only bound to assign
detailed reasons for such downgrading but he is further bound to
communicate the said reasons to the concerned employee forthwith. Such
responsibility of the reviewing officer becomes more binding when the
downgradation of ACR results into the denial of promotion to the concerned
employee.
26. Admittedly, in the instant case, while downgrading the rating from „3‟
of the petitioner to the rating „4‟, the concerned reviewing officer has neither
assigned any reason whatsoever nor has he supplied his remarks/comments
to the petitioner. Moreover, the respondents have miserably failed to even
mention such comments/remarks made by the reviewing authority in their
latest order dated 21.05.2018 vide which the representation dated
27.10.2015 of the petitioner has been dismissed.
27. It is no more res integra that uncommunicated ACRs cannot be taken
into consideration for denial of promotion to an employee. The said view
has been decided in case of Abhijit Ghosh Dastidar vs. Union of India &
Ors.: (2009) 16 SCC 146 whereby it has been held that uncommunicated
entry in ACR should not have been taken into consideration for denial of
promotion.
28. The same view was taken in case of Prabhu Dayal Khandelwal vs.
Chairman, UPSC & Ors.: (2015) 14 SCC 427 and Gurdial Singh Fiji vs.
State of Punjab: (1979) 2 SCC 368.
29. In case of Union of India vs. V.S. Arora & Ors. [order dated
31.05.2012 passed in W.P.(C) 5042/2012], the Division Bench of this Court
has placed reliance on the Abhijit Ghosh Dastidar (supra) and took a view
that below bench mark ACR which was 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.
30. In R.K. Mishra vs. Union of India & Ors. [order dated 12.04.2017
passed in W.P.(C) 4855/2014], a Division Bench of this Court directed the
respondent employer to hold review DPC without taking into account the
uncommunicated ACRs.
31. The same view was taken in Amar Nath Singh Bisht vs. State of
Uttarakhand & Ors.: [order dated 02.09.2016 passed in W.P.(C)
101/2016], by a Division Bench of High Court of Uttarakhand at Nainital.
32. In the instant case, it is an admitted fact that ACR rating „4‟ of the
petitioner for the year 2014-15 was not communicated to him before
conducting the concerned DPC wherein the petitioner was denied promotion
from Salary Grade „D‟ to the Salary Grade „E‟ solely on the basis of said
ACR. The petitioner made his representation dated 27.10.2015 merely on
the basis of presumption that he might have been given rating „4‟ as he did
not receive his PRP in that year and there was no communication from the
respondents in this regard.
33. The said representation dated 27.10.2015 cannot absolve a model
employer like the respondent HPCL from its bounden duty to specifically
communicate such ratings in terms of the proposition of law laid down by
the Hon‟ble Supreme Court in a plethora of judgments including in Sukhdev
Singh (supra) and also in terms of the said OM dated 14.05.2009. Hence,
the denial of promotion of the petitioner from salary Grade „D‟ to Salary
Grade „E‟, on the basis of such uncommunicated ACR, is ex-facie illegal
and untenable in the eyes of law.
34. In addition to above, in Sukhdev Singh (supra), it is held that every
entry in ACR is required to be communicated by the employer to the
concerned employee within a reasonable period of time.
35. In Dev Dutt vs. Union of India: (2008) 8 SCC 725, it is categorically
held that non-communication of an entry in ACR in reasonable period of
time is arbitrary and violative of Article 14 of the Constitution of India in
terms of the decision of the Constitution Bench passed in Maneka Gandhi
vs. Union of India.
36. In the present case, the captioned rating „4‟ of the petitioner for the
year 2014-15 was never specifically communicated by the respondents to
the petitioner by their own even till today. For the first time, the
respondents admitted the said rating of the petitioner in their reply dated
20.09.2016, that too while responding to the representation of the petitioner.
However, such admission in a reply cannot be equated with the specific
communication which is required to be made by an employer in terms of the
aforesaid judicial propositions, particularly in compliance of the Sukhdev
Singh (supra) in its letter and spirit.
37. In addition to above, in the instant case while arbitrarily downgrading
the rating from „3‟ of the petitioner to the rating „4‟, the respondents have
miserably failed to show any objectivity, impartiality or fair assessment and
have further lacked any sense of responsibility, which is evident from the
fact that no cogent reason, as such, has been assigned by the reviewing
authority or any other superior authority of such downgradation of ACRs.
Such conduct of the respondents is in sheer violation of the proposition of
law propounded by the Hon‟ble Supreme Court of India in a plethora of
judgments, including in State Bank of India & Ors. vs. Kashinath Kher &
Ors. (1996) 8 SCC 762, whereby the Hon‟ble Supreme Court has held that
an officer writing confidential report must show objectivity, impartiality and
fair assessment without any prejudices whatsoever and with the highest
sense of responsibility.
38. As argued by the counsel for the petitioner, the impact of the illegal
and arbitrary rating „4‟ is two fold. Firstly, it has debarred the petitioner
from promotion under „seniority-cum-merit‟ quota. Secondly, it has further
debarred the promotion on „stagnation basis‟ for 3 years. In this regard, it is
pertinent to mention here that as per the previous "HPCL Promotion Policy-
Management Employees" (updated as of March 2009), the officers having
overall rating of „4‟ were used to be considered as "Not Ready" for
promotion only for one year. However, now upon amendment carried out
by the respondents in the said policy, vide Minutes of Meeting dated
11.12.2014 duly communicated vide letter dated 09.01.2015 issued by the
Company Secretary‟s Desk of HPCL, the new rule is that the officers having
overall rating of „4‟ or „5‟ are now considered as "Not Ready" for promotion
for three years. Hence, due to such illegal and arbitrary rating „4‟ given to
the petitioner during the year 2014-15, he has been deprived of his
promotion on „stagnation basis‟ for next three years i.e. during the years
2016, 2017 & 2018. Hence, the aforesaid illegal and arbitrary rating „4‟ has
completely spoiled the career progression of the petitioner with enormous
adverse impact, causing patent prejudice and grave injustice to the
petitioner. In addition, it has resulted into huge financial losses to the
petitioner.
39. It is pertinent to mention here that the aforesaid amendment carried
out by the respondents in the said promotion policy, vide Minutes of
Meeting dated 11.12.2014 duly communicated vide letter dated 09.01.2015
issued by the Company Secretary‟s Desk of HPCL, stating that the officers
having overall rating of „4‟ or „5‟ are now considered as "Not Ready" for
promotion for three years has also resulted into equating the rating „4‟ and
„5‟ as there impacts are almost same. Resultantly, the respondent HPCL has
only 4 effective ratings as of today - „1‟, „2‟, „3‟ and „4/5‟, which is in sheer
violation of the DPE (Department of Public Enterprises, Government of
India) guidelines stipulated in the office memorandum dated 03.08.2017
which categorically stipulates that there should be 5 gradings/ratings viz., (i)
Excellent, (ii) Very Good, (iii) Good, (iv) Fair and (v) Poor. It is pertinent
to mention here that other similarly situated PSUs like Bharat Petroleum
Corporation Limited (BPCL) are strictly following the said DPE guidelines
and have adopted 5 point gradings/ratings system. However, the respondent
corporation has blatantly violated the said DPE guidelines.
40. As submitted by the counsel for the petitioner, as per the said DPE
guidelines stipulated in the office memorandum dated 03.08.2017, the
employees who have been rated „4‟ are also eligible for 25% bonus/PRP for
the year 2014-15 solely on the basis of his rating „4‟ in utter violation of the
said DPE guidelines causing enormous injustice to the petitioner.
41. It is further pertinent to mention here that the assessment of Annual
Appraisal of the employees is divided into two comprising of 6 months each.
The performance assessment pursuant to first 6 months of a year is termed
as HRD-1 or „H-1‟ whereas the performance assessment pursuant to the last
6 months of a year is termed as HRD-2 or „H-2‟. The reporting officer
assesses the performance of an employee in H-1 and flags the areas
requiring more effort at the end of 6 months. Thereafter, the employee is
given another 6 months‟ time to improve upon in those area so that he gets a
final assessment after completion of last 6 months i.e. H-2. As the name
suggests, the term „ACR‟ or Annual Confidential Report is meant for
assessment of "Annual" performance of an employee and not for six
monthly assessment. Hence, even if an employee is found to be "Below
Target" after H-1 assessment, he cannot be termed to be an under-performer,
if he improves upon and achieves the parameter of "Meeting Target" at the
time of H-2 assessment.
42. In the instant case, it is clear from the perusal of the enclosed
Performance Management Report of the petitioner for the year 2014-15 that
the petitioner has been marked as "Below Target" only against the H-1
assessment and not cumulatively against H-2 assessment. Accordingly, it is
evident that the petitioner was able to achieve the parameter of "Meeting
Target" in each of those 3 counts and hence, the same cannot be construed to
be an indication of "Below Target" by any stretch of imagination. However,
the respondents have deliberately concealed the same in their impugned
order dated 21.05.2018 and have tried to give an impression that the
performance of the petitioner was "Below Target" on 3 counts, annually i.e.
for the entire year 2014-15. Hence, the said malafide and misleading
interpretation by the respondents is liable to be rejected.
43. While passing the impugned order dated 21.05.2018 pursuant to the
direction passed by this Court, it is further evident from the fact that the
respondents have concealed the specific details of the targets which were
allegedly not met by the petitioner in the year 2014-15. The enclosed
performance report of the petitioner for the year 2014-15 categorically
reveals that the petitioner was found to be "Below Target" in H-1 against the
following KPIs-
S. No. H-1 H-2 Remarks
Remarks
1. KPI-1: Survey of H-1 Input: Below
New Lighting Market Survey Target
Techniques and Done and
Fixtures Presentation
Made. Pilot
Project
Implemented at
8th Floor, GM
Office Area
H-2 Input: Pilot Meeting
Project Target
Implemented
2. KPI-4: Online H-1 Input: HMS Below
Housing is re-energized Target
Maintenance H-2 Input: HMS Meeting
System is re-energized Target
3. KPI-8: NPCB H-1 Input: M/s Below
Canteen Hindware yet to Target
Renovation commence jobs.
Site Handed
Over.
H-2 Input: PO Meeting
Placed. Concept Target
frozen. Job not
yet commenced
by the party.
44. On perusal of the aforesaid Performance Management Report, it is
quite clear that against the KPI-1, for the identically same input of "Pilot
Project Implemented" recorded by the petitioner in both H-1 and H-2, the
respondents have given their different remarks as "Below Target" for H-1
and "Meeting Target" for H-2. If the input of "Pilot Project Implemented"
was sufficient to qualify for remark "Meeting Target" in H-2 then why the
same was not also given as "Meeting Target" in H-1. This clearly shows
that the sheer arbitrariness and non-application of mind on the part of the
respondents while giving remarks of "Below Target" to the petitioner in H-1
towards this KPI-1 and thus such remarks are liable to be rejected.
45. In KPI-4, it is clear that against the aforesaid KPI-4, for the identically
same input of "HMS is re-energized" recorded by the petitioner in both H-1
and H-2, the respondents have given their different remarks as "Below
Target" for H-1 and "Meeting Target" for H-2. If the input of "HMS is re-
energized" was sufficient to qualify for remark "Meeting Target" in H-2
then why the same was not also given as "Meeting Target" in H-1.
46. In KPI-8, it is clear that the petitioner has given his comments - "M/s
Hindware yet to commence jobs. Site handed over." In H-1 to which the
respondents have given their remarks as "Below Target" in H-1 whereas
when the petitioner has given his comments - "PO placed. Concept frozen.
Job not yet commenced by the party." then he has been given remarks of
"Meeting Target". The captioned NPCB Canteen Renovation meant that
the office canteen of the GMO-North Zone, Scope Minar, Delhi, was
required to be vacated for at least 3-4 months as lunch was being served to
approximately 200+ employees in that canteen. Decision to put canteen out
of service was only to be taken after discussions with different SBUs/
Department Heads and above all the non-management employees‟ unions.
More so, an agreement was to be reached regarding alternate source or type
of lunch to be served for 3 months. Such large scale co-ordination with
different SBU heads and placing the PO was beyond the authority and
control of the petitioner and at the most he could have requested his
supervisor to expedite the same which he regularly and consistently did.
47. It is also pertinent to mention that subsequently, the petitioner was
able to complete the entire NPCB Canteen Renovation work in record time
of 1.5 months as against the total stipulated time of 6 months, for which
rated "Exceeding Target" in the next performance year. Hence, such
remarks of "Below Target" in the year 2014-15 is malafide and unfounded
and thus is liable to be rejected.
48. It is not out of place to mention here that the petitioner had joined the
respondent corporation in the year 1991 and is serving for the last more than
27 years. It is a matter of record that in his entire career of 27 years, the
petitioner has never been rated with the low rating of „4‟ except in the
captioned year 2014-15. The ratings of the petitioner during last few years,
are depicted herein as under:
Year Remark Rating
2005-06 VERY GOOD 2
2006-07 VERY GOOD 2
2007-08 VERY GOOD 2
2008-09 VERY GOOD 2
49. Keeping in view of the facts discussed above and settled legal
position, I hereby set aside the order dated 21.05.2018 passed by the
respondents.
50. Since the rating of „4‟ given by the respondents to the petitioner for
the year 2014-15 has admittedly not communicated, I hereby set aside and
quash the downgraded ACR rating of „4‟ for the aforesaid year.
51. Consequently, directed the respondents to promote the petitioner from
Salary Grade „D‟ to the Salary Grade „E‟ with retrospective effect upon
ignoring the said rating „4‟ given to the petitioner for the year 2014-15 with
all consequential benefits.
52. The petition is, accordingly, allowed.
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 20, 2019
ab
