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2018 DIGILAW 760 (JK)

Om Parkash Sharma v. Union of India

2018-10-01

SANJEEV KUMAR

body2018
JUDGMENT : 1. In this petition, the petitioner has inter alia prayed for following relief:- (i) Writ of certiorari to quash impugned order dated 31.08.2002; (ii) Mandamus to fix the seniority of the petitioner below S.No.395 and above S.No.396; (iii) Mandamus to direct the respondents to consider his case for promotion to the post of Superintendent BR Grade-1 with all consequential benefits at par with his immediate junior next to him. 2. The factual matrix, in brief, is that the petitioner was appointed in the respondent organization, i.e., GREF as Superintendent BR Grade II on 16.12.1983. He submitted his resignation from service w.e.f. 28.02.1991 and accordingly he was discharged from the service “at his own request and SOS” w.e.f. 28.02.1991. The petitioner claims to have submitted an application on 30.03.1991 for withdrawal of his resignation in accordance with Rule 26 of the CCS (Pension) Rules, 1972. The request of the petitioner for withdrawal of resignation was not accepted by the respondents, this made the petitioner to file a writ petition before the High Court of Rajasthan at Jodhpur. The writ petition was disposed of by the High Court with a direction to the respondents to decide his representation. Accordingly, representation of the petitioner was considered by the respondents and came to be rejected. Rejection order became subject matter of challenge in SWP No.4263/1992 before the High Court of Rajasthan at Jodhpur. The writ petition was allowed by the High Court on 08.11.1994 with the following observations: “The Government of India is directed to consider the withdrawal of resignation dated 30.03.1991, in accordance with the provisions of Rule 26 and the decision taken by the Government in line thereof after positive application of mind, decide the withdrawal request as per law. This be done within six months.” 3. In compliance to the directions of the High Court of Rajasthan at Jodhpur (supra), the matter was considered by the respondents and vide letter dated 25.02.1995, the petitioner was ordered to be reinstated in the rank of Superintendent BR Grade II w.e.f. 01.03.1991 that is from the effective date of acceptance of his resignation. In compliance to the directions of the High Court of Rajasthan at Jodhpur (supra), the matter was considered by the respondents and vide letter dated 25.02.1995, the petitioner was ordered to be reinstated in the rank of Superintendent BR Grade II w.e.f. 01.03.1991 that is from the effective date of acceptance of his resignation. The period of interruption i.e. from 01.03.1991 till the date of his physically reporting for duty was condoned with the condition that the same would not count as qualifying service for the purpose of service benefits including pay and allowance in terms of Sub Rule 6 of CCS (Pension) Rules, 1972. 4. Since the petitioner was not physically in service of the department during the period w.e.f. 01.03.1991 to 30.04.1995, he did not earn any ACR during the said period and as such, his name was not considered in the DPC held w.e.f. 17-26 July, 1995. The petitioner represented before the higher authorities and, accordingly, the matter was taken up with the Headquarter DGBR to accord sanction for consideration of the case of the petitioner for promotion through a review DPC. Sanction was received from the headquarter and the case of the petitioner was placed before the Board for consideration. For the purpose of according consideration to the petitioner, his earlier ACRs of 5 years, i.e., from 1985 to 1989 were taken into account for consideration. This was done for the reason that the petitioner who was out of action had not earned any ACR for the years from 1990 to 1994. The DPC found that the petitioner had not attained the bench mark fixed for promotion to the post of Superintendent BR Grade I as he had been awarded “average” grading in all the 5 ACRs right from the year 1985 to year 1989. Relying upon the 6.3.1 (iii) of Swamy’s Compilation on seniority and promotion in Central Government service it was noted that general category candidates who earn minimum bench mark of ‘good’ are only entitled to be recommended for promotion to the next higher post. This is how the claim of the petitioner for promotion to the next higher post came to be rejected. This is how the claim of the petitioner for promotion to the next higher post came to be rejected. The petitioner was however, considered in the subsequent DPC held during the year 2001 from 03rd October to 13th October, 2001 and since during the relevant period, the petitioner had earned ACRs and had achieved the bench mark of ‘good’ and therefore, he was recommended for promotion by the Board and approved by the competent authority with inter-se-seniority of 13.10.2001. The petitioner accepted his promotion and joined the post of Superintendent BR Grade I on 16.02.2002. The petitioner has filed the instant petition with the grievance that he was entitled to seniority in the cadre of Superintendent BR Grade I w.e.f. 25.09.1991, i.e., the date of seniority of his immediate junior. The petitioner has assailed the validity of the impugned letter dated 31.08.2002 whereby the petitioner has been informed that in the review DPC held for considering his case, he was not found fit for promotion as he was lacking ACR criteria. The petitioner by virtue of the impugned communication was further intimated that his case was subsequently considered by the DPC on fulfilling the ACR criteria and, accordingly, recommended for promotion to the post of Superintendent BR Grade-I w.e.f. 01.01.2002. 5. In the backdrop of aforesaid facts, the learned counsel for the petitioner submits that the petitioner could not have been denied the promotion on the ground that he was not meeting the ACR criteria for the relevant 5 years, i.e., w.e.f. 1985 to 1989. It is contended that since the APRs recorded as ‘average’ for the aforesaid years took away his right of promotion and therefore, were adverse in its effect and same could not have been relied upon by the respondents to deny promotion without first communicating the same to the petitioner to enable him to make representation. Learned counsel for the petitioner, therefore, submits that the petitioner was entitled to be promoted to the post of Superintendent Grade I with effect from the date immediate junior to him was so promoted. This, in a nutshell, is the submission made by the learned counsel for the petitioner. 6. Per contra, learned counsel for the respondents submitted that the petitioner had voluntarily resigned from the service w.e.f. 28.02.1991 and after he was discharged, he submitted an application for withdrawal of resignation. This, in a nutshell, is the submission made by the learned counsel for the petitioner. 6. Per contra, learned counsel for the respondents submitted that the petitioner had voluntarily resigned from the service w.e.f. 28.02.1991 and after he was discharged, he submitted an application for withdrawal of resignation. Initially, it was not considered but later on in view of the direction issued by the High Court of Rajasthan at Jodhpur while disposing of SWP No.4263/1992 vide its judgment dated 08.11.1994, the petitioner was reinstated in service w.e.f. 01.03.1991, but the period of interruption from 01.03.1991 till the date of physically reporting for duty was not treated as qualifying service for the purpose of service benefits. It is submitted that since the petitioner was not physically serving in the department w.e.f. 01.03.1991 to 30.04.1995 as such, he did not earn any ACR during that period. It is because of this reason the name of the petitioner could not be considered in the DPC held w.e.f. 17th July to 26th July, 1995. It is further submitted that pursuant to the representation made by the petitioner, the matter was taken up with headquarter DGBR for considering the case of the petitioner in the DPC. Upon receipt of the sanction from the headquarter, the case of the petitioner was put before the Board. Accordingly, with a view to accord consideration to the claim of the petitioner, his ACRs of previous year, i.e., from the years 1985 to 1989 were taken into consideration, but the same were ‘average’ and therefore, did not meet the bench mark fixed for making promotion to the next higher grade. His case was, thus, rejected. Learned counsel for the respondents further submitted that later on when he acquired the requisite ACRs and attained the bench mark for promotion, his case was placed before the DPC held during the year 2001 from 3rd October, 2001 to 13th October, 2001. His case was cleared by the DPC and recommended for promotion prospectively. 7. To the argument raised on behalf of the petitioner that the adverse ACRs could not have been relied upon as the same had not been communicated to the petitioner, learned counsel for the respondents submitted that recording of ACRs as ‘average’ is not an adverse ACR, and therefore, there was no legal necessity to communicate the same to the petitioner. 8. 8. Having heard learned counsel for the parties and perused the record, the only question to be determined in this case is as to whether the ACRs of an employee recorded as ‘average’ which dis-entitles him to seek further promotion can be treated as “adverse” and as to whether the same could be relied upon for denying promotion to such employee. The issue raised in this writ petition, in my, humble opinion is no longer res integra. If any entry in the Confidential Report is “average”, “good”, or even “very good” and if it has the effect of denying promotion on the ground that it was not upto the bench mark fixed, then such entry in the ACRs shall be deemed to be an adverse remark and the communication of the same to the employee is mandatory. The Hon’ble Supreme Court in the case of Dev Dutt v. UOI and others reported in AIR 2008 SC 2513 considered the same issue at some length. The observations of the Hon’ble Supreme Court in paras 10 and 11 of the judgment (supra) are noteworthy and are reproduced here as under:- “10. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a ‘good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. 11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.” 9. In the instant case, it is not the case of the respondents that the ACR entries of the years 1985 to 1989, which were taken by the Board as not meeting the bench mark, were ever communicated to the petitioner or that the petitioner was afforded any opportunity to make representation. In that view of the matter, the decision of the board to deny promotion to the petitioner on the basis of aforesaid un-communicated adverse entries is, therefore, not sustainable in law. No doubt, the petitioner has got promotion subsequently in the DPC held in the year 2001 but his claim for seeking it retrospectively with effect from the date his junior was promoted on the basis of DPC held w.e.f. 17 to 26 July, 1995 cannot be held to be unjustified. 10. In view of the settled legal position enunciated in the case of Dev Dutt (supra) and followed in the subsequent judgments, ACRs for the years 1985 to 1989, which have been taken by the respondents as not meeting the bench mark for denying him promotion could not have been relied upon as the same had not been communicated to the petitioner. 11. In view of the aforesaid reasons, this petition is allowed. The respondents are directed to communicate the ACRs of the years from 1985 to 1989 wherein the petitioner has been recorded as “average” within a period of two weeks from the date of receipt of copy of this judgment. 11. In view of the aforesaid reasons, this petition is allowed. The respondents are directed to communicate the ACRs of the years from 1985 to 1989 wherein the petitioner has been recorded as “average” within a period of two weeks from the date of receipt of copy of this judgment. On being communicated, the petitioner shall be at liberty to make representation if he so chooses against the aforesaid entries within a period of two weeks thereafter. The competent authority shall take a decision on his representation within a period four weeks upon receipt of the representation from the petitioner. If upon consideration of the representation of the petitioner, the relevant entries of the petitioner are upgraded, the petitioner shall be considered for promotion retrospectively by the Departmental Promotion Committee, i.e., with effect from the date juniors to the petitioner were promoted pursuant to the recommendation of the DPC held w.e.f. 17 to 26 July, 1995 within a period of three months thereafter, provided the DPC finds the petitioner otherwise fit for promotion. He shall be given all the benefits of such promotion including the arrears of pay etc. 12. Disposed of as above along with connected MPs.