SCA/11594/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11594 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH Sd/- HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= = UNION OF INDIA THRO' THE SECRETARY & 1 - Petitioner(s) Versus M.C.PANDIT ADDL. COMMI. OF I.T. - Respondent ========================================= = Appearance : MRS MAUNA M R BHATT for Petitioner(s) : 1 - 2. MR SHALIN N MEHTA for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 16/06/2008 SCA/11594/2004 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) 1. What is challenged in this petition under Articles 226 and 227 of the Constitution is the order dated 29.12.2003 of Central Administrative Tribunal, Ahmedabad Bench allowing the respondent's Original Application No.115 of 2003. The respondent herein filed the above-numbered application before the Tribunal when his juniors came to be promoted and his representation dated 29.11.2002 was not considered. The respondent was a direct recruit of 1982 batch and he was promoted to Junior Administrative Grade in August, 1982 and to the Non-functional Selection Grade in June, 2000. The respondent was eligible for promotion to Senior Administrative Grade after putting in eight years of service. Departmental Promotion Committee (DPC) met in February, 2001 for considering the respondent's case along with the case of other eligible officers. When promotion orders of his juniors were issued in January 2002, the respondent found that his name was not included in such orders. The respondent, therefore, submitted his representation to which the respondent did not receive any reply and hence the respondent moved the Central Administrative Tribunal. The Tribunal examined the service record of the respondent and gave the following findings: "10. These ACRs are as follows: Reporting Reviewing Fit for Year Officer Officer promotion 2001-02 1.4.01 to 15.10.01 N.A. N.A. 16.10.01 to 31.3.02 Very good Very good N.C. 2000-01 N.A. N.A. SCA/11594/2004 3/7 JUDGMENT 1999-2000 Good Good N.C. 1998-1999 Oct.98 to March 99 Good Good N.C. April to October N.A. N.A. N.C. 1997-98 Very good Very good N.C. N.A. - Not applicable N.C. - No comments. 11. It is the case of the respondents that the applicant needed a t lease two very good and no adverse for promotion to selection grade. He was also adjudged unfit for the year 2000-01 and 2001-02. Whether the overall assessment of very good is based on three very good, two goods or four very goods and one good in last five year is not indicated? The ACR of earlier years 95-96 & 96- 97 which were relevant has not been produced. At least one of them has to be very good to allow him to obtain promotion to selection grade. It can be safely inferred from the available information that at least for 98-99, 99-2000 he has below bench mark grading and there is a fall from very good to good between 97-98 and 98-99. In case 95-96 is very good and 96-97 is good, then there is a fall during these years also." 2. After considering rival submissions, the Tribunal allowed the application in terms of the following observations and directions: "27. We have indicated in para 11 above the position regarding fall in ACRs during the year 95-96 to 99-2000. It is also not clear as to whether eights years of ACR were considered in accordance with DOPT Circular as no material in that regard was placed before us. It is clear that fall in ACR as compared to previous year or down gradation below the bench mark by reviewing/accepting officer has to be communicated. 28. It is a settled principle of law that DPC cannot act on ACRs which have not been communicated. Since it clearly appears that downgrading of the applicant was not communicated to him, SCA/11594/2004 4/7 JUDGMENT DPC could not have taken into consideration those ACRs and could not have assessed as not coming up to the benchmark. 29. Under the circumstances, we are of the view that the findings of the DPC and its subsequent acceptance by the respondents have to be set aside. The respondents shall within a fortnight of the receipt of the order communicate such ACRs to the applicant. It will be open to the applicant, within a fortnight of the receipt of the same to make a representation and if such a representation is made, the same shall be decided by the competent authority within one month thereafter. If as a result of this exercise the overall grading of the officer for those years changes necessitating reconsideration by the DPC, the meeting of the DPC shall be called to reconsider his case. The entire exercise shall be completed within six months from the date of receipt of a copy of this order. With these directions, the OA stands disposed of. No costs." 3. The Union of India is aggrieved by the above judgment. While admitting the petition, this Court stayed implementation of the judgment under challenge in March, 2008 and the respondent moved a civil application for fixing the date of hearing on the ground that the controversy raised in this petition is concluded against the Union of India by reported judgment of this court in Union of India, through Secretary v. A.P.Srivastava [2008 (1) GLH 133]. 4. The petition was accordingly fixed for hearing. 5. At the hearing, Ms.Mauna Bhatt, learned Standing Counsel for the Income Tax Department has assailed the judgment of the Tribunal mainly on the following grounds: (1) "Good" grading cannot be considered to be 'adverse' and the department was justified in not communicating the grading for the relevant years in October 1998 to March 1999 and 1999- SCA/11594/2004 5/7 JUDGMENT 2000. It is submitted that it is only when reporting officer gives "very good" grading to an officer and reviewing officer gives only "good" grading, it can be said that there is downgrading and only in such circumstances, such downgrading should be communicated. (2) It is also submitted, in the alternative, that the department had issued chargesheet to the respondent on 20.11.2002 and, looking to the serious nature of imputations against the respondent in the said chargesheet, no direction should have been issued in favour of the original applicant, i.e. respondent herein, and against the department. 6. On the other hand, Mr.Shalin Mehta, learned counsel for the respondent (original applicant before the Tribunal) has supported the judgment of the Tribunal and submitted that the Tribunal has taken the same view which was taken by the Tribunal in the case of A.P.Srivastava, which view is now confirmed by reported judgment of this Court in Unioin of India v. A.P.Srivastava [2008 (1) GLH 133]. 7. As regards the alternative submission, Mr.Mehta has seriously contested the same and submitted that, when the respondent's case was considered by the DPC along with the case of his juniors in February 2001, no such chargesheet was issued. It is vehemently submitted that, in any view of the matter, the departmental enquiry instituted as far back as in November 2002 is still pending and no orders are passed against the respondent in the said enquiry. 8. Having heard learned counsel for the parties, we find that the principles applicable in such cases are already considered by this Court in the reported judgment in case of Union of India v. A.P.Srivastava [2008 (1) GLH 133]. After considering the SCA/11594/2004 6/7 JUDGMENT decisions of the Apex Court in Union of India v. S.K.Goel [AIR 2007 SC 1199], Union of India v. Major Bahadur Ssingh [2006 (1) SCC 368] and U.P.Jal Nigam v Prabhat Chandra Jain [1996 (2) SCC 363], this Court held that, when prejudice is caused to an officer by non-communication of downgrading for the relevant years, the authorities have to be directed to communicate "good" grading where "very good" grading is prescribed as the bench mark for the years under consideration. In the facts of that case, the officer was given "very good" grading in 1999-2000 and "good" grading in 2000-2001 and 2001-2002 and this Court held that prejudice was caused to the officer by non-communication of downgrading for the years 2001 and 2002 because "very good" grading was prescribed as the bench mark for the stipulated number of years under consideration. Since this Court had considered all the three decisions of the Apex Court having a bearing on the question under consideration, we have not allowed the learned counsel for the department to re-agitate the question all over again. Suffice it to state that where "very good" grading for at least two, out of five, years under consideration has been prescribed as the bench mark and the respondent herein was given only one "very good" grading and "good" grading was given for the subsequent years, the respondent did suffer prejudice on account of non-communication of downgrading for the subsequent years. 9. As regards the alternative submission made by learned Standing Counsel on the basis of issuance of chargesheet in a departmental enquiry in November 2002, it appears that the departmental enquiry is still pending and no decision is as yet taken in the said proceeding though, according to the instructions received by learned Standing Counsel, enquiry report of the enquiry officer has already been received by the department. We do not, however, propose to examine this aspect any further because all that we propose to do is to confirm the judgment of the Tribunal. Petitioner SCA/11594/2004 7/7 JUDGMENT No.2 will communicate the downgrading as explained in this judgment and the judgment in the case of Union of India v. A.P.Srivastava within one month from today and the respondent herein will submit his representation to such communication within a fortnight from the date of receipt of the remarks. The competent authority shall, thereafter, decide such representation within one month. If, as a result of this exercise, the overall grading of the officer for the relevant years changes necessitating reconsideration by the DPC, meeting of the DPC shall be called to reconsider the officer's case in accordance with law. The entire exercise shall be completed within six months from the date of the receipt of a copy of this judgment. Petition is accordingly dismissed. Rule is discharged. Interim stay granted earlier shall stand vacated forthwith. Sd/- ( M.S.SHAH, J.) Sd/- ( D.H.WAGHELA, J.) (KMG Thilake)