*IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 44/2006 RUKHSANA SHAHEEN KHAN Petitioner Through Mr.Arun Bhardwaj, Adv. versus UOI & ORS. Respondent Through Mr.Suresh Kait with Mr. Yogesh Kumar, Advocates CORAM: HON'BLE JUSTICE DR.MUKUNDAKAM SHARMA HON'BLE MR. JUSTICE O.P. DWIVEDI % ORDER 06.01.2006 CM 64/2006 Exemption allowedsubjecttojust exceptions. WP(C) 44/2006 This writ petitionis directedagainstthe judgmentand order dated 18th March, 2005 passed by the Central Administrative Tribunal m OA No.2702/2003 whereby the original application filed by the petitionerwas dismissedholdingthat the petitionerdid not satisfyand fulfillthe criteriaand bench mark for promotionto thepostofPrincipalControllerofDefenceAccounts. The Post of Principal Controllerof Defence Accounts is (WP(G)44/2006) p 1 Page 1 of? Digitally Signed By:AMULYA Signing Date:07.10.2023 10:49 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified •s equivalent to Additional Secretary to Government of India. Promotion to the said post is the subject matter of the writ petition. The case of the petitioner was considered for promotion to the said post with other candidates. The ACRs of the eligible candidates were also considered by the DPC while considering the matter of promotion. It is stated by the petitioner through his counsel before us that the petitioner was gradedin his confidentialreports as follows: 1994-1995 1995-1996 1996-1997 1998-1999 1999-2000 2000-2001 Very Good Average No ACR recorded, treated as 'good' Good Very Good Good The contentionthat is raised by the petitionerbefore us is thattherecordswhichwere consideredby the UnionPublicService Commissionfor consideringthe case of the petitionerfor such promotionto the aforesaidpost were the confidentialreportsofthe petitionerfirom the year 1995 to 2001. The petitionerstatesthat he has been graded Very good' for the year 1994-95and that he was (WP(C)44/2006) Page 2 of 7 •r^ erroneously graded as 'average' for the year 1995-96 as adverse entries were expunged and therefore he should have been treated as 'very good'. It is also submitted that if the aforesaid grading for 1995-96 is treated as 'very good', the grading for 1996-97 shall also have to be treated as 'very good' in which case the petitioner would have only two 'goods' during the period from 1994-95 and 2000-2001 and in that eyent the petitioner would have satisfied and fulfilledthe criteriafor promotionto the aforesaidpost. We have considered the aforesaid submissions of the counsel appearing for the petitioner. We have also heard the learned counsel appearingfor the respondents. We have perusedrecords placed before us including the order passed by the Central AdministrativeTribunalwhich is impugnedin the presentpetition. A perusal of the impugned order would indicate that the pleaswhichwereraisedand urgedbeforethe Tribunalwerethatthe DPC reliedupon the un-communicatedgradingin the ACR which should and could not have been so considered without communicatingthe said grading to the petitioneras they were belowthe prescribedbenchmark. The Tribunal considered the ACR folder of the petitioner (WP(C)44/2006) Page 3 of 7 and on such considerationfound that the the ACRs which were consideredby the UPSCwerefromthe year 1996till2001 and that for the period between 1-4-1996 to 30-9-1996 the petitioner remainedon leave and had not workedunder any reportingofficer for three months and therefore no ACR was written for the aforesaidperiod. It is also establishedfrom the records that the ACRs ofthe petitionerfrom 1-4-1996to 31-3-1997was good and for the years 1998-99,1999-2000and 2000-2001the gradingwas 'good','verygood' and 'good'respectively. The DPC was requiredto assessthe suitabilityof the officer for promotionon the basis of his service record in terms of the guidelines issued in that regard. The aforesaid assessment of suitability on the basis of service record is to be made with particular regard to the ACRs for five preceding years. It is providedthat where one or more ofthe confidentialreportshad not been written for any reason during the relevant period, the DPC would consider the confidential reports for the years preceding the period in question. It is also provided that in respect of the posts which are in the level of Rs.3700-5000 and above the bench mark grade should be 'very good'. Therefore for the post of Principal (WP(C) 44/2006) Page 4 of 7 Controller of Defence Accounts which is equivalent to Additional Secretaryto Governmentof India the bench mark providedis Very good'. The contention that was raised before the Tribunal was that the petitionerhas been downgradedin his confidentialreportsas he was treated 'very good' in 1994-95 whereas he was treated as 'average' in 1995-96 and again was treated 'very good' in 1999- 2000 and was graded 'good' in 2000-2001. It was also the case of the petitioner before the Tribunal that since he was graded below the bench mark 'very good' therefore downgraded report should have been communicated to the petitioner and since that was not conmiunicated, the said un-communicated grading in the ACR could not and shouldnot have been consideredby the respondents. The aforesaid contention raised by the petitioner before the Tribunal did not find favour as the Tribunal held that even if grading was given below the bench mark the same was not requiredto be communicated.We find no infirmityin the aforesaid conclusionarrivedat by the Tribunal. Even if the gradingis given to any ofthe employeeswhich is below the bench mark for such promotion,no such gradingis requiredto be communicatedto the (WP(C)44/2006) Page 5 of 7 • ^ concerned person as there is no specific rule which creates an obligation on the respondent to communicate such remarks or gradingto the concernedpersonso long the same is not an adverse entry. The contention that the petitioner was downgradedfrom 'very good' to 'good' and such downgrading remarks having not been communicated should not have been considered by the DPC is also not tenable and has no merit in view of the recent judgment of the Supreme Court in Union of India & Another v. Major Bahadur Singh reported in 2005 (9) Scale 459. In the said decision the Supreme Court has held that the case of UP Jal Nigam has no universal application and that the said judgment itself shows that it intended to be meant only for the employees of the UP Jal Nigam. It was further held that the materials on record clearly reveal that the procedure adopted for recording ACRs has been elaboratelyprovidedfor and when rules do not specificallycast an obligation for communicatingsuch remark which is treated as downgrading,no such remark is required to be communicatedto the concernedemployee. It was also held by the SupremeCourt that downgradingin the ACR unless it is adverseentry or unlessit is specificallyrequiredto be communicatedunder the Rules need (WP(C)44/2006) Page 6 of 7 •V not be so communicated to the petitioner. In our considered opinion the ratio of the aforesaid decision of the Supreme Court is squarely applicable to the facts and circumstances of the present case. The petitioner, was downgraded in his ACR but under the rules governing the case of the petitioner there was no requirement of communication of the grading even when the same amounts to downgrading. The petitioner apparently did not satisfy the requirements and fulfill the bench mark which is required for promotion to the aforesaid post where the bench mark required is Very good'. The Tribunalin the light of the aforesaidpositionhas returned a finding that there was no merit in the original application. We find no infirmity in the aforesaid decision. The petition has no meritand is dismissedaccordingly. JANUARY 06,2006 "v" (WP(C)44/2006) DR.MUKUNDAKAMSHARMA,J VEDI, J Page 7 of 7