.. 0-. ,,.... 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 1494/2011 THE CHAIRMAN CUM MANAGING DIRECOR, NBCC .... Petitioner Through 'Mr. V.K. Rao, Sr. Advocate with Mr. Raj eev Sharma and Mr. Abhishek Kumar, Advocates. versus RAJESH KUMAR AND ORS ..... Respondent 0/o CORAM: Through Mr. T.D. Yadav, Advocate for the respondent No.1. HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA ORDER 07.03.2011 By this writ petition preferred under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legal propriety of the order dated 2nd December, 2010 passed by the Central Administrative Tribunal, Principal Bench (for short, the Tribunal) in O.A.No.3499/2009. 2. The petitioner-NBCC issued an office order No.123/2009 on 5th March, 2009. In the said scheme, it has been provided as follows:- "In acknowledgement of the contribution of employees of the Corporation at all levels in the form of their performance resulting in achievement of the targeted business development/workload, turnover, profitability and overall growth and efficiency, executives, whose performance grading in the previous three financial years W.P.(C) No.1494/2011 Page 1 of 8 Digitally Signed By:AMULYA 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 ,...._ \ ..... ' - 3. has been rated "Outstanding" (A) or "Very Good" (B), are provisionally promoted, with or without change in their designation, as may be the case and placed in the IDA pattern scale of pay applicable to the post. Executives promoted under this Order should send their acceptance of promotion in the proforma attached to this Office Order as ANNEXURE 'A' within ten days of the issue of this Officer Order. In case their acceptance is not received in Personnel Division by the stipulated date, no effect will be given to their promotion provisionally ordered under this Officer Order. As a one time dispensation, such Executives who do not possess the prescribed qualifications and are not eligible for promotion to the next higher post in terms of the extant Promotion Policy are also promoted to the next higher post." Be it noted, on 5th March, 2009 another order was passed on similar terms relating to various other grades. Thereafter, by the office order No.177/2009 dated 13th April, 2009, the said scheme was liberalized by stating as follows:- 4. " The Committee examined the matter in holistic manner and recommended that performance of employees whose performance was rated :'C" in any one of the last three years and who were thus not promoted -could be analyzed to ascertain if one "C" rating could be an inconsistent rating as compared to the overall performance/rating in a span of five years. The Committee after in depth examination of all such cases isolated cases of such inconsistency. Based on the findings and recommendations of the Committee such employees are now be promoted under this Order." We may note with profit that after the first order was passed, the petitioner extended the benefit of promotion to the employees who have W.P.(C) No.1494/2011 Page 2 of 8 ~ I . r ' met the requisite criteria stipulated in the said order and thereafter when representations were received, the second order came into existence and benefits were extended. 5. Despite extension of benefit certain employees were left out as they did not meet the requisite bench-mark. In these circumstances, they approached the Tribunal under Section 19 of the Administrative Tribunal Act, 1985 and the Tribunal after referring to the order has opined thus:- "3. In the counter reply, by giving methodology of holding a DPC for promotion, it is stated that those who have been considered for promotion are on the basis of their perfonnance in the last three financial years, as their gradings are 'A' or 'B' whereas the applicant having 'C' grading in the last five years. It appears that the benchmark has been set out by the respondents and the grading given to the applicant below this benchmark has not been communicated, he has been superceded for promotion by his juniors. 4. In the above view of the matter, following Dev Dutt Vs. Union of India, JT 2008 (7) SC 463, we now direct methodology be adopted by the respondents to communicate these gradings in the ACR and hold a review DPC and on upgradation of the ACR consider applicant for promotion as Accounts Officer with all consequential benefits from the date of immediate juniors within a period of three months from the date of receipt of a copy of this order. The OA stand disposed of." 6. Mr. V.K. Rao, learned senior counsel appearing for the petitioner has raised the following contentions:- (a) The Tribunal has fallen into grave error by relying on the decision W.P.(C) No.1494/2011 Page 3 of 8 in Dev Dutt Vs. Union of India & Others AIR 2008 Supreme Court 2513 inasmuch as the ratio of the said decision would not be applicable when the employer evolves a beneficial scheme for promotion. (b) The decision in Dev Dutt (supra) is only applicable to the regular scheme of promotion and not to other cases where promotional benefit is conferred by the employer by applying special scheme or a time bound {'' policy scheme. (c) By virtue of the order passed by the Tribunal there would be other ( employees who would be involved in making representations for up gradation of the ACRs and the same would be a herculean task on the part of the employer, which is totally unwarranted. r (d) Language implied in paragraph 4 of the order of the Tribunal almost gives a command to the petitioner to upgrade the ACR and confer benefit of promotion whereas neither the Tribunal nor the Court has the jurisdiction to issue a direction for grant of promotion to the employer since the only right of an employee is to claim consideration for promotion. 7. Mr. T .D. Y adav, learned counsel appeanng for the respondent supported the order passed by the Tribunal contending, inter alia, that the decision rendered in the case ofDev Dutt (supra) is squarely applicable to W.P.(C) No.l494/2011 Page 4 of 8 ,.. the case at hand as there cannot be any distinction between a regular concept of promotion and a one-time promotion which is given under the beneficent scheme by the employer. 8. To appreciate the submissions raised at the Bar, it will be appropriate to refer to what has been stated in Dev Dutt (supra). Their Lordships in paragraphs 10 and 11 have held thus:- 9. "10. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should liave "very good" entry for the last five years. Thus in this situatwn 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 2raying that the said entry for the year 1993-1994 should be upgraded from "gooa" 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 oppmiunity of making such a representation should have been given to the appellant, and that would only have been possible Iiad 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 Ciecisions relied upon by the learned counsel for the respondent are distinguishable." Thereafter, in paragraphs 19, 23 and 24, it has been opined thus:- W.P.{C) No.1494/2011 Page 5 of 8 / J •• ( i "19. In our opinion, 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 an entry may adversely affect 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 upg1;adation. Hence, non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution . 23. Learned counsel for the respondent also relied upon the decision of this Court in Union of India v. S.K Gael and on the strength of the same submitted that only an adverse entry need be communicated to the incumbent. The aforesaid decision is a two-Judge Bench decision and hence cannot prevail over the seven-Judge Constitution Bench decision of this Court in Maneka Gandhi v. Union of India3 in which it has been held that arbitrariness violates Article 14 of the Constitution. Since the aforesaid decision in Union of India v. S.K. Goeil has not considered the aforesaid Constitution Bench decision in Maneka Gandhi case, it cannot be said to have laid down the correct law. Moreover, this decision also cannot be treated as a Euclid's formula since there is no detailed discussion in it about the adverse consequences of non-communication of the entry, and the consequential denial of making a representation against it. 24. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in- grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted." W.P.(C) No.1494/2011 Page 6 of 8 .( 7 10. On a perusal of the aforesaid pronouncement of law, we do not find that it is only limited to regular scheme of promotion. In fact, immense emphasis has been given on fairness and transparency in public administration. Their Lordships have laid emphasis that the 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 because non-communication of such an entry is likely to affect the employee in two ways: (i) had the entry been communicated to the r employee, he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future. (ii) he would have an opportunity of m<:tking a representation against the entry if he feels it is unjustified, and pray for its upgradation. Thus, the subinission of Mr. V.K. Rao that the said decision has been erroneously placed reliance upon by the Tribunal is not acceptable. 1L The second limb of the submission of Mr. V.K. Rao is that laxity was shown by the second order passed on 1oth April, 2011. By virtue of passing of the second order, there has been relaxation but despite the same, the petitioner was not covered and hence, the question of representation for up gradation of the ACR comes into play, therefore, we still hold that the ratio laid down in Dev Dutt (supra) would squarely get W.P.(C) No.1494/2011 Page 7 of 8 applicable. 12. After so holding, the residuary issue that needs to be adjudicated is whether the Tribunal has really issued a mandamus to upgrade the ACRs and extend the benefit. Learned senior counsel has drawn our attention to the paragraph 4 of the order passed by the Tribunal which we have reproduced hereinabove. We have been apprised that there is no question •• of having a DPC and only on the basis of the bench-mark, benefit is to be confened. In view of the aforesaid, we modify the order passed by the ( Tribunal that if representations are given for up gradation of the ACR, the same shall be considered by the e~ployer in proper perspective and on ·'- \ such consideration if the employees become eligible the benefit of promotion be extended, if the candidate is not otherwise unsuitable. When we mean unsuitable, it may include initiation of disciplinary proceedings or criminal proceedings against the incumbent. With the aforesaid clarification, the order passed by the Tribunal is sustained. There shall be no order as to costs. MARCH 07,2011 NA .r- W.P.(C) No.1494/2011 /Jn,... .,. yf //'", / CHIEF JUSTICE ~-·/[L_ SANJIV KHANNA, J. Page 8 of 8