Full Text
HIGH COURT OF DELHI
Judgement reserved on: 28.10.2021
Judgement pronounced on: 28.02.2022
ASI RAVINDER SINGH ......Petitioner
Through : Mr Inderjit Singh and Mr Gurjeet Singh, Advocates.
Through : Ms Shiva Lakshmi, Advocate.
HON'BLE MR JUSTICE TALWANT SINGH TALWANT SINGH, J.:
JUDGMENT
1. The respondent-Union of India (UOI) has filed the present review petition under Section 137 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 against the final judgment and order dated 05.11.2019, passed by this Court in W.P (C) 12302/2018. Vide the said judgment/order, the writ petition filed by the petitioner was allowed in the following terms: “Consequently, the petition is allowed with the following directions: (i) Appropriate orders will be issued by the Respondents within a period of eight weeks granting the Petitioner the benefit of the first and second ACP and MACP by treating the period between the date of his retirement i.e. 18th 2022:DHC:809-DB REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 2 of 12 June, 2008 and his reinstatement by the order 9th June, 2010, as period spent on service.
(ii) The Respondents will pay the Petitioner the arrears within a further period of eight weeks thereafter, failing which, the Petitioner will be entitled to simple interest @ 6% per annum for the period of delay.
(iii) Within a period of eight weeks from today, the Respondents will issue the necessary orders as regards the promotion of the Petitioner as SI and thereafter as Inspector from the date his juniors were promoted and would be given all consequential benefits.”
2. Feeling aggrieved, the respondent had filed a Special Leave Petition (SLP) before the Hon’ble Supreme Court, where liberty was granted to the respondents to file a review petition of order dated 05.11.2019 passed in the writ petition W.P.(C) 12302/2018, before this Court. The observation made by the Hon’ble Supreme Court in its order dated 05.01.2021 has been reproduced in the review petition as under: “3) The submissions before this court is that the events which had taken place prior to the judgment of the High Court, were placed in the form of counter affidavit before the High Court. 4)Having regard to the nature of the nature of the above submission, we grant liberty to the Petitioners to move the High Court by way of review on the grounds which are raised in the Special Leave Petition. In the event that the Petitioners are aggrieved by the final judgment of the High Court in review, it will be open to them to pursue their remedies afresh including on the grounds which are raised in the present proceedings.
3. As per the review petitioners, an inadvertent error has crept in the judgment and order dated 05.11.2019 as this Court has failed to appreciate the fact that, below benchmark Annual Confidential Report (‘ACR’) for the assessment years 2005-06, 2006-07 and 2007-08 were communicated to the REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 3 of 12 petitioner vide order dated 06.09.2013 and the representation made by the petitioner on the same day against the adverse remarks for the year 2006-07 and 2007-08 was rejected and these remarks were not expunged and this decision was communicated to the petitioner on 04.03.2014. Moreover, the petitioner had not submitted any representation against the adverse remarks in ACR for the year 2005-06.
3.1. So, this Court had failed to appreciate that the petitioner was ineligible for the first Assured Career Progression (ACP)as he was granted promotion to the rank of Head Constable (GD) w.e.f. 10.10.1997. Moreover, he was not eligible for grant of second ACP since he did not fulfil the eligibility criteria. However, the second Modified Assured Career Progression (MACP) was granted to the petitioner on 01.09.2008 and third MACP was granted w.e.f. 01.04.2015 vide order dated 21.08.2017.
3.2. It has also been pleaded by the review petitioner that, if the petitioner is considered for promotion to the rank of ASI (GD), without considering the above-mentioned below benchmark gradings of ACRs for the year 2005- 2006, 2006-2007 and 2007-2008 in the DPC List-C held on 05.05.2011 and subsequent DPCs, the same will be in contravention to the instructions of the Department of Personnel and Training (DoPT) and it will open a Pandora box.
3.3. In the grounds of review, it has been mentioned that this Court failed to correctly apply the law laid down by the Hon’ble Supreme Court in the matter of Dev Dutt vs. Union of India & Ors., 2008 (8) SCC 725, wherein it was held that every entry, adverse or not, relating to a public servant be communicated to him and he should have a right to make a representation against the said entry before the concerned authority. As per the REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 4 of 12 respondents, petitioner was communicated the ACRs for the relevant period vide letter dated 06.09.2013, against which representation was made and the competent authority decided not to expunge adverse remarks.
3.4. It has also been mentioned that this Court did not take into consideration the subsequent judgment of Hon’ble Supreme Court in a batch of Civil Appeals with the main Civil Appeal bearing no. 1298-1299 of 2017 titled “A.K. Gupta vs. Union of India & Anr.”, wherein the Supreme Court has taken the view that the adverse entry, if not communicated in time, its effect cannot be wiped out. The Court further directed Union of India to communicate the adverse entry to the respondents and they be allowed to make representations and in case the ACRs are upgraded, then review Departmental Promotion committee (DPC) may be held.
3.5. It is also the case of the respondents that, the time prescribed in the circular for communication of the adverse entry is not mandatory but discretionary, and if the adverse entry is not communicated in time, it is not wiped out.
3.6. The case of the review petitioner is that, there are no further representations/appeal provided after the decision of the competent authority on the representation submitted by the concerned official against the grant of adverse remarks/below benchmark grading in his Annual Performance Appraisal Report (APAR). The DPC was to assess the suitability of the employees on the basis of ACRs for the five preceding years, irrespective of qualifying service prescribed in the service rules. If ACR has not been written for any reason, the ACR for the preceding year is to be taken into consideration. The name of the petitioner was considered in the DPC held on 05.05.2011, where the DPC List-C assessed his overall aggregate marks REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 5 of 12 at 50%. The name of the petitioner was again considered in the subsequent DPC held on 28.12.2012, 09.09.2013, 15.09.2014 and 24.07.2015. The petitioner could not make the grade due to adverse/below benchmark of his ACRs/APARs and DPC assessed him deferred/unfit. The first ACP scheme was not applicable to the petitioner since he was promoted (merged) to the rank of HC (GD) w.e.f. 10.10.1997 before start of ACP Scheme i.e., on 09.08.1999. He was not eligible for 2nd ACP on completion of 24 years of regular service till date of operation of ACP scheme i.e., till 31.08.2008 as he had not fulfilled the eligibility criteria as prescribed in DoP&T OM dated 09.08.1999.
3.7. The Departmental Screening Committee (DSC) declared him ‘unfit’ vide 165 Bn BSF Order No. 1689-90 dated 13.02.2020. The record of the petitioner was assessed by DSC for grant of 3rd financial upgradation for MACP in Grade Pay of Rs.4200/- in Pay Band-II on 15.07.2011 and 19.03.2012 but he did not fulfil the required benchmark of ACRs/APARs being “Good”. His record was again assessed by DSC on 23.09.2016 for grant of 3rd MACP and accordingly he was recommended for grant of 3rd MACP w.e.f. 01.04.2015 in the Grade Pay of Rs.4,200/- in PB-II. Accordingly, the petitioner was granted 3rd MACP w.e.f. 01.04.2015 vide 16 Bn BSF Order No. 20900-10 dated 28.12.2016. Petitioner was granted 2nd and 3rd MACP on 01.09.2008 and 01.04.2015 vide 16 Bn BSF Order NO. 11946-48dated 21.08.2017. This order has not been quashed and it has not been held that the same is illegal, so the petitioner was rightly granted 2nd and 3rd MACP in accordance with the government instructions.
3.8. The petitioner was cleared for promotion to the rank of ASI (GD) w.e.f. 09.09.2016, as and when he fulfilled the eligibility criteria. The said REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 6 of 12 order dated 09.09.2016 has not been quashed and it has not been held that the promotion of the petitioner through the said order dated 09.09.2016 is illegal.
4. Reply to the review petition was filed by the petitioner. It is stated that the petitioner was ordered to retire on 18.06.2008, but on the basis of the representation submitted by him, the said order was set aside by Director General (DG), Border Security Force (BSF) on 09.06.2010 and he was ordered to be reinstated in service, and the period of absence was directed to be regularised in accordance with the provisions of Fundamental Rule (FR)
54. This Court has observed that ACRs for the years 2005-06, 2006-07, 2007-08 could not be communicated to the petitioner soon after the said ACRs were written and the non-communication of the said grading would render them non-est for the purpose of considering the petitioner for promotion. It was further held by this Court that every entry in the ACR must be communicated to the petitioner within a reasonable period and such non-communication is arbitrary, as such violative of Article 14 of the Constitution. On the basis of these facts, it has been submitted that the law was correctly applied by this Court.
5. We have heard arguments in the review petition. It is not in dispute that the ACRs of the petitioner for the years 2005-06, 2006-07, and 2007-08 were not communicated to the petitioner within a reasonable time after the same were recorded. The contention of the respondent is that the said adverse entries in the ACRs were put to the notice of the petitioner vide letter dated 06.09.2013. There is a considerable gap between the dates when the ACRs were written and the date when the same were communicated to the petitioner. In between, a lot of incidents had taken place; the petitioner REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 7 of 12 was ordered to be retired on 18.06.2008; he served a representation/legal notice and the same was accepted by DG BSF on 09.06.2010; the petitioner was reinstated in service. The said reinstatement order refers to F.R. 54 for regularization of the period of absence of the petitioner. The case of the petitioner is that, the said period was accordingly regularized and he was granted continuity in service. The case of the respondent is that since the petitioner had not worked for about 2 years i.e., from July 2008 to June 2010, his ACRs for the year 2008-09, and 2009-10 could not be recorded.
6. The main question to be decided by the bench is as to, whether the communication of ACRs for the period 2005 to 2008 in the year 2013 is proper or not. The Supreme Court in Dev Dutt vs. UOI & Ors. (supra) while dealing with this situation has held as under: “38. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of nonarbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.”
7. Admittedly in the present case, there is considerable gap i.e., 5 to 8 years from the respective dates of recording of ACRs till the date when the same were communicated to the present petitioner, which is a clear violation of judgment of the Hon’ble Supreme Court in the matter of Dev Dutt vs. UOI & Ors. (supra).
8. The review petitioner has relied upon a judgment of Division Bench of the Hon’ble Supreme Court in the matter of A.K. Gupta vs. Union of India & Anr., Civil Appeal, 1298-1299/2017, decided on 31.01.2017. In the said case, below benchmark ACRs were not communicated to the appellant but he was not considered for promotion on the basis of said below bench mark ACRs, so he challenged the same by filing an OA before the Central Administrative Tribunal [CAT]; after hearing the parties, the CAT ordered that the ACRs, which were not ‘Very Good,’ be ignored. The UOI challenged the said order of CAT before High Court and the High Court directed the department to communicate the below benchmark ACRs to the employee, who would have right to file representation. The employee REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 9 of 12 challenged the said order before Hon’ble Supreme Court on the ground that, at that stage, requiring him to make representation would serve no purpose as he had retired and the persons responsible for recording his ACRs had also retired. It appears that, side by side, the employee had submitted the representation to department. By the time the matter came up for hearing before the Hon’ble Supreme Court, the department had already upgraded the ACRs, so it was directed to hold review DPC for promotion.
8.1. In connected matter being Civil Appeal no. 1297/2017, Hon’ble Supreme Court directed the Union of India to convey the downgrading remarks/adverse remarks for the relevant years to the appellant within four weeks and the appellant was given 2 weeks’ time to file the representation and if the representation would be accepted, a review DPC was ordered to be held and notional benefits with or without any financial/ consequential benefits were ordered to be granted. 8.[2] In Civil Appeal Nos. 295-296/2012, it was observed that in pursuance of the orders of the High Court, the ACRs in question were communicated, against which the appellant Mr. R. K. Pahwa had submitted a representation but the same was rejected and in view of the above, no further order wascalled for. However, it was made clear that the appellant was not debarred from challenging the order of rejection of his representation in accordance with law, if so advised, within one month from the said date.
9. In the case in hand, there is a delay in communicating the adverse entries/ below benchmark ACRS to the petitioner. There is no explanation regarding the said delay. Copy of the letter dated 06.09.2013, by which below benchmarks were communicated for the first time for the years 2005- 06, 2006-07, and 2007-08 is on record and the same reads as under: REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 10 of 12 “CONFIDENTIAL Tac HQ-16 Bn BSF C/0 56 A.P.O. No, Steno/APAR/16BN/2013497-98 Dated, the 6 Sept. 2013 No. 80001660 HC Ravindra Singh "B" Coy, 16 Bn BSF SUB: DISCLOSURE OF ACT-BFLOW BENCFI MARK The substance of remarks which were recorded while you are remained posted to 194 Bn BSF in your Annual Performance Assessment Report for the year 2005-06, 2006-07 and 2007-08 are enclosed herewith for your information and necessary action.
2. The Average remarks are being conveyed to you with a view to help you to improve upon your performance in the light thereof.
3. Representation, in duplicate, against the above average remarks, should be made within 15 days of the date of communication of these remarks through proper channel.
4 In this connection, your attention is invited to the instructions issued by the Govt of India and BSF APAR procedure and instruction that, if the competent authority after examining the representation of the officer against the average remarks recorded in Annual Performance Assessment Report, finds that the remarks were justified and the representation is frivolous, a note will be made in the Annual Performance Assessment Report of the Govt, Servant that he did not take the said remarks in good spirit. The same set of instruction also provide that only one representation against the average remarks.
5. Please ask receipt of this letter in the enclosed Performa. (A K SAHA) DY COMDT/ADJT FOR COMMANDANT 16 BN BSF”
10. A half hearted approach is reflected in the contents of the above letter to comply with the prevailing legal position, as is clear from the wording of para 2 quoted above. We cannot understand how the employee was expected to improve his performance in the succeeding years to which the below benchmark ACRs related, when the same were communicated to him after a gap of 5-8 years.
11. A three judge bench of the Hon’ble Supreme Court in the matter of ‘Sukhdev Singh vs Union of India & Ors.’ AIR 2013 SC 2741 has reiterated the law in this regard as under: “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period.”
12. The law laid down in Dev Dutt (Supra) in regard to communication of below benchmark ACRs in a reasonable time remains the same, albeit reiterated by the three judge bench of the Hon’ble Supreme Court in Sukhdev Singh (Supra). There is no sanctity to the action of the respondents in REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 12 of 12 communicating the below benchmark ACRs to the petitioner after a gap of 5-8 years. The said ACRs are to be ignored for the purpose of assessment of the performance record of the petitioner for grant of ACP/MACP. The gap in service is to be regularised in terms of F.R. 54 and petitioner is to be considered to be in service for all intents and purposes.
13. There is no sustainable ground to review and set aside the judgment dated 05.11.2019. The review petition is without any merit, and the same is hereby dismissed. Other pending applications are also closed.
TALWANT SINGH, J. RAJIV SHAKDHER, J. FEBRUARY 28, 2022 nk