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2022 DIGILAW 1264 (GAU)

Pankaj Dixit v. Union of India

2022-11-17

NELSON SAILO

body2022
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. T.T. Tara, learned counsel for the petitioner and also Mr. M. Kato, learned DSGI appearing for the respondent Nos. 1, 2 and 3. None appears for respondent No. 4 despite notice. 2. The grievance of the petitioner in a nutshell is that he has been given the grading of “Average” in his ACR for the period from 14.05.2005 to 09.01.2006 and from 01.04.2006 to 23.03.2007. He was not communicated with the same prior to the holding of a Departmental Promotion Committee (DPC) for considering the promotion from the post of Assistant Executive Engineer (Civil) to the post of Executive Engineer (Civil) under the Border Roads Organization (BRO). 3. It is the case of the petitioner that as a result, the private respondent No. 4 who is much junior to him was promoted and therefore, grave injustice has been caused to him. 4. Mr. T.T. Tara, learned counsel submits that the petitioner was clearly eligible to be considered for promotion when the DPC met on 29.06.2010 but his name was dropped on account of there being two gradings of “Average” for the two periods referred. Although, such entry was said to have been communicated to the petitioner vide Communication dated 18.02.2010 but the same was only received by the petitioner on 08.07.2010. The petitioner, nevertheless, on receiving the said communication submitted his representation for correction and up-gradation of his ACR to the respondent No. 3 through proper channel on 20.07.2010 and thereafter, again on 30.02.2011. The petitioner later also submitted several representations but the same were not considered by the respondent authorities concerned. The petitioner was consequently promoted to the post of Executive Engineer (Civil) on 20.06.2015 and by which time, those junior to him had already been promoted. He submits that the action of the respondent authorities in not considering the representation of the petitioner and at the same time, non-communication of the gradings given to him prior to the DPC held on 29.06.2010 is most arbitrary and illegal and therefore, the respondents should be directed to upgrade the gradings of the petitioner and give him all the consequential benefits. In support of his submissions, the learned counsel has relied upon the following authorities: (1) Gurdial Singh Fiji vs. State of Punjab and Others, (1979) 2 SCC 368 (2) Dev Dutt vs. Union of India and Others, (2008) 8 SCC 725 (3) Baidyanath Maharashtra vs. State of Orissa and Another, (1989) 4 SCC 664 (4) Bal Kishan vs. Delhi Administration and Another, 1989 Supp. (2) SCC 351 (5) Sant Kumar Singh vs. Union of India and Others, W.P. (C) No. 355/2012, dated 5.8.2014 5. Mr. M Kato, learned DSGI, on the other hand, submits that the petitioner has belatedly filed their writ petition and on this ground, the writ petition should be rejected. He further submits that the petitioner did not get the Bench mark of “Good” and therefore, he could not be considered for promotion to the post of Executive Engineer (Civil) although he was in the zone of consideration at the relevant time. He, further, submits that the representation of the petitioner dated 20.07.2010 was indeed considered by the authority concerned and the same was rejected vide Memorandum dated 25.05.2011. The learned DSGI by referring to Communication dated 10.09.2013 annexed to the counter affidavit filed by the respondent Nos. 1, 2 and 3 on 20.11.2009 submits that as per the guidelines issued by the Govt. of India, Ministry of Personnel, Public Grievance and Pensions, Department of Personnel and Training, there is no provision for reconsideration of up-gradation of below Bench mark grading given in the Annual Performance Appraisal Reports (APARs) by the competent authority when the competent authority had already taken a decision by rejecting the request of the Government servant. Therefore, since the representation of the petitioner had already been rejected by the competent authority, the subsequent representations submitted by the petitioner cannot be entertained. He also submits that the petitioner filed an appeal before the Secretary, Border Roads Development Board, New Delhi but in view of the specific guidelines issued by the Department of Personnel and Training, there is no scope for reopening the issue on up-gradation of below Bench mark given to the petitioner. He submits that under the facts and circumstances, the writ petition having no merit the same should be dismissed. 6. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 7. He submits that under the facts and circumstances, the writ petition having no merit the same should be dismissed. 6. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 7. As may be seen, the grievance of the petitioner is that he has been graded as “Average” for the period w.e.f. (i) 04.05.2002 to 09.01.2006 and (2) 01.04.2006 to 23.03.2007. Although the petitioner was communicated about the said grading vide Communication dated 18.06.2010 but the same was admittedly received by him only on 08.07.2010. By that time, the DPC to consider eligible candidates for promotion to the post of Executive Engineer (Civil) had already sat on 29.06.2010 and that those junior to the petitioner including the respondent No. 4 had been promoted to the next higher posts. Therefore, even if the petitioner was communicated the gradings given in his ACR for the aforesaid period but since the same was belatedly received by him much after the DPC met, the very purpose of communicating him the ACR, so that the same can be rectified has been defeated. 8. The Apex Court in Baidyanath Maharashtra (supra) in the given facts of that case held that if the adverse remarks awarded to a Government servant are communicated to him after several years, the object of communicating entries is defeated. Similarly, in Dev Dutt (supra), the Apex Court held that 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 non-communication of such entry may adversely effected 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 up-gradation. Therefore, non-communication of an entry is arbitrary. Therefore, non-communication of an entry is arbitrary. Again, the Apex Court in Gurdial Singh Fiji (supra) held that the principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned, so that he has an opportunity to improve his work and conduct or to explain circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. 9. Coming back to the present case as already noticed herein above, the petitioner though communicated with the entries in his ACR, he had no opportunity to make a representation prior to the sitting of the DPC on 29.06.2010 and therefore, the principles of natural justice in the considered view of this Court has been denied to the petitioner. Secondly, it is the contention of the official respondents that the representation submitted by the petitioner on 20.07.2010 was considered and thus rejected by the competent authority vide Memorandum dated 25.05.2011. The contents of the Memorandum dated 25.05.2011 may be abstracted below for ready perusal: “MEMORANDUM Attention of GO-30621 AEE (Civ) Pankaj Dixit of 468 RMPL/89 RCC (GREF) is hereby invited to his representation dated 20 Jul 2010 against below bench marks grading in his ACRs for the period from 14 May 2005 to 09 Jan 2006 and 01 Apr 2006 to 23 Jul 2007. Shri Pankaj Dixit, AEE (Civ) is hereby informed that issue raised by him in his representation have been given due consideration by the Competent Authority, who has included/directed that the representation is devoid of any merits and the same is rejected. The receipt of this memorandum shall be acknowledged. (Pritam Singh) SPS AD/E1D For DGBR.” 10. From a perusal of the above abstract, it may be seen that there is no indication that the representation of the petitioner which otherwise was filed in great detail has not been meticulously examined and considered by the authority concerned. In other words, the Memorandum basically is a communication rejecting the representation of the petitioner. Non-consideration of an employee for promotion to a higher post on account of the gradings given in the ACR is crucial. In other words, the Memorandum basically is a communication rejecting the representation of the petitioner. Non-consideration of an employee for promotion to a higher post on account of the gradings given in the ACR is crucial. As already noticed herein above, the Apex Court has held that consideration of a representation in this regard is not an empty formality. It affects the right of the employee to advance in his career and therefore, it is incumbent upon the authority concerned to meticulously examine consider and pass a reason order against any representation filed for upgradation of ACR. 11. Therefore, upon due consideration of the case in its entirety, I am of the considered view that the respondent authority concerned should re-visit the grievances projected by the petitioner through his representation dated 20.07.2010 and 30.03.2011 in particular. Such examination should be initiated and completed as expeditiously as possible, preferably within the outer limit of 6 weeks from the date of receipt of the certified copy of this order. It is needless to mention herein that in the event of such examination, the competent authority is of the view that the grading of the ACR of the petitioner for the period under consideration requires to be up-graded, the petitioner will be entitled to all the consequential benefits flowing out of such decision. The decision to be taken should invariably be communicated to the petitioner, without delay. 12. The petition is accordingly stands disposed of.