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WRIT PETITION (CIVIL) No. 429/2016
Date of Decision: 23rd May, 2017 DEPUTY COMMANDANT KULDEEP J CHOUDRY..... Petitioner
Through Ms. Jyoti Singh, Sr. Advocate with Ms. Tinu Bajwa & Mr. Himanshu Gautam, Advocates.
Through Dr. Ashwani Bhardwaj, Advocate.
HON'BLE MR. JUSTICE NAVIN CHAWLA SANJIV KHANNA, J. (ORAL):
The petitioner was appointed as Assistant Commandant in the
Border Security Force on 6th January, 2003.
JUDGMENT
2. The petitioner alongwith his batchmates and others was considered for promotion for Deputy Commandant in the Departmental Promotion Committee (DPC) meeting held on 23rd September, 2009.
3. The petitioner was not promoted because of below the benchmark grading in his Annual Confidential Report (ACR) for the year 2007-08 (1st April, 2007 to 31st March, 2008).
4. The petitioner protested and made representation to the respondents relying upon decision of the Supreme Court in Dev Dutt versus Union of India and Others, (2008) 8 SCC 725. 2017:DHC:2799-DB
5. The respondents vide letter/order dated 22nd April, 2015 rejected the petitioner‟s representation, inter alia, relying upon Department of Personnel and Training‟s OMs dated 19th April, 2010 and 13th April, 2010. This order also refers to earlier replies given by the respondents. The petitioner, it was observed, was not entitled to communication of below the benchmark grading in the ACR for the year 2007-08 as DOPT‟s OM dated 13th April, 2010 applies prospectively to DPCs, which was held on or after the said date. The DPC in question in which the petitioner and his batchmates were considered was held on 23rd September, 2009.
6. Aggrieved, the petitioner has filed the present writ petition making several prayers, but we are inclined to dispose of the writ petition accepting the prayer clause (iv) by directing the respondents to communicate below the benchmark/adverse grading recorded in the petitioner‟s ACR for the period 2007-08 and thereafter follow the procedure as has been prescribed and laid down by the Supreme Court in Dev Dutt (supra) and Sukhdev Singh versus Union of India and Others, AIR 2013 SC 2741.
7. Decision in Dev Dutt (supra), which was pronounced on 12th May, 2008, the Supreme Court in affirmative terms had held as under:-
14. In most services there is a gradation of entries, which is usually as follows:
(i) Outstanding (ii) Very Good (iii) Good (iv) Average (v) Fair (vi) Poor
A person getting any of the entries at Items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the authority concerned.
15. If we hold that only “poor” entry is to be communicated, the consequences may be that persons getting “fair”, “average”, “good” or “very good” entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).
16. In our opinion if the office memorandum dated 10/11-9-1987, is interpreted to mean that only adverse entries (i.e. “poor” entry) need to be communicated and not “fair”, “average” or “good” entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or to get some other benefit. For example, if the benchmark is that an incumbent must have “very good” entries in the last five years, then if he has “very good” (or even “outstanding”) entries for four years, a “good” entry for only one year may yet make him ineligible for promotion. This “good” entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or to for some other extraneous consideration.
17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because noncommunication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, noncommunication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248: AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution.
18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.
26. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the “good” entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case.”
8. Thereafter, the Supreme Court in Dev Dutt (supra) also referred to the procedure, which is to be followed when the public servant is communicated below the benchmark grading, in the following words:-
9. In Sukhdev Singh (supra), a three Judge Bench of the Supreme Court examined the whole issue afresh as the ratio in Dev Dutt (supra) was referred to a Larger Bench. The Supreme Court affirmed the view taken in Dev Dutt (supra) observing that they were in complete agreement. Reference was also made to another three Judge Bench decision of the Supreme Court in Abhijit Ghosh Dastidar versus Union of India and Others, (2009) 16 SCC 146. In Abhijit Ghosh Dastidar (supra), it has been observed as under:-
10. In Sukhdev Singh (supra), the Supreme Court held as under:-
11. The decision in the case of Dev Dutt (supra) was pronounced on 12th May, 2008. Law laid down by the Supreme Court is binding on the authorities and the High Courts. In the present case, the DPC was held on 23rd September, 2009 and, therefore, should have followed the said law and ratio in Dev Dutt (supra) before relying upon the adverse ACR for the year 2007-08.
12. Accordingly, we direct the respondents to communicate below the benchmark adverse ACR for the year 2007-08 to the petitioner within a period of six weeks from the date a copy of this order is received. The petitioner would be at liberty to make a representation within four weeks thereafter. The respondents would consider the representation and communicate their decision to the petitioner within four weeks after the representation is made. In case, the ACR of the petitioner is upgraded, a review DPC would be held as per law to consider the case of the petitioner for promotion. In case ACR is not upgraded, it will be open to the petitioner to question and challenge the said decision in accordance with law.
13. With the aforesaid observations, the writ petition is disposed of, without any order as to costs.
SANJIV KHANNA, J. NAVIN CHAWLA, J. MAY 23, 2017 VKR