W.P.(C) Nos.5859/10 & 6426/10 Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 4th October, 2010 Judgment Delivered On:8th October, 2010 + WP(C) 5859/2010 UNION OF INDIA & ORS. …Petitioners Through : Mr.Parag Tripathi, ASG with Mr.V.S.R.Krishna and Mr.Shadan Farasat, Advocates Versus RAJEEV BHARGAVA …Respondent Through: Mr.J.L.Gupta, Sr.Advocate with Mr.Nidesh Gupta, Sr.Advocate and Mr.Tarun Gupta, Advocate WP(C) 6426/2010 RAJEEV BHARGAVA …Respondent Through: Mr.J.L.Gupta, Sr.Advocate with Mr.Nidesh Gupta, Sr.Advocate and Mr.Tarun Gupta, Advocate Versus UNION OF INDIA & ORS. …Petitioners Through : Mr.Parag Tripathi, ASG with Mr.V.S.R.Krishna and Mr.Shadan Farasat, Advocates for R-1 to R-3 None for R-4 to R-13 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Having an outstanding academic career; topping the Engineering Examination conducted by the Roorkee W.P.(C) Nos.5859/10 & 6426/10 Page 2 of 39 Engineering College (now IIT Roorkee) and having stood first at the All India Engineering Service Examination conducted by UPSC, Rajeev Bhargava joined Indian Railway Service of Civil Engineering and after completion of training joined duties and in the very first year of his regular service, as per the first ACR written and agreed to by the Accepting Authority, earned the grading „Very Good‟ with a further note by the Reporting Authority: „A young energetic and sincere engineer who has acquainted himself very well in the management of his office and field work. He will prove an asset to the department.’ 2. Whether the prophecy of Shri P.N.Mehta the then Senior Divisional Engineer, Northern Railway and the author of the note aforenoted has come true? This is the further journey we are required to charter; not as voyagers but as captains with the mandate to re-charter the journey. We say so for the reason we have to reflect back in the past and peep into the personal file of Rajeev Bhargava. 3. The prophecy of Shri P.N.Mehta stood the test of time and came true till the assessment year 2002-03. Commencing the journey in the year 1979-80 and till the year 2002-03, the ACR grading of Rajeev Bhargava stands tabulated as under:- Sl. No. Assessment year Grading 1 1979-80 Very Good 2 1980-81 Very Good 3 1981-82 Very Good 4 1982-83 Very Good 5 1983-84 Outstanding 6 1984-85 Very Good 7 1985-86 Outstanding 8 1986-87 Outstanding 9 1987-88 Outstanding 10 1988-89 Outstanding 11 1989-90 Outstanding 12 1990-91 Outstanding 13 1991-92 Outstanding W.P.(C) Nos.5859/10 & 6426/10 Page 3 of 39 14 1992-93 Outstanding 15 1993-94 Outstanding 16 1994-95 Outstanding 17 1995-96 Outstanding 18 1996-97 Outstanding 19 1997-98 Outstanding 20 1998-99 Outstanding 21 1999-2000 Outstanding 22 2000-2001 Very Good 23 2001-2002 Outstanding 24 2002-2003 Outstanding He earned promotions at the very first instance when he became eligible and never had a hic-up. 4. The turbulence came in the year 2003-04. Record shows that for the said year the ACR was written in three parts on account of the fact that Rajeev Bhargava had to work under three different officers who initiated the recording of the ACR for the period they worked as the immediate superior officer of Rajeev Bhargava. The three periods are: 01.04.2003 - 07.08.2003 for which Rajeev Bhargava was graded „Outstanding‟. Part II comprise the period 08.08.03 - 05.11.03 when he was graded „Good‟. Part III is the remainder period from 06.11.03 - 31.03.04 for which when he was graded „Very Good‟, but with a negative comment by the Reviewing Authority who wrote that though a person with a very high technical knowledge, Rajeev Bhargava was a stubborn and an obstinate person having quarrelsome nature; and was unfit as a team leader. Further it was written that to further his ambition Rajeev Bhargava would hob-knob with politicians. To put it in a tabular form, the ACR grading for the year 2003-04 would be as under:- W.P.(C) Nos.5859/10 & 6426/10 Page 4 of 39 Sl. No. Period Grading 1 01.04.03 - 07.08.03 Outstanding 2 08.08.03 - 05.11.03 Good 3 06.11.03 - 31.03.04 Very Good 5. ACR for the next year i.e. the year 2004-05 is in two parts. Part I being the period 01.04.04 – 18.10.04 for which Rajeev Bhargava is graded „Very Good‟. Part II is the balance period from 27.10.04 till 31.03.05 when Rajeev Bhargava is graded „Outstanding‟. To put it in a tabular form, for the year 2004-05 the ACR gradings would be as under:- Sl. No. Period Grading 1 01.04.04 – 18.10.04 Very Good 2 27.10.04 – 31.03.05 Outstanding 6. ACR for the next year i.e. the year 2005-06 is in two parts and for both, Rajeev Bhargava is graded „Outstanding‟. To put it in a tabular form the ACR grading would be as under:- Sl. No. Period Grading 1 01.04.05 – 31.03.06 Outstanding 7. ACR for the next year i.e. the year 2006-07 is again in two parts. For the period 01.04.06 to 31.07.06 he is graded „Outstanding‟. For the remainder part the Reporting Authority graded him „Very Good‟ which was upgraded by the Reviewing Authority to „Outstanding‟. The Chairman Railway Board reduced the grading for the second period to „Very Good‟, which was accepted by the Accepting Authority i.e. the Hon‟ble W.P.(C) Nos.5859/10 & 6426/10 Page 5 of 39 Railway Minister who wrote: „I agree‟. It may be noted here that the Chairman Railway Board, while justifying the reduction in the grading as graded by the Reviewing Authority, stated that he agreed with the observations of the Reporting Authority who had graded Rajeev Bhargava „Very Good‟. Being relevant, we need to spend a little time here and note that while justifying the grading „Very Good‟, the Reporting Authority has encircled, within boxes with serial No.1 to 6 marked against 6 boxes under the column General Assessment, where we find, that for the guidance of the Reporting Authority, the attributes on which the rating has to be justified is pre-printed. We note the same with the clarification that what has been encircled within the boxes has been highlighted by us in bold with serial number prefixed while reproducing the ACR proforma pertaining to General Assessment. It reads as under:- “General Assessment-This should contain in narrative form an overall assessment of the officer‟s personality, his/her qualities and shortcomings and in particular touch on the following points viz., quality of mind, (1) Knowledge, conceptual ability, communication skill (written and oral) analytical and planning ability, leadership qualities and initiative, attention to detail (2) industry and conscientiousness, judgment, (3)speed of disposal, willingness to accept responsibility and take decision, courage, ability to withstand mental/physical pressure relations with subordinates and colleagues, (5)public relations, interest in training and (6)development of subordinates and in the development of Scheduled Castes/Scheduled Tribes and weaker section of the society and attitude towards Raj Bhasha.” Thereafter in his own hand the Reporting Officer has written: The officer is up to the mark in the attributes above (boxed and numbered) whereas they are substantial ones. But lack of detail, time/timing has affected targets, their timings. At W.P.(C) Nos.5859/10 & 6426/10 Page 6 of 39 times, he gives a feeling of hiding facts at his end. Relationship with other are also not quite sound and also the style of management is not healthy’. 8. To put it in tabular form, for the year 2006-07 the ACR grading would be as under:- Sl. No. Period Grading 1 01.04.06 – 31.07.06 Outstanding 2 31.07.06 – 31.03.07 Very Good 9. ACR for the next year i.e. the year 2007-08 is again in two parts. Part I is for the period 01.04.07 – 24.08.07 when Rajeev Bhargava has been graded „Good‟ and part II is the period 19.09.07 – 31.03.08 when Rajeev Bhargava has been graded „Outstanding‟. To put it in a tabular form, for the year 2007-08 the ACR grading would be as under:- Sl. No. Period Grading 1 01.04.07 – 24.08.07 Good 2 19.09.07 – 31.03.08 Outstanding 10. For the next year i.e. the year 2008-09 Rajeev Bhargava was graded „Outstanding‟. 11. Having become eligible to be considered for the top cadre posts under the Indian Railways i.e. the post of General Manager and equivalent, candidature of Rajeev Bhargava had to be considered along with the other eligible officers for empanelment to fill up vacancies of General Managers and equivalent for the year 1.4.2009-31.3.2010 and for which a Selection Committee was constituted to give W.P.(C) Nos.5859/10 & 6426/10 Page 7 of 39 recommendations for consideration by the ACC i.e. Appointment Committee of Cabinet. When notified on 11.8.2009, name of 28 candidates empanelled and approved by the Appointment Committee of Cabinet excluded Rajeev Bhargava who filed OA No.2201/2009 in which he urged: (i) as per notification dated 16.7.1986 the scheme for making appointments to the post of General Manager and equivalent in the Indian Railway was notified, vide clause 6 whereof the Selection Committee was obliged to assess the suitability of officers on merit, based on the record of their service and experience; but the Selection Committee considered only the past 5 ACR grading record. It was pleaded that this had vitiated the selection process inasmuch as the outstanding service record of Rajeev Bhargava (extracted by us in para 3 above) was ignored; (ii) the Screening Committee had applied the criteria 3 Outstanding gradings and 2 Very Good gradings as the eligibility for empanelment and had awarded 5 marks for grading Outstanding, 4 marks for Very Good and 3 marks for Good. By taking into account ACR grading for the period 8.8.2003 to 5.11.2003 as Good, prejudice was caused to Rajeev Bhargava. It was pleaded that the period 8.8.2003 to 5.11.2003 comes to 89 days inasmuch as the Reporting Authority had joined in the afternoon of 8.8.2003 and hence said day has to be excluded. It was further pleaded that the Reporting Authority had taken leave on 3 days during this period and thus 3 more days had to be deducted while computing 90 days. Placing reliance upon DOPT OM dated 22.5.1975, it was highlighted that the same required: „The officers at both reporting and reviewing level are required to have at least 3 months’ experience of supervising the works and conduct of the government servant reported upon’. Reliance was also placed upon a communication dated 7.8.2009 from the South Central Railway to the Secretary W.P.(C) Nos.5859/10 & 6426/10 Page 8 of 39 Railway Board to highlight that the Railway Authorities themselves were of the opinion that the ACR grading for the said period i.e. 8.8.2003 to 5.11.2003 had to be ignored. The South Central Railway letter dated 7.8.2009 which was relied upon reads as under:- “The Secretary, Railway Board, New Delhi (Attn.Shri M.S.Mehra, Joint Secy. (Confdl) Sub: Representation of Sri Rajeev Bharga, ex.PCE/SCR/SC and now Addl. Director General, RDSO/Lucknow about his ACR for the year 2003-04. A copy of representation dt.17.07.2009 received from Sri Rajeev Bhargav, ex.PCE/SCR/SC and now Addl. Director General, RDSO/Lucknow is enclosed herewith for necessary action at your end. It is seen from the representation of Sri Rajeev Bhargav, Addl.Director General, RDSO that he is requesting for the issue of „non-initiation‟ certificate concerning the Part ACR for the year 2003-04 (period from 8.8.03 to 5.11.03). In this connection, it is stated that Sri Rajeev Bhargav, had held the following posts during the assessment year 2003-04 in „South Central Railway.‟ CBE SA.Grade 08.08.2003 to 05.11.2003 PCE SA.Grade 06.11.2003 to 09.01.2004 (on dual charge looking after the posts of CBE and PCE in SA Grade) PCE HA Grade 10.01.2004 to 31.03.2004 As Sri Rajeev Bhargav had held two posts of CBE and PCE during the assessment year, the ACR was written in two parts separately for both the posts. The part II ACR which involved the posting of Sri Rajeev Bhargav as a PHOD was initiated by the General Manager and sent to the Board for review and acceptance. As regards part I of the ACR, the same was initiated by Sri S.R.Chowdhury, the then PCE and reviewed by the General Manager. As already advised by this Railway W.P.(C) Nos.5859/10 & 6426/10 Page 9 of 39 vide letter of even number dt. 21.04.2009 that Sri S.R.Chowdhury, the then PCE was on sanctioned LAP for 3 days from 29.9.2003 to 1.10.2003 during the reporting period and thereby not completing minimum period of 90 days required for initiation of an ACR. However, this fact has come to the notice of this Railway only on receipt of representation from Sri Rajeev Bhargav. Had the issue come to the notice of the Railway at the time of initiation of the part ACR for the relevant period, the prescribed procedure to meet such a situation would have been followed. As far as the present representation from Sri Rajeev Bhargav, requesting for the issue of „non-initiation‟ certificate is concerned, issuance of the same by the Railway is felt to be inappropriate as the same is already available with the Railway Board and that it is not known to the Railway if the same has been considered for any other purpose earlier including promotion. It is also felt that if for any technical reason, an ACR is to be treated as invalid, such an action can only be initiated by the accepting authority. Incidentally, it is observed that the Railway Board, as the accepting authority, had made the ACR of Sri Sopan Laxman, the then Asst. Secretary/RRB/Secunderabad for the year 2005-06 as „invalid‟ due to certain technical reasons vide letter No.2007/SCC/2/10 dt. 17.10.2007. A copy of Board‟s letter is enclosed herewith for information and further necessary action. As explained, Board may consider the representation of Sri Rajeev Bhargav Addl. Director General/RDS/Lucknow and take remedial action if required. Sd/ DGM(CO-ord) & Secretary to GM For General Manager.” 12. It was further pleaded (iii) that for the period 1.8.2006- 31.3.2007 the Reporting Authority graded Rajeev Bhargava „Very Good‟ which was upgraded by the Reviewing Authority to W.P.(C) Nos.5859/10 & 6426/10 Page 10 of 39 „Outstanding‟ and was reduced by the Chairman Railway Board to „Very Good‟, but without recording reasons which was accepted by the Accepting Authority i.e. the Hon‟ble Railway Minister. Contention urged was that the Chairman Railway Board was an interloper and the ACR Proformas envisaged no role of his, thus it was urged that for the entire year 2006-07 grading of Rajeev Bhargava had to be treated as „Outstanding‟. An alternative contention was urged that the reasons for downgrading were not stated and even on said count it was urged that downgrading recommended by the Chairman Railway Board and accepted by the Accepting Authority i.e. the Hon‟ble Railway Minister had to be ignored. Contention No.(iv) urged was that the grading for the period 1.4.2007 - 24.8.2007 being „Good‟ had to be ignored as it was below the benchmark and hence, having adverse consequence. In support of which contention the decision of the Supreme Court reported as Dev Dutt Vs. UOI & Ors. 2008 (3) SCT 429 was relied upon. Contention No.(v) urged was that clause 9 of the policy notified by the Railways on 16.7.1986 required Selection Committee to meet after 1st April i.e. as soon as the report for the year ending March of that year is ready, which was modified vide circular dated 5.6.2007 by shifting the date of the Selection Committee meeting to be after 15th July. Plea urged was that the Selection Committee met on 18.3.2009 and 8.5.2009 and the result thereof was that the ACR grading of Rajeev Bhargava, which was „Outstanding‟ for the period 1.4.2008 - 31.3.2009 was ignored causing prejudice. 13. To put it in mathematical language, contention urged was that since the Selection Committee had set the benchmark 3 „Outstanding‟ and 2 „Very Good‟ gradings; requiring a candidate to score 23 points out of 25; Outstanding W.P.(C) Nos.5859/10 & 6426/10 Page 11 of 39 getting 5 marks, Very Good getting 4 marks and Good getting 3 marks, for the year 1.4.2003 - 31.3.2004; for the 3 periods for which grading was accepted by the Selection Committee it awarded Rajeev Bhargava 4 marks i.e. 5 + 3 + 4 ÷ 3 = 4 and if the period 8.8.2003 - 5.11.2003 for which grading was Good was ignored, Rajeev Bhargava would have got the grading 5 + 4 ÷ 2 = 4.5. Likewise, for the period 31.7.2006 - 31.3.2007 where the Chairman‟s downgrading of Very Good was accepted and hence for the period 1.4.2006 - 31.3.2007 marks awarded were 5 + 4 ÷ 2 = 4.5, the same ought to have been 5 inasmuch as downgrading had to be ignored. Similarly for the period 1.4.2007 - 24.8.2007 where grading awarded was Good resulting in the Railway Board awarding marks 3 + 5 ÷ 2 = 4, the same ought to have been 5 since grading Good being below benchmark had to be ignored. So reworked out, Rajeev Bhargava pleaded that calculative as aforesaid he would have crossed the cut-off point 23. With respect to the ACR grading taken into account for the period 1.4.2003 to 31.3.2004 it was pleaded that if the entire period was excluded and the ACR grading for the year 2008-09 was included, Rajeev Bhargava would have obtained 23.5 marks. 14. Since we have referred to the Railway Board‟s circular dated 16.7.1986 relied upon by Rajeev Bhargava as also its amendment carried out on 5.6.2007, it would be useful if we reproduce relevant extracts thereof at this stage. The relevant part of the scheme notified on 16.7.1986 reads as under:- “SCHEME FOR MAKING APPOINTMENTS TO POSTS OF GENERAL MANAGERS AND EQUIVALENT IN THE RAILWAYS 1. Title The Scheme shall be called the Scheme for appointment to the posts of General Managers and equivalent in the Indian Railways. W.P.(C) Nos.5859/10 & 6426/10 Page 12 of 39 2. Date of effect The Scheme shall come into force with effect from 16th July, 1986. 3. Applicability The Scheme shall be applicable to the posts of General Managers and equivalent in the scale of `24,050-26,000 as listed at Appendix-I. 4. Method 4.1 A panel of names for consideration for appointment to the posts of General Manager and equivalent, listed in Appendix-I to the Scheme, shall be prepared by a Selection Committee set up in accordance with para 5 of the Scheme. For this purpose, the Selection Committee shall consider on merit, eligible officers of each of the Railway Services listed in Appendix-II, having regard to their inter-se seniority as well as their seniority in the respective Services-officers working in Higher Administrative Grade (`22,400-24,500/-) being placed above those working in Senior Administrative Grade (`18,400-22,400/-) in each respective Service and prepare a panel of officers considered suitable in all respect for appointment to the posts of General Manager and equivalent. The Selection Committee may also recommend the specific type/types of assignment for which a particular officer mentioned in the panel may be considered suitable. 4.2 …… 4.3 On every occasion on which appointment is required to be made to any particular vacancy/vacancies amongst the posts of General Managers and equivalent listed in Appendix-I, the Railway Board shall, keeping in mind the specific requirement(s), if any, of the post(s) to be filled up, process the case for obtaining the approval of the Appointments Committee of the Cabinet for appointment of person/persons included in the Select List, to such post/posts. 4.4 While taking action as in the preceding sub- para, the Railway Board shall normally suggest the promotion of empanelled officers in order of their W.P.(C) Nos.5859/10 & 6426/10 Page 13 of 39 inter-se seniority within those cleared for that particular type of assignment, except when- (a) …….. (b) …….. (c) …….. (d) …….. 5. …….. 6. Assessment of suitability The Selection Committee will assess the suitability in all respects of officers belonging to the Group „A‟ Services listed in Appendix-II on merits, based on the record of their service and experience and any special requirements of the post(s) for which selection is to be made. In judging the suitability of the officers, the Selection Committee will give due consideration to their performance, as Divisional Railway Managers and as Principal Heads of Departments in the Railways. 7. ……… 8. ……… 9. Periodicity of meeting of Selection Committee and currency of panels The Selection Committee shall normally meet once a year at a suitable time after 1st April as soon as the reports for the year ending March of that year are available for consideration. They may meet at intervals of less than a year, if the circumstances so require. They will draw up a panel, consisting of such number of names as may be necessary for appointment to the existing and anticipated vacancies in the posts of General Manager and equivalent during the period from 1st July of the year to the 30th June of the next year.” 15. The amendment shifting the date when the Selection Committee has to meet as per clause 9 aforenoted which was brought into force on 5.6.2007 may be reproduced. Relevant part thereof reads as under:- “AMENDMENT TO RESOLUTION DATED 16.07.1986 REGARDING SCHEME FOR MAKING APPOINTMENT TO W.P.(C) Nos.5859/10 & 6426/10 Page 14 of 39 THE POSTS OF GENERAL MANAGERS IN SCALE OF `24,050-26,000/- UNDER THE MINISTRY OF RAILWAYS 1. ……. 2. Further, under the heading “Periodicity of meeting of Selection Committee and the panel year” appearing in Para 9 of the said Annexure to the resolution dated 16.07.1986, the existing Para shall be amended to read as under:- “The Selection Committee shall normally meet once a year between 15th July and November of the preceding financial year and take into consideration the Confidential Reports upto March of that year. They may meet at intervals of less than a year, if the circumstances so require. They will draw up a panel, consisting of such number of names as may be necessary for appointment to the existing and anticipated vacancies in the posts of General Manager and equivalent during the period from 1st April of the year to 31st March of the next year. The panel drawn up by the Selection Committee shall be valid for vacancies arising during the period 1st April of the year to 31st March of the next year.” 16. The core pleadings of Rajeev Bhargava were responded to by the Railways in paras 2, 7, 9 and 10 of the counter reply filed, which pleadings read as under:- “2. That it is submitted that the appointments to the posts of General Managers/equivalent posts are made under the provisions stipulated in Resolution of Railway Board dated 16.07.1986, as amended from time to time. It is submitted that tough in some places the word „promotion‟ is used in the said Resolution, but in effect the posts of General Manager/equivalent are not promotional posts but are appointments made by a strict process of selection. Therefore, the mere use of the word „promotion‟ in some places in the Resolution cannot be taken as if the posts of General Manager/equivalent are promotional posts. x x x x 7. In the Selection for the panel under consideration, 32 officers belonging to the various organized Group „A‟ Railway Services were considered. For the purpose of assessment, ACRs of these officers for the five year period from April, 2003 – March, 2004 W.P.(C) Nos.5859/10 & 6426/10 Page 15 of 39 to April 2007 – March, 2008 were taken into consideration by the Selection Committee. The name of the Applicant appears at Sr.No.20 among the 32 officers considered. x x x x 9. It is submitted that the Selection Committee makes its own assessment in regard to the suitability of the officers on the basis of the entries, including gradings as recorded in the ACRs. For the posts of General Managers and equivalent, no specific bench- mark has been laid down. However, keeping in view the fact that these posts are key positions on the Railways, and are required to be manned by officers of proven ability, competence with