Himachal Pradesh High Court
Superintending Engineer vs K.V. Jankiraman Case (Air 1991 Sc on 17 December, 2021
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 17th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No. 157 of 2020
Between:
SURINDER KUMAR,
S/O SH. RAI SINGH,
RESIDENT OF VILLAGE DEHRI,
P.O. KUTHANDAL
PRESENTLY SERVING AS
SUPERINTENDING ENGINEER
NORTH HIMUDA, CIRCLE OFFICE
DHARAMSHALA,
DISTRICT KANGRA, (HP)
....PETITIONER
(BY MR. P.S. PATWALIA, SENIOR
ADVOCATE WITH MR. SUNIL
MOHAN GOEL, ADVOCATE)
AND
1. STATE OF H.P.
THROUGH SECRETARY
(HOUSING-CUM-CHAIRMAN DPC)
TO THE GOVT. OF HIMACHAL PRADESH,
SHIMLA-2
2. HIMACHAL PRADESH HOUSING &
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URBAN DEVELOPMENT AUTHORITY,
.
NIGAM VIHAR, SHIMLA THROUGH ITS
CEO-CUM-SECRETARY-CUM-MEMBER DPC
3. SMT. ANJORI KAPOOR,
W/O SH. AJAY KAPOOR
PRESENTLY WORKING AS SUPERINTENDING ENGINEER,
(SOUTH) HIMUDA, CIRCLE OFFICE KASUMPTI,
SHIMLA-9
4. EXECUTIVE DIRECTOR HIMUDA
MEMBER DPC NIGAM VIHAR, SHIMLA
5. DEPUTY SECRETARY (PERSONAL)
H.P. SECRETARIAT, SHIMLA-2
MEMBER DPC
....RESPONDENTS
(BY MR. SUDHIR BHATNAGAR AND
MR.DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. NARENDER THAKUR AND
MR. KAMAL KISHORE AND GAURAV SHARMA,
DEPUTY ADVOCATES GENERAL,
FOR THE RESPONDENT-STATE)
(BY MR. AMIT SINGH CHANDEL,
ADVOCATE, FOR R-2 AND R-4)
(BY MR. DILIP SHARMA, SENIOR ADVOCATE
WITH MR. MANISH SHARMA,
ADVOCATE FOR R-3)
Whether approved for reporting?. Yes.
Reserved on 04.12.2021
Decided on 17.12.2021
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This petition coming on for pronouncement of judgment this day, the Court passed the
.
following:
ORDER
Being aggrieved and dissatisfied with the issuance of office
order dated 1.1.2020 (Annexure-P-22), whereby respondent No.3-Ms. Anjori
Kapoor, on the recommendation of the review Departmental Promotion
Committee (Higher), came to be promoted to the post of Superintending
Engineer (SE), ahead of the petitioner, petitioner has approached this Court
in the instant proceedings, filed under Article 226 of the Constitution of
India, praying therein for following main relief(s):
"i) That this Hon'ble Court may kindly issue writ of certiorari
quashing order dated 1.1.2020 (Annexure-P-22), minutes of
meeting of the review DPC held for the post of Executive
Engineer (Civil) dated 9.8.2019 (Annexure-P-19) resultant
minutes of meeting of DPC dated 16.8.2019 (Annexure P-20)
and review of review DPC minutes of meeting dated
30.12.2019 (Annexure-P-21).
ii) That this Hon'ble Court may further be pleased to issue
writ of mandamus directing the respondents to reconvene the
DPC and look into all the ACRs of the petitioner and
respondent No.3 and after a comparative evaluation of all the
ACRs of the respondent No.3 objectively alongwith the order
of upgradation passed by the ACS (Housing) conduct
appropriate DPC.
iii) That this Hon'ble Court may be further pleased to issue
writ of mandamus directing the respondents to not to hold
further DPC for promotion to the post of Chief Engineer based
upon the review DPC dated 30.12.2019 and order dated
1.1.2020."
2. For having bird's eye view, certain undisputed facts, which are
.
relevant for the adjudication of the case at hand, are that respondent No.3-
Ms. Anjori Kapoor, joined the respondent- Himachal Pradesh Housing and
Urban Development Authority ( hereinafter referred to as "the HIMUDA") on
18.10.1996, against the post of Assistant Engineer. Subsequent to
aforesaid appointment of respondent No.3, petitioner herein also came to be
appointed as Assistant Engineer in HIMUDA and as such, respondent No.3
being senior to the petitioner herein figured at Sr. No. 11 and petitioner at
Sr. No.12.
Next post to which, both the petitioner and respondent No.3
were eligible for consideration and appointment was that of "Executive
Engineer", however, this being the selection post was to be filled on the
basis of merit cum seniority. Petitioner came to be promoted to the post of
Executive Engineer on 16.6.2007 vide office order dated 16.6.2007, on the
basis of recommendation made by the Departmental Promotion Committee.
3. Being aggrieved and dissatisfied with the promotion of the
petitioner to the post of Executive Engineer and down grading of her annual
ACRs for the period of 1.4.2004 to 31.3.2005, 1.4.2005 to 30.9.2005 and
1.9.2005 to 31.3.2006, respondent No.3 filed an Original Application
bearing OA No. 1642 of 2007 in the Erstwhile HP State Administrative
Tribunal, but same came to be transferred to this court on account of
abolishment of the erstwhile Tribunal and was re-registered as CWP(T) No
.
15395 of 2008. This court vide judgment dated 18.12.2012, held that non-
communication of adverse remarks recorded in the ACR is violative of
Article 14 of the Constitution of India and in complete violation of judgment
passed by the Hon'ble Apex Court in Dev Dutt v. Union of India, (2008) 8
SCC 725. Vide aforesaid judgment, though this Court did not disturb the
promotion of the petitioner and also refused to downgrade his assessment
made in the ACRs, but directed the respondent State and HIMUDA to
ensure prompt compliance of the directions contained in Dev Dutt's case
(supra). This court also observed that in case (respondent No.3) petitioner
herein, becomes aggrieved about the down gradation of his report, he
should also be conveyed the entries etc. for the appropriate remedial action.
Aforesaid judgment rendered by the learned Single Judge of this Court, was
further laid challenge in LPA No. 30 of 2013, titled Surinder Kumar v. Anjori
Kapoor, and Ors, having been filed by the petitioner herein. The Division
Bench of this Court having taken note of the fact that HIMUDA being
necessary party was not impleaded as party respondent in the case having
been filed by respondent No.3, vide judgment dated 23.8.2014 (Annexure P-
2), set-aside the judgment dated 18.12.2012 and directed the parties to
cause appearance before the learned Single Judge on 6.10.2014. However,
before fresh decision, if any, could be taken by the learned Single Judge of
.
this court in the petition having been filed by respondent No.3, matter
again came to be transferred to the erstwhile Tribunal and same was
registered as TA No. 601 of 2015 (Annexure-P-3).
4. The erstwhile Tribunal vide order dated 13.7.2017, allowed the
transfer application and permitted respondent No.3 to make a
representation for up-gradation of her ACRs to Secretary (Housing) to the
Government of Himachal Pradesh , if she chooses so, within a period of one
month, with further direction to the Secretary (Housing) to decide the same
within two months thereafter. While passing aforesaid order, the erstwhile
Tribunal also ordered that if entries of the applicant (respondent No.3
herein) are upgraded, she shall be considered for promotion retrospectively
by the Departmental Promotion Committee within three months thereafter
and if she gets selected for promotion retrospectively, she shall be given
benefits notionally till the joining.
5. Being aggrieved and dissatisfied with the aforesaid order
passed by the erstwhile Tribunal, petitioner herein filed CWP No. 1896 of
2017, before a Division Bench of this Court (Annexure P-4), wherein vide
order dated 23.8.2017, convening of DPC was stayed. The Division Bench
of this court, having taken note of the order dated 17.8.2017, passed by the
Secretary (Housing) in terms of order dated 23.7.2017, passed by the
.
erstwhile Tribunal, whereby ACRs of respondent No.3 for the year, 2002-
03, 2003-04 and 2004-05 came to be upgraded from "good" to "very good",
vide judgment dated 10.12.2018, disposed of the aforesaid writ petition,
reserving liberty to the petitioner to assail the order passed by the Secretary
(Housing) by resorting to the remedies available to him in accordance with
law (Annexure-P-5). Though aforesaid judgment passed by this Court was
laid challenge in SLP filed by the petitioner, but same was withdrawn as is
evident from order dated 14.1.2019 passed by the Hon'ble Apex Court in
SLP(C) No. 163 of 2019 (Annexure-P-6). After dismissal of the SLP as
detailed herein above, petitioner herein filed OA No. 342 of 2019 in the
erstwhile Tribunal, laying therein challenge to order dated 17.8.2017,
passed by the Secretary (Housing ) on the representation having been filed
by the respondent, praying therein to upgrade her ACRs for the period as
detailed herein above (Annexure-P-8). Though, initially the erstwhile
Tribunal directed the parties to maintain status quo with regard to DPC,
but subsequently vide order dated 10.7.2019 (Annexure-P-17) dismissed
the OA having been filed by the petitioner on the ground that it has no
power of judicial review to review the order dated 17.8.2017, passed by the
ACS (Housing). Aforesaid order was further laid challenge by the petitioner
herein in this court by way of CWP No. 1608 of 2019, which was dismissed
.
vide judgment dated 24.7.2019 (Annexure P-18) on the ground that
petitioner does not have any locus standi to challenge the up-gradation of
ACRs of respondent No.3. Though petitioner again laid challenge to the
foresaid judgment passed by the Division Bench of this Court by way of SLP
in the Hon'ble Apex Court, but same was also dismissed as withdrawn.
6. On 9.8.2019 (Annexure-P-19), meeting of Review Departmental
Promotion Committee for the post of Executive Engineer (Civil) was held,
wherein respondent No.3 was granted the seniority over and above the
petitioner. On 16.8.2019, resultant to the review Departmental Promotion
Committee held for the post to Executive Engineer (Civil), meeting of Review
Departmental Promotion Committee for the post of Superintending
Engineer was held, wherein respondent No.3 was ordered to be promoted to
the post of Superintending Engineer (Civil) with effect from 20.3.2017, and
petitioner was ordered to be promoted to the said post w.e.f. 1.9.2014. After
convening of the afore meetings of Departmental Promotion Committee held
on 9.8.2019 and 16.8.2019, proceedings were placed before the Minister
Incharge, who being Chairman-cum-accepting authority, directed the
respondents to conduct the revised Departmental Promotion Committee so
that justice is done to all, as is evident from the relevant extract of noting
sheet placed on record by the petitioner as Annexure-P-26 alongwith
.
application bearing CMP No. 5099 of 2020. In terms of the aforesaid
recommendation of the Chairman-cum-accepting authority. Review
Departmental Promotion Committee was held on 30.12.2019 (Annexure-P-
21) under the Chairmanship of Secretary (Housing) to the Government of
Himachal Pradesh-cum- CEO-cum-Secretary HIMUDA comprising of Mr.
OP Bhandari, HPSS, Deputy Secretary (Personal) to the Government of
Himachal Pradesh. Aforesaid review Departmental Promotion Committee
in its meeting held on 30.12.2019 (Annexure-P-21) observed that the
Departmental Promotion Committee finds no reason to not to upgrade
ACRs in respect of Anjori Kapoor (respondent No.3) as the same has been
decided by the competent authority vide detailed and speaking order in
compliance of the orders of Hon'ble court. Aforesaid review Departmental
Promotion Committee found that review Departmental Promotion
Committees dated 9.8.2019 and 16.8.2019 have been convened in
accordance with the prescribed procedure and as such, require no
reconsideration. After meeting of review DPC held on 30.12.2019, as has
been taken note herein above, the CEO-cum-Secretary HIMUDA, Shimla,
vide office order dated 1.1.2020 (Annexure-P-22), taking note of the
recommendations of the Review Departmental Promotion Committee in its
meetings held on 16.8.2019 and 30.12.2019, promoted respondent No.3
.
Ms. Anjori Kapoor to the post of the Superintending Engineer w.e.f.
1.9.2014 on notional basis instead of 20.3.2017 and vide same order,
petitioner was ordered to be promoted to the post of Superintending
Engineer w.e.f. 20.3.2017 instead of 1.9.2014. In the aforesaid
background, petitioner has approached this Court in the instant petition,
praying therein for reliefs as have been reproduced herein above.
7. Mr. P.S. Patwalia, learned Senior Counsel duly assisted by Mr.
Sunil Mohan Goel, Advocate, representing the petitioner fairly stated that at
this juncture, petitioner herein cannot have any grouse with regard to the
up-gradation of ACRs of respondent No.3 by the Secretary (Housing)
pursuant to the directions issued by the erstwhile Tribunal, which
subsequently came to be upheld by this Court. He argued that precise
grouse of the petitioner at this stage is that Review Departmental Promotion
Committee while considering respondent No.3 for promotion ought not have
accepted the ACRs upgraded by the Secretary (Housing) from "good" to
"very good" in a mechanical manner, rather while considering the
respondent No.3 for promotion to the post of Executive Engineer, which is a
selection post and thereafter, to the post of Superintending Engineer ought
to have taken into consideration all the ACRs of the relevant years. While
making this Court peruse ACRs of respondent No.3 for the relevant years
.
Annexure P-9, 10, 11 and 12, Mr. Patwalia, made serious attempt to
persuade this Court to agree with his contention that had Departmental
Promotion Committee perused the entire record with regard to ACRs of the
relevant years, it would not have recommended respondent No.3 for
promotion. While making this Court peruse Minutes of Departmental
Promotion Committee held on 9.8.2019 and 16.8.2019 (Annexure P-19 and
P-20), Mr. Patwalia, argued that bare perusal of the same nowhere suggests
that DPC perused the record, rather it mechanically after seeing the order
of up-gradation passed by the Secretary (Housing), recommended her for
promotion to the post of Executive Engineer and thereafter, Superintending
Engineer from the respective dates ahead of the petitioner, who, admittedly,
stood recorded as very good officer in his ACRs and as such, was rightly
given promotion in the year, 2014 to the post of Executive Engineer. Lastly
Mr. Patwalia, also invited attention of this court to the R&P Rules of HP
Housing and Urban Development Authority, notified vide notification dated
14.7.2005 issued by the CEO-cum-HIMUDA Secretary (Annexure P-23) to
demonstrate that Departmental Promotion Committee is/was necessarily
required to be comprised of three persons ; 1.) Principal Secretary (Housing)-
Chairman; 2.), CEO-cum-Secretary (HIMUDA)-Member; and 3.) Executive
Director (HIMUDA)-Member. He also invited attention of this court to the
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office memorandum dated 9.5.2014 issued by the Ministry of Personnel,
Public Grievances and Pensions, Department of Personnel & Training,
Government of India (Annexure P-24) to argue that DPC is required to make
its own assessment on the basis of entry in the ACRs and not to be guided
merely by overall grading. He further argued that in case assessment by
the Departmental Promotion Committees are apparently not in the line with
the grades in the ACRs, DPCs should appropriately substantiate the
assessment by giving reasons so that appointing authority could factor
these while taking a view on the suitability of a officer for promotion. In
support of his aforesaid contentions, Mr. Patwalia, placed reliance upon the
following judgments passed by this Court as well as the Hon'ble Apex Court
i.e. 1.) Union of India and Anr. v. A.K. Narula, 2007 (11) SCC 10; 2.)
Union of India and Anr. v. S.K. Goel and Ors 2007 (14) SCC 641; 3.)
Sunder Lal v. Union of India and Ors 2000 (10) SCC 409; and 4.)
Brijesh Sood v. State of HP and Ors, 2021 (3) Shimla Law Cases 1270.
8. Mr. Dilip Sharma, learned Senior counsel duly assisted by Mr.
Manish Sharma, Advocate, representing respondent No.3 and Mr. Amit
Singh Chandel, learned counsel appearing for respondents Nos. 2 and 4
supported the promotion order of the petitioner to the post of Executive
Engineer and thereafter to Superintending Engineer on the basis of
.
recommendation of DPC. Above named counsel further argued that since
all the questions as have been raised in the instant petition already stand
adjudicated by various courts of law, in the earlier petitions having been
filed by respondent No. 3 as well as the petitioner, present petition deserves
outright rejection, being not maintainable. Mr. Sharma, strenuously
argued that petitioner has lost before all the courts and as such, it would
not be proper at this stage to permit him to raise the question, which
otherwise stands fully decided. Mr. Sharma, argued that since Division
Bench of this Court has already held that the petitioner has no locus to lay
challenge to the order upgrading ACRs of respondent No.3, petitioner
cannot be permitted, at this stage, to contend that order /minutes of DPC
recommending respondent No.3 for promotion to the post of Executive
Engineer and thereafter, Superintending Engineer on the basis of up-
gradation of the ACRs made by the Secretary (Housing) is illegal. While
making this Court peruse minutes of DPC, Mr. Sharma, argued that it has
been clearly mentioned in the proceedings that DPC perused the entire
record of ACRs and as such, recommendation made by it for promotion of
respondent No.3 cannot be said to be not based upon proper appreciation
of record. While referring to the office memorandum issued by the Ministry
of Personnel, Public Grievances and Pensions, Mr. Sharma, argued that
.
same has no application in the present case because Departmental
Promotion Committee is only required to give reasons if its assessment is
not in line with the gradation in the ACRs, but since in the case at hand,
DPC has concurred with the ACRs of respondent No.3, it had no occasion
otherwise to record any reasons.
9. I have heard the learned counsel for the parties and gone
through the records of the case.
10.
Having heard learned counsel for the parties and perused the
material available on record, this court finds that precise question, which
needs to be adjudicated in the case at hand is that "whether Departmental
Promotion Committee is necessarily required to make its own assessment on the
basis of entries in the ACRs or it can proceed further merely on the basis of overall
grading given in the ACRs of the official concerned."
11. Though Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel and Training, Government of India, have been
repeatedly issuing guidelines with regard to role of DPCs as have been
taken note herein above, but to have more clarity, on the subject, this court
deems it fit to take note of the latest instructions issued in this regard by
the Government of India vide office memorandum dated 28.4.2014, which
reads as under:
.
"The Department of Personnel & Training had in its O.M.
No.22011/5/86-Estt (D) dated 10.04.1989 issued consolidated
instructions on Departmental Promotion Committee and matters
related thereto. Para 6.2.3 of said O.M. provides that "before
making the overall grading after considering the CRs for the
relevant years, the DPC should take into account whether the
officer has been awarded any major or minor penalty or whether
any displeasure of any superior officer or authority has been
conveyed to him as reflected in the ACRs." These guidelines
further provide that "the DPC should not be guided merely by
the overall grading, if any, that may be recorded in the ACRs
(now APARs) but should also make its own assessment on the
basis of entries in the CRs (now APARs) because it has been
noticed that sometimes the overall grading in a ACR (now
APAR) may be inconsistent with the grades under various
parameters or attributes".
2. It further provides that an officer whose increments have been
withheld or who has been reduced to a lower stage in the time
scale, cannot be considered on that account to be ineligible for
promotion to the higher grade as the specific penalty of withholding
promotion has not been imposed on him/her. The suitability of the
officer for promotion should be assessed by the DPC as and when
occasions arise for such assessment. In assessing the suitability,
the DPC will take into account the circumstances leading to the
imposition of the penalty and decide whether in the light of the
general service record of the officer and the fact of the imposition of
the penalty he should be considered suitable for promotion.
However, even where the DPC considers that despite the penalty,
the officer is suitable for promotion, the officer should not be
actually promoted during the currency of the penalty.
3. Further this Department's O.M. No. No.22034/5/2004-Estt (D)
dated 15.12.2004 provides that a Government servant, on whom a
minor penalty of withholding of increment etc. has been imposed,
should be considered for promotion by the Departmental Promotion
Committee which meets after the imposition of the said penalty and
after due consideration of full facts leading to imposition of the
penalty, if he is still considered fit for promotion, the promotion may
be given effect after the expiry of the currency of the penalty.
4. The procedure and guidelines to be followed for promotion of
Government servants against whom disciplinary/court proceedings
are pending or whose conduct is under investigation has been laid
down in this Department's O.M. No.22011/4/91-Estt (A) dated
14.9.92 and O.M. No.22034/4/2012-Estt (D) dated 02.11.2012
.
and 23.1.2014.
5. The role of Departmental Promotion Committee(DPC) in
assessment of the officers being considered for promotion, including
the officer(s) against whom a chargesheet has been issued or on
whom a penalty has been imposed, has been examined by the
Supreme Court in several judgments. The observations of Supreme
Court in some of the important cases are summarized as under:
(a) In A.K. Narula case (AIR 2007 SC 2296), the Hon'ble
Supreme Court has observed:
"the guidelines give a certain amount of play in the
joints to the DPC by providing that it need not be guided
by the overall grading recorded in the CRs, but may
make its own assessment on the basis of the entries in
the CRs. The DPC is required to make an overall
assessment of the performance of each candidate
separately, but by adopting the same standards,
yardsticks and norms. It is only when the process of
assessment is vitiated either on the ground of bias,
malafide or arbitrariness, the selection calls for
interference. Where the DPC has proceeded in a fair,
impartial and reasonable manner, by applying the
same yardstick and norms to all candidates and there
is no arbitrariness in the process of assessment by the
DPC, the court will not interfere".
(b) In Union of India vs. K.V. Jankiraman case (AIR 1991 SC
2010), the Supreme Court has taken cognizance of role of DPC
the case of an officer on whom a penalty has been imposed
and has held that:
"An employee has no right to promotion. He has only
right to be considered for promotion. The promotion to a
post and more so, to a selection post, depends upon
several circumstances. To qualify for promotion, the
least that is expected of an employee is to have an
unblemished record. That is the minimum expected to
ensure a clean and efficient administration and to
protect the public interest. An employee found guilty of
misconduct cannot be placed on par with the other
employees, and his case has to be treated differently In
fact, while considering an employee for promotion his
whole record has to be taken into consideration and if a
promotion committee takes the penalties imposed upon
the employee into consideration and denies him the
promotion, such denial is not illegal and unjustified."
(c) In U01 & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil)
.
689/2007 -SLP0-2410/2007), the Hon'ble Supreme Court has
held that:
"DPC enjoyed full discretion to devise its method and
procedure for objective assessment of suitability and
merit of the candidate being considered by it. Hence
interference by High Court is not called for. "
While delivering the above judgement, the Division
Bench has observed that:
"...it is now more or less well settled that the evaluation
made by an Expert Committee should not be easily
interfered with by the Court which do not have the
necessary expertise to undertake the exercise that is
necessary for such purpose."
6. It has been brought to the notice of this Department that DPCs
have been adopting varying criteria in assessment of officials
undergoing penalty that are not consistent with the extant
instructions of the DOPT for e.g., downgradation of grading in
ACR/APAR, denying promotion for specified number of years, etc.
7. The matter has been examined in consultation with the
Department of Legal Affairs. It is a settled position that the DPC,
within its power to make its own assessment, has to assess every
proposal for promotion, on case to case basis. In assessing the
suitability, the DPC is to take into account the circumstances
leading to the imposition of the penalty and decide, whether in the
light of general service record of the officer and the effect of
imposition of penalty, he/she should be considered suitable for
promotion and therefore, downgradation of APARs by one level in
all such cases may not be legally sustainable. Following broad
guidelines are laid down in respect of DPC:
a) DPCs enjoy full discretion to devise their own methods and
procedures for objective assessment of the suitability of
candidates who are to be considered by them, including those
officers on whom penalty has been imposed as provided in
DoPT O.M. dated 10.4.89 and O.M. dated 15.12.2004.
b) The DPC should not be guided merely by the overall
grading, if any, that may be recorded in the ACRs/APARs but
should make its own assessment on the basis of the entries
in the ACRs/APARs as it has been noticed that sometimes the
overall grading in a ACR/APAR may be inconsistent with the
grading under various parameters or attributes. Before
making the overall recommendation after considering the
APARs (earlier ACRs) for the relevant years, the DPC should
take into account whether the officer has been awarded any
major or minor penalty. (Refer para 6.2.1(e) and para 6.2.3 of
.
DoPT OM dated 10.04.89)
c) In case, the disciplinary/criminal prosecution is in the
preliminary stage and the officer is not yet covered under any
of the three conditions mentioned in para 2 of DoPT O.M.
dated 14.09.1992, the DPC will assess the suitability of the
officer and if found fit, the officer will be promoted along with
other officers. As provided in this Department's O.M. dated
02.11.2012, the onus to ensure that only person with
unblemished records are considered for promotion and
disciplinary proceedings, if any, against any person coming in
the zone of consideration are expedited, is that of the
administrative Ministry/Department.
d) If the official under consideration is covered under any of
the three condition mentioned in para 2 of O.M. dated
14.09.1992, the DPC will assess the suitability of
Government servant along with other eligible candidates
without taking into consideration the disciplinary
case/criminal prosecution pending. The assessment of the
DPC including 'unfit for promotion' and the grading awarded
are kept in a sealed cover. (Para 2.1 of DoPT OM dated
14.9.92).
e) Para 7 of DoPT OM dated 14.09.92 provides that a
Government servant, who is recommended for promotion by
the DPC, but in whose case, any of the three circumstances
on denial of vigilance clearance mentioned in para 2 of ibid
O.M. arises after the recommendations of the DPC are
received but before he/she is actually promoted, will be
considered as if his/her case had been placed in a sealed
cover by the DPC. He/she shall not be promoted until he/she
is completely exonerated of the charges against him/her.
f) If any penalty is imposed on the Government servant as a
result of the disciplinary proceedings or if he/she is found
guilty in the criminal prosecution against him/her, the
findings of the sealed cover/covers shall not be acted upon.
His/her case for promotion may be considered by the next
DPC in the normal course and having regard to the penalty
imposed on him/her (para 3.1 of DoPT OM dated 14.9.92).
g) In assessing the suitability of the officer on whom a penalty
has been imposed, the DPC will take into account the
circumstances leading to the imposition of the penalty and
decide whether in the light of general service record of the
officer and the fact of imposition of penalty, the officer should
be considered for promotion. The DPC, after due
consideration, has authority to assess the officer as 'unfit' for
.
promotion. However, where the DPC considers that despite
the penalty the officer is suitable for promotion, the officer will
be actually promoted only after the currency of the penalty is
over (para 13 of DoPT OM dated 10.4.89).
h) Any proposal for promotion has to be assessed by the DPC,
on case to case basis, and the practice of downgradation of
APARs (earlier ACRs) by one level in all cases for one time,
where a penalty has been imposed in a year included in the
assessment matrix or till the date of DPC should be
discontinued immediately, being legally non-sustainable.
i) While there is no illegality in denying promotion during the
currency of the penalty, denying promotion in such cases
after the period of penalty is over would be in violation of the
provisions of Article 20 of the Constitution.
j) The appointing authorities concerned should review
comprehensively the cases of Government servants, whose
suitability for promotion to a higher grade has been kept in a
sealed cover on the expiry of 6 months from the date of
convening the first Departmental Promotion Committee which
had adjudged his suitability and kept its findings in the
sealed cover. Such a review should be done subsequently
also every six months. The review should, inter alia, cover the
progress made in the disciplinary proceedings/criminal
prosecution and the further measures to be taken to expedite
the completion. (Para 4 of O.M. dated 14.09.1992)
k) In cases where the disciplinary case/criminal prosecution
against the Government servant is not concluded even after
the expiry of two years from the date of the meeting of the
first DPC which kept its findings in respect of the Government
servant in a sealed cover then subject to condition mentioned
in Para 5 of this Department's O.M. dated 14.09.1992, the
appointing authority may consider desirability of giving him
ad-hoc promotion (Para 5 of this Department's O.M. dated
14.09.1992).
8. All the administrative authorities in the Ministries/Department
are advised to place relevant records, including chargesheet, if any,
issued to the officer concerned, penalty imposed, etc., before the
DPC/ACC who will decide the suitability of officer for promotion
keeping in view the general service records of the officer including
the circumstances leading to the imposition of the chargesheet or
penalty imposed. If such an officer is found suitable, promotion will
be given effect after the currency of the penalty is over.
9. All Ministries/Departments are, therefore, requested to keep in
.
view the above guidelines while convening DPC for promotion of the
Government servants on whom either penalty has been imposed or
where there are adverse remarks in the reckonable ACRs/APARs."
12. Besides above, this Court finds that clause 16.25 of Handbook
On Personnel Matters (Vol.1) (Second Edition), lays down the principles for
promotion to the selection post, which are reproduced herein below:
"16.25 Principles for promotion to Selection posts
e). 27-7-1978 to 15-3-1981
The procedure evolved from 13.2.1978 was not comprehensive and
was stated to be in supersession of all previous
instructions/orders. Accordingly, the Govt. issued comprehensive
instructions prescribing the procedure for preparing select list etc.
on 27.7.1978, which provides that the Departmental Promotion
Committee will assess the confidential repots of the eligible officers
for five years and classify them separately for each year as
""Outstanding"", "Very Good", "Good", and "Fair". This assessment
and classification will be made by the Departmental Promotion
Committee after considering the whole of a particular confidential
report.
Each type of assessment shall carry marks as under:-
Outstanding -5 marks
Very Good -4 marks
Good -3 marks
Fair -2 marks.
Classification for each year shall be evaluated in the form of marks
in the above manner and total marks worked out for five years,
whereafter average marks shall be worked out by diving the total
marks by the same member as the number of years for which
confidential reports have been considered. An officer who gets
marks 4.5 or above in this manner shall be considered to be of
exceptional merit. One getting marks of 3.5 or above but below 4.5
shall be classified as ""Very Good"" and one getting in average of
2.5 or above but below 3.5 marks shall be classified as "Good".
Officers who earn less than 2.5 average marks shall be classified
as unfit for promotion. Those categorized as unfit will be excluded
from the eligibility for promotion.
In a particular slab of three, an officer classified as "Outstanding"(
i.e. possessing exceptional merit) will supersede an officer classified
as ""Very Good"" and officer classified as ""Very Good"" will
.
supersede an officer classified as "Good". However, if in a slab of
three more than one officer have the same classification, the
selection will be made on the basis of seniority.
Where the select list includes persons to whom proforma promotion
is to be given, then the select list should further be extended to the
extent of number of such persons.
(H.P.Govt. Deptt. Of personnel) O.M. No.PER(AP- II)A(3)-9/76 DATED
27-7- 1978 Annexure-16.7).
(f) From 16-3-1981 to 3-11-1981
In partial modification of the. O.M. dated 27.7.1978 (sub para "g"
above) the principles for promotion to selection posts were slightly
revised from 16.3.1981. According to revised procedure the field of
choice, subject to availability or eligible candidates, should extend
to five time the number of vacancies within the year. From amongst
the officers within the field of choice, those who are considered unfit
for promotion should be excluded. The remaining officers should be
classified "outstanding", "very Good", and "Good" on the basis of
merit as determined from their record of service. For this purpose,
Annual Confidential Reports for three to five years should be
considered. After the above grading, the select list should be
prepared by placing the names in order of these three categories,
without disturbing the seniority interse within each category." The
procedure for assessing the overall classification shall be as under:-
i). The Departmental Promotion Committee will assess the
confidential reports of the eligible officers for five years and
classify them separately for each year, as "Outstanding",
"Very Good" and "Fair". The assessment of classification will
be made by the Departmental Promotion Committee after
considering the whole of a particular confidential report.
ii) Each type of assessment shall carry marks as under:-
Outstanding 5 marks
Very Good 4 marks
Good 3 marks
Fair 2 marks
The classification for each year shall be evaluated in the form
of marks in the above manner and the total marks shall be
worked out for five years.
iii) After total evaluation is made as above, average marks
shall be worked out by dividing the total marks by the same
number as the number of years for which confidential reports
have been considered. Thus, an officer who gets average
marks 4.5 or above in this manner shall be considered to be
of exceptional merit. One getting average marks of 3.5 or
above but below 4.5 shall be classified as "Very Good" and
one getting an average of 2.5 or above but below 3.5 marks
.
shall be classified as "Good". Officers who earn less than 2.5
average marks shall be classified as unfit for promotion.
Those categorised as unfit will be excluded from the eligibility
for promotion.
While grading officers as "Oustanding", "Very Good" and "Good",
one should not mechanically follow the grading given by the
Reporting Officers. They should also take into account the nature of
the job against which an individual is posted as well as its
responsibilities. For reports on difficult or higher assignments, the
categorisation may be stepped up by one category in comparison to
similar reports on officers working on junior assignments. For
proper and just assessment, the Senior Officer or an officer doing a
difficult job needs to be assessed very carefully for comparison with
a junior officer or an officer doing a relatively simple job.
(H.P. Govt. Deptt. of Personnel O.M. No. Der (AP-II)-A (1) -1/80 dated
16-3-1981 - Annexure-16.9)
13. It is quite apparent from the bare perusal of the notification
issued by the Government of India as well as clause 16.25 of the Handbook
on Personnel Matters, as has been taken note herein above, that DPC is
required to make its own assessment on the basis of entries in the ACRs
and it is not to be guided merely by overall grading. It also emerges from
the notification as well as provisions contained in the Handbook on
Personnel Matters that DPC is well within its right to upgrade/downgrade
the ACRs of person to be considered for promotion and it is not bound to
mechanically follow the grading given by Reporting/Reviewing Officer.
14. The Hon'ble Apex Court in case titled UPSC v. K. Rajaiah and
Ors, (2005) 10 SCC 15, has categorically held that classification given by
the State is not binding on the committee and the committee can evolve its
own classification, which may be at variance with the gradation given in
.
the ACRs. It would be apt to take note of para 9 of the aforesaid judgment
"9. We cannot also endorse the view taken by the High Court that
consistent with the principle of fair play, the Selection Committee
ought to have recorded reasons while giving a lesser grading to the
1st respondent. The High Court relied on the decision of this Court
in National Institute of Mental Health & Neuro Sciences Vs. Dr. K.
Kalyana Raman & Ors. [AIR 1992 SC 1806]. Far from supporting
the view taken by the High Court, the said decision laid down the
proposition that the function of the Selection Committee being
administrative in nature, it is under no obligation to record the
reasons for its decision when there is no rule or regulation
obligating the Selection Committee to record the reasons. This Court
then observed: (SCC p.485, para 7).
"Even the principles of natural justice do not require an
administrative authority or a Selection Committee or an
Examiner to record reasons for the selection or non selection
of the person in the absence of statutory requirement. This
principle has been stated by this Court in R.S. Dass Vs. Union
of India [1986 (Suppl.) SCC 617] at Page 633.
" n the next paragraph, the learned Judges indicated as to
what is expected of the Selection Committee, in the following
words:
"we may state at the outset that giving of reasons for
decision is different from, and in principle distinct from the
requirements of procedural fairness. The procedural
fairness is the main requirement in the administrative
action. The 'fairness' or 'fair procedure' in the
administration action ought to be observed. The Selection
Committee cannot be an exception to this principle. It must
take a decision reasonably without being guided by
extraneous or irrelevant consideration. But there is nothing
on record to suggest that the Selection Committee did
anything to the contrary "
That being the legal position, the Court should not have
faulted the so called down gradation of the 1st respondent for
one of the years. Legally speaking, the term 'down gradation'
is an inappropriate expression. The power to classify as
'"Outstanding"', '"Very Good"', 'good' and 'unfit' is vested with
the Selection Committee. That is a function incidental to the
selection process. The classification given by the State
Government authorities in the ACRs is not binding on the
Committee. No doubt, the Committee is by and large guided
by the classification adopted by the State Government but, for
good reasons, the Selection Committee can evolve its own
classification which may be at variance with the gradation
given in the ACRs. That is what has been done in the instant
.
case in respect of the year 1993-94. Such classification is
within the prerogative of the Selection Committee and no
reasons need be recorded, though it is desirable that in a
case of gradation at variance with that of the State
Government, it would be desirable to record reasons. But
having regard to the nature of the function and the power
confided to the Selection Committee under Regulation 5(4), it
is not a legal requirement that reasons should be recorded for
classifying an officer at variance with the State Government's
decision".
15. Question at this stage, which also needs to be dealt with is of
scope of judicial review as far as gradation of ACRs by the DPC is
concerned. In this regard, reliance is placed upon the judgment rendered
by the Hon'ble Apex Court in case Anil Katiyar versus Union of India
(1997) 1 Supreme Court Cases 280, wherein it has been held that
correctness of grading given in the ACRs was not subject to the judicial
review unless the selection is assailed as being vitiated by malafides or on
the ground of it being arbitrary. It would be profitable to take note of para-
4 of the aforesaid judgment herein below:-
"4. Having regard to the limited scope of judicial review of the
merits of a selection made for appointment to a service or a civil
post, the Tribunal has rightly proceeded on the basis that it is
not expected to play the role of an appellate authority or an
umpire in the acts and proceedings of the DPC and that it would
not sit in judgment over the selection made by the DPC unless
the selection is assailed as being vitiated by male fides or on the
ground of it being arbitrary. It is not the case of the appellant
that the selection by the DPC was vitiated by mala fides."
16. Reliance is placed upon judgment passed by the Hon'ble Apex
Court in case titled Union of India and Anr. v. S.K. Goel and Ors, (2007)
14 SCC 641, relevant para whereof reads as under:
"28.It was also argued by the learned senior counsel appearing for
.
respondent No.1 that the entries for the period had an element of
adverse reflection and for that purpose the seniority of respondent
No.1 was downgraded and, therefore, the ACR ought to have been
communicated to respondent No.1. In our opinion, the observations
of the High Court are wholly unjustified inasmuch as the post of
Commissioner of Customs and Central Excise is a post required to
be filled up on selection made strictly on the basis of merit. No
judicial review of DPC proceedings, which are ordinarily conducted
in accordance with the standing government instructions and Rules
is warranted. The norms and procedure for DPC are prescribed in
O.M. dated 10.4.1989. It is thus seen that the decision taken by the
appellants has been as per the instructions issued on the subject
that only adverse entries and remarks are to be communicated and
there is no provision to communicate the downgrading of ACR to a
government employee. The decision of the Central Government is in
strict accordance with the prevailing rules and government
instructions. In the absence of any violation, the impugned order of
the High Court while undertaking a judicial review under Art.
226 of the Constitution of India, is wholly unjustified. Since the
matter of seniority has been well settled and this Court in a
plethora of cases has held that the seniority/promotion granted on
the strength of DPC selection should not be unsettled after a lapse
of time. Therefore, in the facts and circumstances of the present
case, where there is no adverse remarks whatsoever against
respondent No.1, the High Court ought not to have interfered with
and passed the impugned direction. This apart, as per the
instructions contained in para 6.21 of DOPT Order No.
22011/5/86/Estt. D dated 19.4.1981, as amended, the DPC is not
required to be guided merely by the overall grading, if any, that
may be recorded in the CRs but to make its own assessment on the
basis of the entries in the CRs. The DPC enjoyed full discretion to
devise its method and procedure for objective assessment of
suitability and merit of the candidate being considered by it. Hence,
the impugned order of the High Court, in our opinion, is liable to be
set aside."
17. Reliance is also placed on Union of India and Anr. v. A.K.
Narula, 2007 (11) SCC 10, relevant para whereof reads as under:
"15. The guidelines give a certain amount of play in the joints to the
DPC by providing that it need not be guided by the overall grading
recorded in the CRs, but may make its own assessment on the
basis of the entries in the CRs. The DPC is required to make an
overall assessment of the performance of each candidate
separately, but by adopting the same standards, yardsticks and
norms. It is only when the process of assessment is vitiated either
on the ground of bias, malafides or arbitrariness, the selection calls
.
for interference. Where the DPC has proceeded in a fair, impartial
and reasonable manner, by applying the same yardstick and
norms to all candidates and there is no arbitrariness in the process
of assessment by the DPC, the court will not interfere (vide State
Bank of India v. Mohd. Mynuddin [1987 (4) SCC 486], Union Public
Service Commission v. Hiranyalal Dev [1988 (2) SCC 242]
and Badrinath v. Government of Tamil Nadu [2000 (8) SCC 395]).
The review DPC reconsidered the matter and has given detailed
reasons as to why the case of the respondent was not similar to
that of R S Virk. If in those circumstances, the Review DPC decided
not to change the grading of the respondent for the period 1.4.1987
to 31.3.1988 from 'good' to 'very good', the overall grading of the
respondent continued to remain as 'good'. There was no question of
moving him from the block of officers with the overall rating of 'good'
to the block of officers with the overall rating of 'very good' and
promoting him with reference to the DPC dated 13.6.1990. In the
absence of any allegation of mala fide or bias against the DPC and
in the absence of any arbitrariness in the manner in which
assessment has been made, the High Court was not justified in
directing that the benefit of upgrading be given to respondent, as
was done in the case of R. S. Virk."
18. Reliance is also placed upon the judgment rendered by this
Court in case titled Brijesh Sood v. State of HP and Ors, 2021 (3)
Shimla Law Cases 1270, wherein this Court while placing reliance upon
the aforesaid judgments held that the correctness of grading given in ACRs
is not subject to judicial review, but also held that DPC is well within its
right to upgrade/downgrade the ACRs of person to be considered for
promotion and it is not bound to mechanically follow the grading given by
Reporting/Reviewing Officer.
19. Careful perusal of aforesaid exposition of law taken into
consideration clearly reveals that decision of DPC is not subject to judicial
review unless selection is assailed as being vitiated by the malafidies or on
the ground of it being arbitrary. Similarly, it is quite apparent from the
.
perusal of the notifications issued by the government from time to time and
the judgments relied upon herein above, that DPC is necessarily required to
make its own assessment on the basis of entries in the ACRs and is not to
be guided by the overall grading given by the reporting/reviewing officers.
20. Now being guided by the aforesaid instructions issued by the
Government of India as well as State of Himachal Pradesh and law on the
point, this court would make an endeavour to ascertain the correctness of
submissions having been made by the learned counsel for the parties vis-à-
vis correctness of the decision made by the Departmental Promotion
Committee recommending respondent No.3 for promotion to the post of
Executive Engineer and thereafter to Superintending Engineer. There
cannot be any dispute to the fact that ACRs of respondent No.3 were
downgraded by the Reviewing Authority from "very good" to "good" and as
such, she was compelled to approach the competent court of law, which
permitted her to make representation to the Secretary (Housing) to make
representation. It is also not in dispute that Additional Chief Secretary
(Housing) to the Govt. of Himachal Pradesh, passed order dated 17.8.2017
on the representation of respondent No.3 (Annexure P-7), whereby ACRS for
the year, 2003, 2004, 2005 and 2006 were ordered to be upgraded from
"good" to "very good". Though aforesaid order was laid challenge by the
.
petitioner, wherein Division Bench of this Court vide judgment dated
24.7.2019, held that the petitioner herein has no locus to lay challenge to
the up-gradation of the ACRs, if any, of respondent No.3.
21. Now question remains whether ACRS upgraded by the
Secretary (Housing) on the representation having been made by respondent
No.3 could be mechanically accepted by the DPC while considering the
petitioner for promotion to the post of Executive Engineer and thereafter to
Superintending Engineer or it was required to make its own assessment on
the basis of entries made in the ACRs for the relevant years.
22. Though Mr. Dilip Sharma, learned senior counsel representing
respondent No.3, made a serious attempt to persuade this Court to agree
with his contention that since ACRs stood upgraded pursuant to order
passed by the Secretary (Housing) on the representation filed by respondent
No.3, there was no occasion, if any, for DPC to look into the record of ACRs
for relevant years, but after having carefully perused office memorandums
issued by the Ministry of Personal Public Grievance and Pension,
Government of India, from time to time as well as judgments on the subject
rendered by the Honble Apex Court as well as this Court from time to time,
this Court finds no reason to agree with the aforesaid contention of Mr.
Sharma, learned Senior Counsel. By now it is well settled that DPC is
.
required to make its own assessment on the basis of entries in the ACRs
and not to be merely guided by overall grading and in cases where the
assessment by DPC(s) are apparently not in line with the grades in ACRs,
the DPC should appropriately substantiate its assessment by giving
reasons, which can only be done after perusing the entire record of ACRs.
Mr. Sharma, tried to carve out a case that need for DPC to peruse the entire
record would only arise if it disagrees with the overall grading given to the
office being considered for promotion. However, this Court does not
subscribe to the aforesaid view for the reason that before making the overall
grading after considering the ACRs for the relevant years, DPC otherwise is
required to take into account major or minor penalties and adverse
remarks in the ACRs for the period under consideration. While clarifying
the aforesaid aspect of the matter, Ministry of Personnel, Public Grievances
and Pension, vide office memorandum dated 28.4.2014, has categorically
stated that DPC should not be guided merely by the overall grading, if any,
that may be recorded in the ACRs, but should also make its own
assessment on the basis of entries in the ACRs because it has been noticed
that sometimes the overall grading in the ACRs may be inconsistent with
the grades under various parameters or attributes. Hon'ble Apex Court in
various judgments as have been taken note herein above, has repeatedly
.
held that DPC is required to make an overall assessment of the
performance of each candidate separately, but by adopting the same
standards, yardsticks and norms and when process of assessment is
vitiated either on account of bias, malafides or arbitrariness, the selection
calls for interference. Where the DPC has proceeded in a fair, impartial and
reasonable manner, by applying the same yardstick and norms to all
candidates and there is no arbitrariness in the process of assessment by
the DPC, the court would normally not interfere. Though an employee has
no right to promotion, but definitely, he has right to be considered for
promotion. The promotion to a post and more so, to a selection post,
depends upon several circumstances. Person desiring to have promotion is
definitely expected to be an employee of a unblemished record and as such,
DPC while considering person concerned for promotion needs to examine
his/her entire record and cannot be guided merely by overall grading given
in the ACRs because sometimes same may not be consistent with the
grades under various parameters or attributes. No doubt, DPC enjoys full
discretion to devise its method and procedure for objective assessment of
suitability and merit of the candidate being considered by it and evaluation
made by an Expert Committee should not be easily interfered with by the
Court but once assessment smacks of bias, malafides or arbitrariness, the
.
selection calls for interference.
23. Mr. Dilip Sharma, learned counsel for respondent No.3
vehemently argued that since there is no malafide, if any, alleged against
the members of the DPC and it while assessing the petitioner and
respondent No.3 for promotion have adopted same yardsticks, there is no
occasion, if any, for this court to intervene. No doubt, no specific malafides
have been alleged in the petition against the members of DPC, and
similarly, record placed on record reveals that DPC promoted both the
petitioner and respondent No.3 on the basis of their overall grading, which
in the case of respondent No.3, was upgraded by the Secretary (Housing),
but once there is a complete departure from the laid down procedure,
whereby DPC is/was under obligation to make its own assessment on the
basis of entries in the ACRs and it only having taken note of the overall
grading proceeded to recommend the candidate concerned for promotion,
the decision being totally contrary to the law needs to be interfered with.
Though Mr. Sharma while making this court peruse record of DPC
strenuously argued that the entire record of ACRs was seen by the DPC,
but such submission of him is not tenable being totally contrary to the
record. DPC proceedings held on 9.8.2019 and 16.8.2019 (P-19 and P-20)
clearly reveal that DPC appreciated the revised ACRs of Smt. Anjori Kapoor-
.
respondent No.3 and the petitioner, meaning thereby, at no point of time,
DPC made an effort/endeavour to look into the ACRs of the relevant years
so that it could see whether overall grading given by the competent
authority while upgrading her from "good" to "very good" is in consonance
with the grading under various parameters or attributes. Interestingly,
DPC in its meeting held on 9.8.2019, recommended respondent No.3 for
promotion as Executive Engineer from Assistant Engineer w.e.f. 16.6.2007
and subsequently on the basis of same, in its next meeting held on
16.8.2019, recommended respondent No.3 for promotion to the post of
Superintending Engineer. Having carefully perused the record of DPC as
has taken note herein above, this court is fully convinced and satisfied that
DPC in slipshod manner, without perusing ACRs of the officers being
considered for promotion for the relevant years proceeded to make
recommendation merely on the basis of ACRs revised on the order of
Additional Chief Secretary HIMUDA. Aforesaid conclusion drawn by this
Court is further substantiated from the noting given by the Minister
Incharge, P-26, who being dissatisfied with the decision of DPC ordered for
revised DPC. Interestingly, this Court finds from the record that pursuant
to orders passed by the Minister Incharge, Review DPC was to be
conducted, however, in the case at hand, meeting of Review DPC came to
.
be held to further review the minutes of review DPCs held on 9.8.2019 and
16.8.2019. Careful perusal of minutes of aforesaid meeting nowhere
suggests that Review DPC proposed to be held by the Minister Incharge
scanned the entire record of the candidate being considered for promotion
de-novo. Rather, Review DPC under the chairmanship of Secretary
(Housing) Government of Himachal Pradesh merely held the meeting to
review/ consider further review of Review DPC held on 9.8.2019 and
16.8.2019.
It has been specifically recorded in the minutes of this
committee that "the present DPC also finds no reason not to upgrade ACRs
in respect of Smt. Anjori Kapoor, for consideration as the same has been
decided by the competent authority with a detailed and speaking order also
in compliance of the Hon'ble Court order."
24. The committee noticed that there is no circumstance, which
can be considered for having further review of Review DPC held on 9.8.2019
for the post of Executive Engineer (Civil) and on 16.8.2019, for the post of
Superintending Engineer and found that the Review DPCs dated 9.8.2019
and 16.8.2019 have been convened in accordance with the prescribed
procedure. Minutes of meeting held on 30.12.2019 (Annexure P-21) itself
suggest that no Review DPC, if any, ever came to be held pursuant to the
direction issued by the Minister Incharge, who being fully dissatisfied with
.
the minutes of DPC, held on 9.8.2019 had specifically ordered for review
DPC, rather fresh Review DPC though held its meeting on 30.12.2019, but
not conducted fresh proceedings, rather concluded in its recommendation
that there is no reason to consider further review of review DPC held on
9.8.2019 and 16.8.2019 for the posts in question. Since order upgrading
ACRs in respect of respondent No.3 was passed by the competent authority
with a detailed and speaking order, DPC deemed it not fit to tinker with the
same. It appears that DPC was so much overawed with the order passed
by the Secretary (Housing) upgrading the ACRs of respondent No.3 that it
thought not proper to follow the prescribed procedure while recommending
respondent No.3 for promotion. No doubt, ACRs of respondent No.3 came
to be upgraded from "good" to "very good" pursuant to order passed by the
Secretary (Housing), but DPC while considering respondent No.3 for
promotion is/was under obligation to see the entire record of ACRs for the
relevant years to ascertain whether overall grading given in favour of
respondent No.3 is consistent with the grades under various parameters or
attributes. True, it is that Secretary (Housing) being Appellate Authority
was well within his/her rights to upgrade or downgrade the ACRs of
respondent No.3 on her representation, but order of up-gradation, if any,
by Secretary (Housing) being appellate authority could not be taken as a
.
gospel truth by the DPC while considering respondent No.3 for promotion,
rather it was under obligation to scan the entire service record of her
including ACRs for the relevant years to ascertain whether overall grading
is consistent with the grades under various parameters. Mere up-gradation
of overall grading by the competent authority/Secretary (Housing) would
not make respondent No.3 entitled for promotion, rather for that purpose,
entire service record is/was required to be taken into consideration by the
DPC as has been repeatedly advised/clarified by the Government of India
from time to time by issuing circulars as have been taken herein above. No
doubt, the Division Bench of this Court has already held that the petitioner
herein has no locus to challenge the up-gradation of the ACRs of
respondent No.3, but that does not mean that DPC is estopped from
perusing the entire service record of respondent No.3 including the ACRs of
the relevant years while considering her for promotion. DPC being
specialized agency is not to be guided by the overall grading, but to ensure
that sincere, deserving and hardworking officer is promoted, it is required
to make its own assessment on the basis of entries in the ACRs. While
doing so, it is not merely to take into consideration the fact that over all
grading of respondent No.3 stands upgraded by the Secretary (Housing),
rather it is/was under duty to see whether up-gradation made by the
.
Secretary (Housing) is in consonance with the grades given under various
parameters in the ACRs of respondent No.3 for the relevant years. Though
entire record of ACRs of respondent No.3 for the relevant years stands
annexed with the petition, which is otherwise not disputed/refuted, but any
finding qua the same at this stage by this Court would amount to
substitution of opinion/decision, if any, to be arrived/formed by the DPC if
it is ordered to review its decision for the reasons stated herein above.
Hence, this court purposely restrains itself to not to go into that aspect of
the matter at this stage.
25. There is yet another aspect of the matter that Secretary
HIMUDA vide notification dated 14.7.2005 (P-23), itself ordered that DPC
would consist of following officers; 1.) Principal Secretary (Housing) as
Chairman; 2.) CEO-cum-Secretary as Member; and 3.) Executive Engineer
HIMUDA as Member. But if the minutes of review DPC held on 30.12.2019
(P-21) which upheld the recommendation of earlier review Departmental
Promotion Committee held on 9.8.2019 is seen, it clearly reveals that such
meeting held under the Chairmanship of CEO-cum-Secretary HIMUDA, but
at no point of time, Executive Director, HIMUDA came to be associated in
meeting. Though Mr. Amit Singh Chandel, learned counsel for the
respondent HIMUDA argued that since the Executive Director was not
.
available and meeting of DPC was to be held in a time bound manner
pursuant to orders passed by this Court, Deputy Secretary (Personal) to the
Government of Himachal Pradesh was associated, but it cannot be denied
that Deputy Secretary (Personal) to the Government of Himachal Pradesh
had no knowledge whatsoever about the working of the petitioner as well as
respondent No.3 and as such, department could have waited for some time
to ensure the presence of the Executive Director HIMUDA. Be that as it
may, since there is specific composition provided under the Rules for
formation of DPC for constitution of DPC, department could not have made
any departure from the well settled norms and conventions.
26. Reliance is placed upon the judgment rendered by the Hon'ble
Supreme Court in similar case titled Sunder Lal v. Union of India and
Ors, 2000 (10) SCC 409, wherein it has been held as under:
"5. Despite this, as per the office order dated 9-8-1995, the
Departmental Promotion Committee for various Group 'A' and 'B'
posts in the Official Languages Wing, Legislative Department,
Ministry of Law, Justice and Company Affairs was constituted as
follows:
(A) For promotion to the grades of Joint Secretary and Legislative
Counsel (Hindi Branch):
(a) Chairman/Member, Union Public Service Chairman
Commission
(b) Secretary, Legislative Department Member
(c) Additional Secretary, Legislative Department Member
.
(d) An officer of the appropriate level belonging to Member
a Scheduled Caste/Scheduled Tribe to be co-
opted from any other ministry/department
6. Before the Tribunal, it was pointed out that the addition of the 4th
Member was not necessary in view of the fact that the Secretary,
Legislative Department himself was belonging to a Scheduled Caste
and there was no necessity of co-opting for the 4th member.
7. In our view, the finding given by the Tribunal cannot be said to
be in any way illegal or erroneous. Statutory rule for the
constitution of a Departmental Promotion Committee provides that
the Committee shall consist of three named members, i.e. (i)
Chairman/Member, UPSC-Chairman; (ii) Secretary, Legislative
Department -Member; and (iii) Additional Secretary, Legislative
Department -Member. The office memorandum dated 10-4-1989
also specifically provides that if none of the officers included in DPC
as per the composition given in the recruitment rules is an SC or ST
officer, it would be in order to co-opt a member belonging to the SC
or ST, if available within the ministry/department. In view of the
admitted fact that the Secretary, Legislative Department himself
was belonging to a Scheduled Caste, addition of the fourth member
in the Committee was not justified.
8. Therefore, in our view, the order passed by the Tribunal is just
and in accordance with the statutory rules. The appeal is
dismissed. There will be no order as to costs."
27. Consequently, in view the detailed discussion made herein
above as well as law taken note herein above, this Court finds merit in the
present petition and accordingly, same is allowed and minutes of meeting
held for the post of Executive Engineer (Civil) and Superintending Engineer
dated 9.8.2019 (Annexure P-19) and 16.8.2019 (P-20) and review of review
DPC meeting dated 30.12.2019 (P-21) are quashed and set-aside, as a
consequence of which, order dated 1.1.2020 (Annexure-P-22), promoting
respondent No.3 to the post of Superintending Engineer is also quashed
and set-aside. Respondents are directed to re-convene the DPC, which
while considering respondent No.3 for promotion shall take into account
.
her entire record of ACRs, to arrive at a decision, whether upgradation of
overall grading is consistent/in consonance with the grades /parameters
recorded in the ACRs for the relevant years. Since dispute inter-se
petitioner and respondent No.3 is hanging fire for the last 14 years, this
court hopes and trusts that necessary steps or reconvening of DPC by the
department shall be positively taken within a period of two weeks so that
entire exercise is done by the DPC within four weeks from the receipt of
copy of the judgment. In the aforesaid terms, present petition is disposed
of, alongwith pending applications, if any.
17th December, 2021 (Sandeep Sharma),
(manjit) Judge
