Punjab National Bank & Anr v. S K Kardam

14. The Learned Single Judge has primarily based its judgment on the plea of the respondent that the ACR for the period 2010-11 had been downgraded to a low score of 65. The said ACR had an impact on the average marks of the respondent and was a cause for his nonpromotion. The Learned Single Judge came to a finding that the downgraded ACR had never been communicated to the respondent before holding the DPC for the promotion in question. Reliance was placed on the law laid down by the Apex Court in the case of Dev Dutt Vs. Union of India & others, reported in AIR 2008 SC 2513 and the three Bench judgment in the case of Sukhdev Singh Vs. Union of India & others, reported in 2013 (9) SCC 566 for the proposition that an ACR which is below the bench mark or is downgraded requires to be communicated to the employee before it is considered in the DPC for promotion. An opportunity of representation must be afforded to the employee against the downgraded ACR. Reliance was also placed on the judgment of the Apex Court in Abhijit Ghosh Dastidar Vs. Union of India & others reported as 2009 (16) SCC 146 which was followed by a Co-ordinate Bench of this Court in the case of Vs. V.S. Arora, reported in 2012 (8) AD (Delhi) 365 for the proposition that if an ACR is uncommunicated the same must be ignored and should not be taken into account by the DPC.

15. Learned Single Judge also agreed with the contention of the respondent that since he belonged to SC category, there was a bias against him and deliberately a low score had been given to him in that particular year, in the ACR. The Court came to a conclusion that the reporting authority was biased, from the fact that the performance of the respondent in all the other years i.e. 2009-10, 2011-12, 2012-13 and 2013-14 was correctly assessed and the marks scored were much higher while for the same job and identical performance, a low score had been given in the impugned ACR. The Learned Single Judge thereafter made a calculation of the average of the ACRs of four years in the reckoning for the promotion and arrived at a figure of 82.25 as marks to be considered for the year 2010-11. Thereafter another calculation was arrived at by taking these as the marks for 2010-11 and a figure of 82.[3] was arrived at out of 100 marks being the overall marks for the five years. By this methodology, the Single Judge came to a finding that if the impugned ACR did not have a low score, the respondent would have been promoted.

16. Learned counsel for the appellants submits that the Learned Single Judge has wrongly applied the law laid down in the following cases –

(i) Dev Dutt (supra), (ii) Sukhdev Singh (supra) (iii) Abhijit Ghosh

Dastidar (supra) and (iv) V.S. Arora (supra).

17. Mr. Gautam, counsel for the appellants submits that while deciding the case of Sukhdev Singh (supra), the Supreme Court held that they were in complete agreement with the view taken in the case of Dev Dutt (supra). He further submits that in Dev Dutt (supra) the Court only laid down the law that downgraded ACRs should be communicated and the employee could make a representation thereafter.

18. Paras 8, 22, 37 & 41 of Dev Dutt’s case (supra) relied upon by the appellants are reproduced as under:

On the strength of the above decisions learned counsel for the respondent submitted that only an adverse entry needs to be communicated to an employee. We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved.

22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.

37. 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 authority concerned, and the authority concerned 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.

41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such noncommunication would be arbitrary, and as such violative of Article 14 of the Constitution.”

19. Para 8 of Sukhdev Singh’s case (supra) is reproduced as under:

20. It is contended that the law which has been laid down in the case of Dev Dutt (supra) was that the downgraded ACRs must be communicated to the officer concerned. Dev Dutt (supra) in fact does not lay down the procedure to be followed at the time of the consideration by the DPC. It is contended that in this LPA by an order dated 07.03.2019, the predecessor of this court had followed the path laid down by the Supreme Court as also by a Division Bench of this court in the case of Anil Kumar Vs. Union of India & others, reported in 2019 SCC Online SC 86 and Sukhdev Singh (supra). It is submitted that following the law laid down, the Division Bench had directed the appellants to consider the representation of the respondent again and pass a speaking order. Counsel submits that this is clearly reflected in the order dated 07.03.2019. Once the representation has been rejected and the order is not challenged, the effect would be that the ACR in which respondent has been downgraded would be considered in the DPC. He further contends that thus the law as laid down in Dev Dutt (supra) and Sukhdev (supra) has been followed in letter and spirit.

21. Mr. Gandhi, learned counsel for the respondent, on the other hand, has relied upon the decisions rendered in the cases of (i) V.S. Arora (supra), (ii) Abhijit Ghosh Dastidar (supra), (iii) Union of India & others Vs. R.N. Kurmi & others, SLP (CC) no.23481/2012 order dated 14.01.2013, (iv) Union of India & another Vs. Govind Jha & another,

┌───────────────────────────────────────────────────────────────────────────────────────────┐
│       SLP (CC) no.3482/2013 dated 09.04.2013, (v) Rukhsana Shaheen                        │
│       Khan Vs. Union of India & others, Civil Appeal no.32/2013 judgment                  │
│       dated 28.08.2018 and (vi) Prabhu Dayal Khandelwal Vs. Chairman,                     │
│       UPSC & others, reported in AIR 2015 SC 3057.                                        │
│ LPA No.160/2019                                                     Page 11 of 16         │
│                                                                        2019:DHC:6620-DB   │
└───────────────────────────────────────────────────────────────────────────────────────────┘

22. Mr. Gandhi submits that in view of the said judgements the only option available with the appellants would be to ignore the ACR of 2010-11 and rely upon the ACRs for the years 2008-09, 2009-10, 2011-12, 2012-13 and 2013-14 and hold a Review DPC. Strong reliance is placed on the concluding paragraphs 8, 9 and 10 in the case of Abhijit Ghosh Dastidar (supra). Counsel further submits that the case of the respondent would be squarely covered by the proposition so laid down. Paras 8, 9 and 10 of the judgment rendered in the case of Abhijit Ghosh Dastidar (supra), read as under: ―8. Coming to the second aspect, that though the benchmark “very good” is required for being considered for promotion, admittedly the entry of “good” was not communicated to the appellant. The entry of “good” should have been communicated to him as he was having “very good” in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such noncommunication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case [(2008) 8 SCC 725: (2008) 2 SCC (L&S) 771: (2008) 7 Scale 403], SCC p. 738, para 41) relied on by the appellant. Therefore, the entries “good” if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.

9. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28-8-

2000. Therefore, the appellant also be deemed to have been given promotion from 28-8-2000.

10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group A, but his retrospective promotion from 28-8-2000 shall be considered for the benefit of refixation of his pension and other retiral benefits as per rules.”

23. We have heard the learned counsels for the parties and examined their contentions.

24. The main plank of argument of the respondent before the Learned Single Judge was that in the impugned ACR for the year 2010-11 he has been given a low score of ‘65’ and this is the only aberration in his entire ACR profile. Respondent had thus relied on the judgment in the case of Dev Dutt (supra) referred to above for the proposition that uncommunicated ACRs cannot be considered by a DPC. Reliance was placed on the judgment of the Apex Court in the case of Abhijit Ghosh Dastidar (supra) to claim that the impugned ACR being uncommunicated, should have been ignored by the DPC.

25. Having traversed the various judgments, referred to by learned counsel for the respondent, there is hardly any doubt that the said judgments clearly lay down a proposition that if there is a downgrading in any ACR of an employee from its earlier profile or the ACR is below the Benchmark required for promotion of an employee, then the ACR must be communicated, before the said ACR is considered for his promotion. This was on the premise that the ACR would have an adverse effect on the promotion viz the comparative profiles of those being considered along with him. In fact, in the case of Dev Dutt (supra), the Apex Court went a step ahead to hold that all ACRs of the employees must be communicated as a routine, since the object of an ACR is to judge the performance and the employee must know if he is lacking in any aspect and is able to improve his performance. After the ACR is communicated the employee can give a representation to the Competent Authority against the ACR. On receipt of the representation the Competent Authority would consider the ACR along with comments of the reporting officers, taking into account the grievance raised by the employee. None of the said cases deal with the second stage, i.e. after the ACR is communicated and the representation received from the employee, is considered and rejected.

26. In the present case, it is an admitted fact that the respondent had earlier made a representation dated 21.06.2016 as he had learnt about the downgrading in his ACR. This was rejected by the Committee. Significantly, even thereafter this Court vide order dated 07.03.2019 had directed the appellants to consider the representation again and pass a speaking order. The said order is extracted below:-

27. In our view the law as laid down in Dev Dutt (supra) and the subsequent judgments has been followed in letter and spirit since the ACR stands communicated. Respondent has made a representation, which stands rejected, and the rejection orders are unchallenged.

28. The Learned Single Judge has directed the petitioner to grant promotion to the respondent on the sole basis that the ACR was not communicated. In view of what has been observed above this finding cannot stand as even in 2016 the respondent had made a representation and this fact was before the Learned Single Judge. In our view, the Learned Single Judge has thus gone wrong in holding that the ACR was uncommunicated and law laid down in Dev Dutt (supra) has not been followed. The judgment thus deserves to be set aside.

29. Learned counsel for appellants is also right in his contention that in judicial review Courts cannot direct the employer to grant promotion to the employee as this is the prerogative of and in the domain of the employer. The direction to grant promotion is beyond the scope of the jurisdiction of the Court. Even in a case where the ACR is uncommunicated or there is any illegality in the action of an employer in non-grant of promotion, the court can only direct reconsideration. No direction to promote the employee can be passed.

30. We thus find merit in the appeal. Judgment of the Learned Single Judge dated 06.02.2019 is set aside.

31. The appeal is allowed in the aforesaid terms. CM Appl. 10499/2019

32. In view of the order passed in the main appeal, this application stands disposed of.

JYOTI SINGH, J G.S. SISTANI, J. DECEMBER 4th, 2019 yo/