Yamuna Prasad vs. Indraprastha Power Generation Company Limited & Pragati Power Corporation Limited And Anr.

$~144-147
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 27 August, 2024
+ W.P.(C) 12633/2018
AJAY KUMAR SINHA .....Petitioner
Through: Mr. Anuj Aggarwal, Ms. Divya
Aggarwal, Mr. Siddharth Nair and Mr. Pradeep
Kumar, Advocates.

versus

INDRAPRASTHA POWER GENERATION COMPANY
LIMITED & PRAGATI POWER CORPORATION LIMITED
& ANR .....Respondents
Through: Mr. R.K. Vats and Ms. Kumari Alka,
Advocates.

+ W.P.(C) 13300/2018
YAMUNA PRASAD .....Petitioner
Through: Mr. Anuj Aggarwal, Ms. Divya
Aggarwal, Mr. Siddharth Nair and Mr. Pradeep
Kumar, Advocates.

versus

INDRAPRASTHA POWER GENERATION COMPANY
LIMITED & PRAGATI POWER CORPORATION LIMITED
& ANR .....Respondents
Through: Mr. R.K. Vats and Ms. Kumari Alka,
Advocates.

+ W.P.(C) 13261/2018
V.P. SINGH .....Petitioner
Through: Mr. Anuj Aggarwal, Ms. Divya
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:17.09.2024
20:21:30
W.P.(C) 12633/2018 Page 1 of 31

Aggarwal, Mr. Siddharth Nair and Mr. Pradeep
Kumar, Advocates.

versus

INDRAPRASTHA POWER GENERATION COMPANY
LIMITED & PRAGATI POWER CORPORATION LIMITED
& ANR .....Respondents
Through: Mr. R.K. Vats and Ms. Kumari Alka,
Advocates.

+ W.P.(C) 13277/2018
GOPAL SINGH .....Petitioner
Through: Mr. Anuj Aggarwal, Ms. Divya
Aggarwal, Mr. Siddharth Nair and Mr. Pradeep
Kumar, Advocates.

versus

INDRAPRASTHA POWER GENERATION COMPANY
LIMITED & PRAGATI POWER CORPORATION LIMITED
& ANR .....Respondents
Through: Mr. R.K. Vats and Ms. Kumari Alka,
Advocates.

CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
JYOTI SINGH, J. (ORAL)
1. These writ petitions have been filed by the Petitioners under Article
226 of the Constitution of India seeking promotions from the date their
immediate juniors were promoted with consequential restoration of seniority
on upgradation of their respective Annual Confidential Reports (‘ACRs’).
Signature Not Verified
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W.P.(C) 12633/2018 Page 2 of 31

As a common question of law arises in these writ petitions, they were heard
together and are being decided by this common judgment.
W.P.(C) 12633/2018
2. Indraprastha Power Generation Company Ltd. (‘IPGCL’) was
incorporated on 01.07.2002 and it took over power generation activities
from erstwhile DVB w.e.f. 01.07.2002 after its unbundling into six
successor companies.
3. Petitioner was appointed as Assistant Manager (Technical) on
21.09.2004 by IPGCL after clearing the All-India Recruitment Examination
conducted by National Thermal Power Corporation (‘NTPC’). On
15.02.2012, the Board of Directors of IPGCL and Pragati Power
Corporation Limited (‘PPCL’) in their meeting passed Resolution
Nos.56.4.1 and 59.4.1 laying down the criteria for promotion to the post of
Deputy Manager (Technical) from Assistant Manager (Technical), as per
which Assistant Manager (Technical) completing 4/5 years of regular
service was eligible for promotion to the post of Deputy Manager
(Technical). In the seniority list of Assistant Manager (Technical) published
by IPGCL vide Office Order dated 30.08.2012, Petitioner was placed at
Serial No.63.
4. On 12.09.2012, impugned Office Order was issued by IPGCL
whereby several Assistant Managers (Technical) were promoted to the post
of Deputy Managers (Technical) on completion of four years of service.
Petitioner had joined IPGCL on 21.09.2004 and was eligible for promotion
w.e.f. 21.09.2008. However, he was promoted w.e.f. 21.09.2009, thereby
leading to loss of one year in seniority and consequential benefits.
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5. Aggrieved by this, Petitioner gave a representation dated 13.10.2012
to General Manager (HR), followed by a reminder dated 07.12.2012 seeking
rectification of his promotion order to the extent of granting him promotion
from 21.09.2008. In response to an application under the Right to
Information Act, 2005 (‘RTI Act’), Petitioner was informed on 14.12.2012
that his ACR for the period 21.09.2004 to 31.03.2005 was graded ‘Average’
and for this reason he was declared UNFIT in the initial consideration but
with the addition of one more ACR, he was promoted w.e.f. 21.09.2009 for
the successive year. It is averred that this ACR was never communicated to
the Petitioner and ought not to have been in the reckoning for promotion by
the DPC. On 17.12.2012, Petitioner represented for upgradation of his ACR.
After approval from the Board of Directors, the matter pertaining to
upgradation of the said ACR of the Petitioner was taken up by the
Moderation Committee on 03.03.2014 and it was later learnt by the
Petitioner that the ACR had been upgraded.
6. In the Provisional Combined Seniority List of Deputy Managers
(Technical) circulated on 16.04.2015, juniors of the Petitioner were shown
as senior to him on account of his promotion taking effect from 21.09.2009.
Petitioner again represented against the loss of seniority and also sought
information on his ACR as till date he had no information about the decision
of the Moderation Committee.
7. By a letter dated 04.08.2015, Petitioner was informed that his final
grading in the ACR for the period 21.09.2004 to 31.03.2005 had been
upgraded to ‘Good’, but despite this the promotion was not given effect to
from 21.09.2008 at par with his juniors resulting in loss of seniority and
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Signing Date:17.09.2024
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W.P.(C) 12633/2018 Page 4 of 31

aggrieved by this, Petitioner filed the present petition.
W.P.(C) 13300/2018
8. Petitioner was appointed as Inspector (Elect.) on 06.06.1991 with
erstwhile DESU and thereafter on unbundling of DVB, he was appointed
with IPGCL and promoted from the post of JE to the post of Assistant
Manager (Technical) on 28.07.2006. On 15.02.2012, the Board of Directors
of IPGCL and PPCL in their meeting passed Resolution Nos.56.4.1 and
59.4.1 laying down the criteria for promotion to the post of Deputy Manager
(Technical) from Assistant Manager (Technical), as per which Assistant
Manager (Technical) completing 4/5 years of regular service was eligible for
promotion to the post of Deputy Manager (Technical). In the seniority list of
Assistant Manager (Technical) published by IPGCL vide Office Order dated
30.08.2012, Petitioner was placed at Serial No.77 and Rajesh Kumar, Manoj
Kumar Garg, Pramanand Pradhan, etc. were shown juniors to him.
9. On 12.09.2012, impugned Office Order was issued by IPGCL
whereby several Assistant Managers (Technical) were promoted to the post
of Deputy Managers (Technical) on completion of four years of service.
Petitioner was promoted as Assistant Manager (Technical) w.e.f. 28.07.2006
and was, therefore, eligible for promotion as Deputy Manager (Technical)
w.e.f. 28.07.2010. However, he was promoted w.e.f. 28.07.2012 instead of
28.07.2010, thereby leading to loss of two years in seniority and
consequential benefits.
10. Petitioner was informed on 02.05.2014 that his ACRs for the periods
2009-10 and 2010-11 were ‘Average’ and for this reason he was declared
UNFIT in the initial consideration but with the addition of next ACR for the
Signature Not Verified
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period 2011-12, he was declared FIT and promoted w.e.f. 28.07.2012. It is
averred that these ACRs were never communicated to the Petitioner and
ought not to have been in the reckoning for promotion by the DPC. On
08.05.2014, Petitioner represented to General Manager (HR) for upgradation
of his ACRs followed by reminders. In response to information sought under
RTI Act, Petitioner was informed vide letter dated 28.03.2016 that his ACRs
had been upgraded to ‘Good’.
11. All four Petitioners herein filed writ petitions being W.P. (C)
Nos.2997/2016, 4072/2016, 4649/2016 and 7270/2016, which were disposed
of on 16.04.2018 recording the contentions of the respective parties with a
direction to decide the representations of the Petitioners for ante-dating their
promotions as per law, in light of the decision of the Division Bench of this
Court in SI/Ex. Rajeev Teotia v. Union of India & Ors., 2014 SCC OnLine
Del 2360 , wherein it was held that upon review of ACRs, case of the
employee has to be considered by review DPC retrospectively. In light of
this decision, impugned orders were passed by IPGCL, rejecting their claims
for ante-dating the promotions.
W.P.(C) 13261/2018
12. Petitioner was appointed as Technical (Helper) in February, 1988 with
erstwhile DESU and promoted as Operator in 1989 and thereafter on
unbundling of DVB, he was appointed with IPGCL and promoted to the post
of Assistant Manager (Technical) on 14.11.2003 from the post of Assistant
Controller. On 15.02.2012, the Board of Directors of IPGCL and PPCL in
their meeting passed Resolution Nos.56.4.1 and 59.4.1 laying down criteria
for promotion to the post of Deputy Manager (Technical) from Assistant
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Signing Date:17.09.2024
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Manager (Technical), as per which Assistant Manager (Technical)
completing 4/5 years of regular service was eligible for promotion to the
post of Deputy Manager (Technical). In the seniority list of Assistant
Manager (Technical) published by IPGCL vide Office Order dated
30.08.2012, Petitioner was placed at Serial No.29.
13. On 12.09.2012, impugned Office Order was issued by IPGCL
whereby several Assistant Managers (Technical) were promoted to the post
of Deputy Managers (Technical) on completion of four years of service.
Petitioner was promoted as Assistant Manager (Technical) w.e.f. 14.11.2003
and was, therefore, eligible for promotion as Deputy Manager (Technical)
w.e.f. 14.11.2007. However, he was promoted w.e.f. 14.11.2008 instead of
14.11.2007, thereby leading to loss of one year in seniority and
consequential benefits.
14. Petitioner represented against his delayed promotion. He was
informed on 28.03.2016 that his ACR for the period 17.11.2003 to
31.03.2004, which was earlier graded as ‘Average’ and was the reason for
his non-promotion from 14.11.2007, was upgraded to ‘Good’. Pursuant to an
order of this Court passed on 16.04.2018, Petitioner’s representation was
considered for ante-dating the promotion but was rejected by the impugned
order dated 24.07.2018.
W.P.(C) 13277/2018
15. Petitioner was appointed as Technical (Operator) on 14.03.1990 with
erstwhile DESU and was subsequently promoted as Operator and Assistant
Controller. On coming to IPGCL, Petitioner was promoted as Assistant
Manager (Technical) on 18.10.2006. On 15.02.2012, the Board of Directors
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of IPGCL and PPCL in their meeting passed Resolution Nos.56.4.1 and
59.4.1 laying down criteria for promotion to the post of Deputy Manager
(Technical) from Assistant Manager (Technical), as per which Assistant
Manager (Technical) completing 4/5 years of regular service was eligible for
promotion to the post of Deputy Manager (Technical). In the seniority list of
Assistant Manager (Technical) published by IPGCL vide Office Order dated
30.08.2012, Petitioner was placed at Serial No.92.
16. On 12.09.2012, impugned Office Order was issued by IPGCL
whereby several Assistant Managers (Technical) were promoted to the post
of Deputy Managers (Technical) on completion of four years of service.
Petitioner was promoted as Assistant Manager (Technical) w.e.f. 18.10.2006
and was, therefore, eligible for promotion as Deputy Manager (Technical)
w.e.f. 18.10.2010. However, he was promoted w.e.f. 18.10.2012 instead of
18.10.2010, leading to loss of two years in seniority and consequential
benefits.
17. Petitioner represented against his delayed promotion. He was
informed on 17.09.2013 that his ACRs for the periods 2006-07, 2007-08,
2008-09 and 2009-10, which were earlier graded as ‘Average’ and was the
reason for his non-promotion from 18.10.2010, were upgraded to ‘Good’.
Pursuant to an order of this Court passed on 16.04.2018, Petitioner’s
representation was considered for ante-dating the promotion but was
rejected by the impugned order dated 24.07.2018.
COMMON FACTS
18. On 15.02.2012, the Board of Directors of IPGCL/PPCL vide
Resolution Nos.56.4.1 and 59.4.1 laid down the criteria for promotion to the
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Signing Date:17.09.2024
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W.P.(C) 12633/2018 Page 8 of 31

post of Deputy Manager (Technical) whereby an Assistant Manager
(Technical) with 4/5 years of regular service was eligible for promotion and
the assessment criteria was based on weightage of marks under different
Heads, as follows:-


19. On 08.08.2012, DPC was convened by IPGCL, in which 100 eligible
Assistant Managers (Technical) were considered and 86 were found FIT for
promotion on notional basis. 11 Assistant Managers (Technical) including
the Petitioners were not able to cross the threshold of minimum 60 marks
required for promotion due to less scores under the Head ‘PAR Assessment’
and this was on account of ‘Average’ gradings in some of their ACRs in the
reckoning before the DPC. In the same DPC, these Officers were also
considered under the extended assessment criteria for the succeeding
year(s), in which ACR(s) for subsequent years were taken and they were
then declared FIT and promoted from prospective dates, but lost out on
seniority qua their juniors.
20. The Supreme Court pronounced the judgment in Dev Dutt v. Union of
India and Others, (2008) 8 SCC 725, wherein it was held that non-
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communication of entries in ACRs has a civil consequence as it affects the
chances of promotion of an employee and therefore, not only the ACRs
which are below benchmark but all entries even if ‘Good’ or ‘Very Good’
must be communicated. In implementation of the judgment, DoPT issued
O.M. dated 14.05.2009 with respect to maintenance and preparations of
Annual Performance Appraisal Reports (‘APARs’) and communication of
all entries in the APARs. This DoPT O.M. was adopted by IPGCL vide
Resolution dated 20.09.2013 with the approval of the Board of Directors.
Pursuant thereto, Moderation Committee was constituted and acting under
the mandate of Board’s decision, it reviewed the ACRs of the Petitioners
and upgraded them to ‘Good’ in August, 2015, however, their
representations for consequential benefits of ante-dating the promotions and
restoration of seniority were rejected on the ground that opening past cases
will open a pandora box inviting more representations from other employees
and moreover, IPGCL was not bound by DoPT O.M. 14.05.2009 and shall
consider the upgraded ACRs only in future DPCs.
COMMON CONTENTIONS ON BEHALF OF THE PETITIONERS
21. Petitioners contend that DPC convened on 08.08.2012 initially
considered 4/5 ACRs of the Petitioners which included uncommunicated
ACRs with ‘Average’ gradings. The assessment criteria for promotion to the
post of Deputy Manager (Technical) was based on weightage of marks
allocated towards qualification, experience and PAR Assessment and out of
a total of 80 marks, an eligible Assistant Manager (Technical) had to score
minimum 60 marks to cross the threshold for promotion. 45 marks were
allocated to PAR Assessment and since some of the ACRs of the Petitioners
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in the reckoning had ‘Average’ gradings, their total marks out of 45 reduced
compared to the others considered along with the Petitioners, resulting in
their being declared UNFIT for the promotion. Realising that
uncommunicated ACRs with ‘Average’ gradings ought not to have been
taken into consideration by the DPC, IPGCL upgraded the ‘Average’ ACRs
to ‘Good’ but did not hold a review DPC to give effect to the upgradation
and as a result, Petitioners became juniors to juniors who were declared FIT
in the initial consideration. IPGCL has therefore clearly erred and Petitioners
deserve to be considered by review DPC with upgraded ACRs and their
seniority ought to be restored.

22. Respondents were under an obligation to communicate the ACRs with
‘Average’ gradings knowing well that PAR Assessment had weightage of 45
marks out of total of 80 marks and the low scores towards ACRs would
adversely affect the promotions of the Petitioners albeit the law is no longer
res integra that not only below benchmark but all ACRs/APARs are
required to be communicated and in this context, reliance is placed on the
judgment of the Supreme Court in Dev Dutt (supra).
23. Even after the law was declared by the Supreme Court in Dev Dutt
(supra) and DoPT issued an O.M. on 14.05.2009 in compliance thereof,
Respondents waited till 2013 to implement the directions of the Supreme
Court and it was only on 20.09.2013 that the Board of Directors resolved to
adopt the DoPT O.M. dated 14.05.2009 and thereafter constituted a
Moderation Committee to consider the representations pertaining to ACRs
including those for the period prior to 2008-09 (only of reckonable periods)
and consequent thereto, upgraded the ACRs of the Petitioners but even then
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failed to convene review DPCs to give effect to upgradations. Law is settled
that if ACRs are upgraded, review DPCs have to be convened with
consequential benefits and in this context, reliance is placed on Prabhu
Dayal Khandelwal v. Chairman, Union Public Service Commission and
Others, (2015) 14 SCC 427; UOI v. Krishna Mohan Dixit, 2010 SCC
OnLine Del 3589; S.D. Dobhal v. UOI & Ors., 2014 SCC OnLine Del
1900; and Rajeev Teotia (supra). It is wrong for the Respondents to contend
that DoPT O.Ms. are not binding on them and they can adopt them at their
discretion. This contention was negated by this Court in the case of Sh.
Jitender Kumar v. Indraprastha Power Generation Co. Ltd. & Ors., 2017
SCC OnLine Del 6903.
COMMON CONTENTIONS ON BEHALF OF THE RESPONDENTS
24. It cannot be disputed that the Supreme Court has declared the law in
Dev Dutt (supra) that all ACRs irrespective of the grading being ‘Poor’,
‘Fair’, ‘Average’, ‘Good’ or ‘Very Good’, must be communicated to the
employee including an ‘Outstanding’ grading. However, DoPT O.Ms. are
not automatically applicable to IPGCL and do not bind unless and until they
are specifically adopted by the Board of Directors by a resolution. Hence,
DoPT O.M. dated 14.05.2009, the benefit of which is sought by the
Petitioners, was not automatically applicable when it was issued. The O.M.
was adopted by the Board of Directors in the Resolution passed on
20.09.2013, after which Moderation Committee was constituted which
considered the ACRs of the employees including the Petitioners for
reckonable periods and wherever the ratings were adverse i.e. ‘Average’ or
‘Below Average’, they were upgraded. It is not open to the Petitioners to
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seek a retrospective application of this resolution and/or ante-dating of their
promotions. When the DPC was held on 08.08.2012, in the first
consideration, Petitioners had ‘Average’ ACRs in their reckonable profile
but there was no provision for communication of the said ACRs and/or their
upgradation and thus they were rightly declared UNFIT as they failed to
cross the threshold of minimum 60 marks out of a total of 80. Accepting the
contention of the Petitioners would result in representations being received
from hundreds of employees and open a pandora box leading to
administrative chaos as well as unsettling settled seniorities. Keeping this in
the backdrop, it was decided that wherever pre-2008-09 ACRs were
upgraded, they would be considered only in future DPCs.
ANALYSIS AND FINDINGS
25. Insofar as the law on communication of ACRs/APARs is concerned,
it is no longer res integra that all ACRs irrespective of the gradings
including those which are ‘Very Good’/‘Outstanding’ have to be
communicated and non-communication is contrary to Article 14 of the
Constitution of India and opposed to principles of fairness, transparency and
equal opportunity in matters of promotions. In this context, I may allude to a
few passages from the landmark and celebrated judgment of the Supreme
Court in Dev Dutt (supra) as under:-
“11. Learned counsel for the respondent submitted that under Office
Memorandum No. 21011/4/87 [Estt. ‘A’] issued by the Ministry of
Personnel/Public Grievance and Pensions dated 10/11-9-1987, only an
adverse entry is to be communicated to the employee concerned. It is well
settled that no rule or government instruction can violate Article 14 or any
other provision of the Constitution, as the Constitution is the highest law
of the land. The aforesaid office memorandum, if it is interpreted to mean
that only adverse entries are to be communicated to the employee
concerned and not other entries, would in our opinion become arbitrary
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and hence illegal, being violative of Article 14. All similar
rules/government orders/office memoranda, in respect of all services
under the State, whether civil, judicial, police, or other service (except the
military), will hence also be illegal and are therefore liable to be ignored.
12. It has been held in Maneka Gandhi v. Union of India [(1978) 1
SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the
Constitution. In our opinion, the non-communication of an entry in the
ACR of a public servant is arbitrary because it deprives the employee
concerned from making a representation against it and praying for its
upgradation. In our opinion, every entry in the annual confidential report
of every employee under the State, whether he is in civil, judicial, police or
other service (except the military) must be communicated to him, so as to
enable him to make a representation against it, because non-
communication deprives the employee of the opportunity of making a
representation against it which may affect his chances of being promoted
(or get some other benefits). Moreover, the object of writing the
confidential report and making entries in them is to give an opportunity to
a public servant to improve his performance, vide State of U.P. v. Yamuna
Shanker Misra [(1997) 4 SCC 7 : 1997 SCC (L&S) 903] . Hence such non-
communication is, in our opinion, arbitrary and hence violative of Article
14 of the Constitution.
13. In our opinion, every entry (and not merely a poor or adverse
entry) relating to an employee under the State or an instrumentality of the
State, whether in civil, judicial, police or other service (except the
military) must be communicated to him, within a reasonable period, and it
makes no difference whether there is a benchmark or not. Even if there is
no benchmark, non-communication of an entry may adversely affect the
employee's chances of promotion (or getting some other benefit), because
when comparative merit is being considered for promotion (or some other
benefit) a person having a “good” or “average” or “fair” entry certainly
has less chances of being selected than a person having a “very good” or
“outstanding” entry.
14. In most services there is a gradation of entries, which is usually as
follows:
(i) Outstanding
(ii) Very Good
(iii) Good
(iv) Average
(v) Fair
(vi) Poor

A person getting any of the entries at Items (ii) to (vi) should be
communicated the entry so that he has an opportunity of making a
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representation praying for its upgradation, and such a representation must
be decided fairly and within a reasonable period by the authority
concerned.
15. If we hold that only “poor” entry is to be communicated, the
consequences may be that persons getting “fair”, “average”, “good” or
“very good” entries will not be able to represent for its upgradation, and
this may subsequently adversely affect their chances of promotion (or get
some other benefit).
16. In our opinion if the office memorandum dated 10/11-9-1987, is
interpreted to mean that only adverse entries (i.e. “poor” entry) need to be
communicated and not “fair”, “average” or “good” entries, it would
become arbitrary (and hence illegal) since it may adversely affect the
incumbent's chances of promotion, or to get some other benefit. For
example, if the benchmark is that an incumbent must have “very good”
entries in the last five years, then if he has “very good” (or even
“outstanding”) entries for four years, a “good” entry for only one year
may yet make him ineligible for promotion. This “good” entry may be due
to the personal pique of his superior, or because the superior asked him to
do something wrong which the incumbent refused, or because the
incumbent refused to do sycophancy of his superior, or because of caste or
communal prejudice, or to for some other extraneous consideration.
17. 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 upgradation. 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 [(1978) 1 SCC 248 :
AIR 1978 SC 597] that arbitrariness violates Article 14 of the
Constitution.
18. Thus, it is not only when there is a benchmark but in all cases that an
entry (whether it is poor, fair, average, good or very good) must be
communicated to a public servant, otherwise there is violation of the
principle of fairness, which is the soul of natural justice. Even an
outstanding entry should be communicated since that would boost the
morale of the employee and make him work harder.
xxx xxx xxx
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22. 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.
xxx xxx xxx
36. In the present case, we are developing the principles of natural justice
by holding that fairness and transparency in public administration
requires that all entries (whether poor, fair, average, good or very good)
in the annual confidential report of a public servant, whether in civil,
judicial, police or any other State service (except the military), must be
communicated to him within a reasonable period so that he can make a
representation for its upgradation. This in our opinion is the correct legal
position even though there may be no rule/G.O. requiring communication
of the entry, or even if there is a rule/G.O. prohibiting it, because the
principle of non-arbitrariness in State action as envisaged by Article 14 of
the Constitution in our opinion requires such communication. Article 14
will override all rules or government orders.
xxx xxx xxx
41. In our opinion, non-communication of entries in the annual
confidential report of a public servant, whether he is in civil, judicial,
police or any other service (other than the military), certainly has civil
consequences because it may affect his chances for promotion or get other
benefits (as already discussed above). Hence, such non-communication
would be arbitrary, and as such violative of Article 14 of the Constitution.
xxx xxx xxx
43. We are informed that the appellant has already retired from service.
However, if his representation for upgradation of the “good” entry is
allowed, he may benefit in his pension and get some arrears. Hence we
direct that the “good” entry of 1993-1994 be communicated to the
appellant forthwith and he should be permitted to make a representation
against the same praying for its upgradation. If the upgradation is
allowed, the appellant should be considered forthwith for promotion as
Superintending Engineer retrospectively and if he is promoted he will get
the benefit of higher pension and the balance of arrears of pay along with
8% per annum interest.”

26. In Sukhdev Singh v. Union of India and Others, (2013) 9 SCC 566,
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the Supreme Court reiterated the principles elucidated in Dev Dutt (supra)
and the following passages need to be highlighted:-
“6. We are in complete agreement with the view in Dev Dutt [Dev
Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771]
particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the
same.
7. A three-Judge Bench of this Court in Abhijit Ghosh
Dastidar v. Union of India [(2009) 16 SCC 146 : (2010) 1 SCC (L&S)
959] followed Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 :
(2008) 2 SCC (L&S) 771] . In para 8 of the Report this Court with
reference to the case under consideration held as under: (Abhijit Ghosh
Dastidar case [(2009) 16 SCC 146 : (2010) 1 SCC (L&S) 959] , SCC p.
148)
“8. Coming to the second aspect, that though the benchmark ‘very
good’ is required for being considered for promotion, admittedly the
entry of ‘good’ was not communicated to the appellant. The entry of
‘good’ should have been communicated to him as he was having ‘very
good’ in the previous year. In those circumstances, in our opinion,
non-communication of entries in the ACR of a public servant whether
he is in civil, judicial, police or any other service (other than the
armed forces), it has civil consequences because it may affect his
chances for promotion or getting other benefits. Hence, such non-
communication would be arbitrary, and as such violative of Article 14
of the Constitution. The same view has been reiterated in the
abovereferred decision (Dev Dutt case [Dev Dutt v. Union of India,
(2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] , SCC p. 738, para 41)
relied on by the appellant. Therefore, the entries ‘good’ if at all
granted to the appellant, the same should not have been taken into
consideration for being considered for promotion to the higher grade.
The respondent has no case that the appellant had ever been informed
of the nature of the grading given to him.”
8. In our opinion, the view taken in Dev Dutt [Dev Dutt v. Union of
India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] that every entry in
ACR of a public servant must be communicated to him/her within a
reasonable period is legally sound and helps in achieving threefold
objectives. First, the communication of every entry in the ACR to a public
servant helps him/her to work harder and achieve more that helps him in
improving his work and give better results. Second and equally important,
on being made aware of the entry in the ACR, the public servant may feel
dissatisfied with the same. Communication of the entry enables him/her to
make representation for upgradation of the remarks entered in the ACR.
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Third, communication of every entry in the ACR brings transparency in
recording the remarks relating to a public servant and the system becomes
more conforming to the principles of natural justice. We, accordingly, hold
that every entry in ACR—poor, fair, average, good or very good—must be
communicated to him/her within a reasonable period.”

27. A Division Bench of this Court in UOI & Anr. v. V.S. Arora & Ors.,
2012 SCC OnLine Del 3193 , held as follows:-
“13. Analyzing the above extracted portion from the said decision
in Abhijit Ghosh Dastidar (supra), we find that the Supreme Court had
affirmed the decision in Dev Dutt (supra), when it observed that - “the
same view has been reiterated in the above referred decision relied upon
by the appellant”. The above referred decision related to Dev
Dutt (supra). The principle that was culled out by Abhijit Ghosh
Dastidar (supra) from the decision in Dev Dutt (supra) was that non-
communication of an ACR would be arbitrary and would be violative of
Article 14 of the Constitution. The reasons for this were that the non-
communication of an entry of an ACR of a public servant has civil
consequences because it could affect his chances for promotion or to
receive any other benefits.
14. However, the Supreme Court in Abhijit Ghosh Dastidar (supra)
went further and observed categorically that, therefore, the entries
“good”, if at all granted to the appellant, ought not to have been taken
into consideration for being considered for promotion to the higher grade.
What this meant was that the below benchmark ACRs, which had not been
communicated to an employee, ought not to be taken into consideration for
the purposes of considering the promotion of that employee to a higher
grade. We must also distinguish between the stage when ACRs are written
and the stage when they are considered by the DPC. What Dev
Dutt (supra) and, indeed, Abhijit Ghosh Dastidar (supra) hold in unison is
that the ACRs must be communicated to the concerned employee/officer
soon after it is written. Beucase, its non-communication is contrary to the
provisions of article 14 of the Constitution. But, this is at the stage when
the ACRs are recorded or shortly thereafter. The objective of
communicating the ACRs is two-fold. In the first place, as an element of
natural justice, the officer concerned gets an opportunity of representing
against the ACR before it is too late. Secondly, it also informs and warns
the officer concerned that his performance is not upto the mark so that he
may improve himself in the next year. However, at the stage of the DPC,
the ACRs already stand crystallized and their communication then may not
serve any fruitful purpose apart from informing the concerned
employee/officer and, perhaps, enabling him to represent against it. But,
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the second aspect of improvement is lost. Consequently, at the stage of the
DPC meeting the practical approach would be to not consider the
uncommunicated ACRs as held in Abhijit Ghosh Dastidar (supra).
15. It is further to be noted that the directions given by the Supreme
Court in the subsequent paragraphs, that is, in paragraph 5 of the said
decision were in respect of the particular case before the Supreme Court
and the Supreme Court had merely directed that as the appellant therein
had retired from service, he would not be entitled to any pay or allowance
for the period for which he had not worked in the Higher Administrative
Grade. However, it had directed that his promotion would be retrospective
with effect from 28.08.2000 and that should be considered for the benefit
of re-fixation of his pension and retiral benefits and other benefits as per
rules. We are not going by the specific directions given by the Supreme
Court in the facts of that case, but by the general principles of law
declared by the Supreme Court in the earlier portion of the said decision
which is set out in paragraph 4 of the same. The Supreme Court did two
things. First of all, it affirmed the view taken by Dev Dutt (supra) to the
extent that noncommunication of an ACR would be arbitrary and would be
violative of Article 14 of the Constitution. Secondly, it concluded that such
entries, which are not communicated, should not be taken into
consideration for being considered for promotion to the higher grade.
Thus, while Dev Dutt (supra) had been affirmed by the Supreme Court
in Abhijit Ghosh Dastidar (supra) on the first aspect, as regards what has
to be done with a noncommunicated below benchmark ACR, the Supreme
Court in Abhijit Ghosh Dastidar (supra) took the view that such an ACR
ought not to be considered.”

28. Recently, this Court in Manish Gupta v. UTI Infrastructure
Technology and Services Limited and Another, 2022 SCC OnLine Del
2752, following the principles laid down in the aforementioned judgments,
emphasized that there was an obligation on the Respondent therein to
communicate the ACRs which had impacted the overall marks awarded to
the Petitioners therein as this was also a case where the promotion criteria
for the post of Assistant Vice President was based on weightage of marks
and out of a total of 100 marks, 40 marks were allocated towards APARs.
29. In view of the aforesaid, there is no gainsaying that Respondents
ought to have communicated the ACRs of the Petitioners which had
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‘Average’ gradings, before they were considered for promotions to the post
of Deputy Managers (Technical) by the DPC convened on 08.08.2012. As
noted above, the criteria for promotion is based on weightage of marks
wherein 45 out of total 80 marks are for PAR Assessment and a minimum of
60 marks are required for promotion. It is an undisputed fact that cases of
the Petitioners for promotion were considered in the DPC convened on
08.08.2012. How the ACRs with ‘Average’ gradings have impacted the
numerical score under PAR Assessment and consequently the promotions of
the Petitioners at par with their juniors, is demonstrable from the assessment
sheet, placed on record, which is scanned and placed below, for the ease of
reference:-
Extended Assessment sheet for the post of Dy. Manager (T)

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30. For a better appreciation of how the uncommunicated ACRs
considered by the DPC led to the Petitioners being declared UNFIT, the
following two tables have been drawn up:-
TABLE-I (First Consideration)

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with the petition and reflect that Petitioners were considered for promotion
to the post of Deputy Manager (Technical) along with their juniors but
were declared UNFIT as they were unable to score minimum 60 marks out
of 80 and this was due to low scores under PAR Assessment resulting
from ‘Average’ gradings in some of the ACRs in the reckonable
profile, considered by the DPC. In the same DPC, they were considered for
the successive years and with a fresh input of next ACR(s) and were
declared FIT but this resulted in loss of seniority as promotions were
prospective.
32. It is, therefore, palpably clear that consideration of non-communicated
ACRs with ‘Average’ gradings by the DPC had adversely impacted the
Petitioners but the second error which was committed by IPGCL was that
even after upgrading the ‘Average’ ACRs, no review DPC was held to give
effect to the upgradation. The reason why IPGCL did not convene a review
DPC to give effect to the upgradation is captured in its amended counter
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affidavit dated 26.07.2023 as follows and to say the least, is completely
untenable in law:-
“3. That since the OM dated 14th May. 2009 and other OMs related
thereto issued by the DOPT were not automatically applicable to the
employees of the respondent Companies, there was need to adopt the same
and made them applicable. Accordingly, the said OMs were adopted by
the Board on 20.09.2013 and were made applicable to the respondent
companies w.e.f the current APAR period i.e. 2012-2013. In view thereof,
the aforesaid OMs, to the extent adopted, would be applicable to and
binding on the respondent companies w.e.f. the date the same were
adopted and made applicable to the respondent companies and not w.e.f.
the dates of the OMs.
4. That some of the Deputy Managers (Technical) including petitioner
whose seniority was affected during promotion to the post of DM(T) due to
‘Average’ PAR ratingsmade representations and requested for
review/upgradation of past PAR’s rating in the light of the Hon'ble Apex
Court judgment in Dev Dutt Vs Union of India & Ors. decided on
12.05.2008, AIR 2008 SC 2513. In consideration of the aforesaid
representations and the judgment of the Hon’ble Apex Com1 in Dev Dutt
case (supra) and GOI orders providing for communication of below
benchmark rating. a proposal for putting in place a "Procedure for
dealing with cases of deemed adverse entry in APAR’ was placed before
the Board of the respondent companies (IPGCL/PPCL) in the meeting held
on 20.09.2013 wherein following resolution was passed:-
“Resolved That the approval of the Board of Directors be and is
hereby accorded to the following:-
th
i)adoption of DOPT OM No. 21011/I/2005-Estt(A)(PT-II), dated 14
May 2009 regarding maintenance & preparation of Annual
Performance appraisal Reports-communication of all entries for
fairness and transparency in public administration with effect from
current APAR period i.e. 2012-13 (as per the proposal placed before
the Board) as well as of other OMs of DOPT issued in this regard
from time to time;
ii) constitution of a Moderation Committee consisting of all
Functional Directors and Chaired by Managing Director to consider
the representations pertaining to APARs of periods prior to 2008-
2009(only of reckonable periods}, for review of ratings of deemed
adverse nature(Average & Below Average) where the final rating
has been done by Managing Director in his individual capacity or as
Chairman of Moderation committee;
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iii) xxxxxx
Copies of the extracts of the Minutes of Meeting dated 20.09.2013 of
the respondent companies (IPGCL& PPCL) are annexed as
Annexure-R/1(colly).
5. That, the resolution of the Board dated 20.09.2013 as aforesaid would
reveal that the procedure for dealing with the cases of deemed adverse
entry in AP AR was put in place, in the respondent companies in terms of
the OM of DOPT dated 14th May. 2009 which was specifically adopted on
20.09.2013 and the same was made applicable to respondent companies
w.e.f. current APAR period i.e. 2012-2013.The clause 2(v) of the OM
dated· 14th May. 2009. would further reveal that the new system of
communicating the entries in the AP AR was applicable prospectively only
with effect from the reporting period 2008-09 which was to be initiated
after 1st April,2009. Copy of the aforesaid OM of DOPT dated 14th May.
2009 is annexed as Annexure-R/2 .
6. That the procedure for dealing with the deemed adverse entry in AP ARs
as put in place by the Board vide its resolution dated 20.09.20 13 would
further reveal that the Moderation Committee constituted thereby was
given mandate to review/up-grade the AP ARs for the 'reckonable periods'
only i.e. APARs relevant for future DPCs. Therefore, in terms of the
aforesaid procedure, the AP ARs rating which were already considered by
the past DPCs (held prior to 20.09.2013) would not be of reckonable
periods and as such the Moderation Committee had no mandate to
review/up-grade the deemed adverse nature (Average & Below Average)
of APARs rating, already considered by the past DPCs.
7. That it is further submitted, the aforesaid procedure for dealing with the
deemed adverse entry in APAR as put in place by the Board vide its
decision dated 20.09.2013, in respect of the review of APARs rating of
reckonable periods only i.e. APARs relevant for future DPC only, is in
conformity with the guidelines issued by the DOPT in this regard vide OM
dated 13.04.2010. The said guideline of DOPT would be applicable to the
respondent companies, however, in terms of the Board decision dated
20.09.2013 and as such its applicability to respondent companies would be
w.e.f. the date of the Board resolution i.e. 20.09.2013 and not w.e.f. the
date of OM i.e. 13.04.2010. In that view of the matter, the future DPC, in
the context, would mean DPC to be held post 20.09.2013 i.e. decision of
the Board and not post 13.04.2010 i.e. date of OM. Copy of the aforesaid
OM of DOPT dated 13.04.2010 is annexed as Annexure P-24, page 169
with petition.
8. That in the instant case, Moderation Committee acting under the
mandate of the Board decision dated 20.09.2013, reviewed the petitioner’s
APAR rating for the period 2004-2005 (21.09.2004-31.03.2005) and
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upgraded the same from ‘Average’ to ‘Good’ in its meeting held in August,
2015. In the wake of the aforesaid upgradation, the petitioner represented
for restoration of his seniority. The said representation was considered by
the Committee of Functional Directors, in its meeting held on 17.12.20 15,
while finalization of the combined list of seniority for the posts of
AM(T)/DM(T), Manager(T) &AM(FIN) and recommended that the benefit
of the aforesaid upgradation cannot be given effect to, for the reasons as
recorded in the minutes of meeting dated 17.12.2015. Copy of the Minutes
of meeting dated 17.12.2015 is annexed with petition as Annexure P-18
(Pages 111-115). The aforesaid recommendation is reproduced as under:-
"The APARs that has been reviewed and upgraded by the
Moderation Committee has already been considered in the DPC for
promotion to the post of Deputy Manager(T) held in the year 2012.
As such as per DOPT guidelines regarding review of APAR as well
the Resolution passed by BOD of IPGCL/PPCL, the APARs of
adverse ratings should be reviewed for future DPCs only (APARs of
reckonable period).
The Committee deliberated on the different aspect of the
representation as well as DOPT guidelines and found it not tenable
to restore the seniority of DM(T)s whose date of promotion was
extended due to adverse PAR ratings. Further the Committee felt
that restoring the seniority after up-gradation of APARs which are
already been considered in past DPCs will open a Pandora box of
more such representations which in turn will make the situation
complex for the Management.
Accordingly, the Committee found no merit in the representations
for restoration of seniority and the changed seniority list circulated
as provisional seniority list for the post of AM(T)IDM(T).””

33. Broadly understood, the stand of IPGCL is that since the DoPT O.M.
dated 14.05.2009 was adopted on 20.09.2013, the review of APARs of the
Petitioners was only for the purpose of future DPCs and that restoration of
seniority after upgradation of APARs for those who were already considered
in past DPCs, will open a pandora box of more such representations, leading
to a complex situation for the Management. This stand cannot be sustained
in law for more than one reason.
34. Firstly, if after upgradation of the ACRs, review DPC is not held, the
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whole purpose of upgradation is lost and Petitioners would continue to
remain juniors to their erstwhile juniors. Secondly, this stand overlooks the
observations of the Supreme Court in Dev Dutt (supra), wherein it was
directed that if the ACR was upgraded, Appellant would be considered for
promotion as Superintending Engineer retrospectively. Relevant paragraph
is as follows:-
“ 43 . We are informed that the appellant has already retired from service.
However, if his representation for upgradation of the “good” entry is
allowed, he may benefit in his pension and get some arrears. Hence we
direct that the “good” entry of 1993-1994 be communicated to the
appellant forthwith and he should be permitted to make a representation
against the same praying for its upgradation. If the upgradation is
allowed, the appellant should be considered forthwith for promotion as
Superintending Engineer retrospectively and if he is promoted he will get
the benefit of higher pension and the balance of arrears of pay along with
8% per annum interest.”


35. The same question arose before the Division Bench of this Court in
Guriqbal Singh v. Union of India and Another, 2024 SCC OnLine Del
2353, where pursuant to DPC held on 15.03.2010, an order was issued by
the Respondents therein promoting juniors of the Petitioner to the rank of
Commandant w.e.f. 01.07.2010 and he was superseded and became junior.
On representation by the Petitioner, his ‘below benchmark’ ACRs for the
years 2005-06 and 2007-08 were upgraded and he was considered by the
DPC and promoted w.e.f. 01.06.2011. The grievance of the Petitioner was
that if the adverse ACRs were communicated to him well-in time before the
first DPC, he would not have suffered supersession and therefore after
upgradation, review DPC should be convened to promote him to the rank of
Commandant with seniority at par with his juniors i.e. w.e.f. 01.07.2010.
Contention of the Respondents was that the applicable DoPT O.M. dated
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13.04.2010 only provided for prospective promotion i.e. upgraded ACRs
were to be considered by future DPCs only and did not apply retrospectively
enabling the Respondents to hold a review DPC.
36. In paragraph 25 of the judgment, the Division Bench captured the
short issue arising for consideration whether the Petitioner was entitled to
promotion/seniority on the post of Commandant w.e.f. 01.07.2010 when his
juniors were promoted. Referring to the DoPT O.M. dated 14.05.2009 and
the judgments of the Supreme Court in Dev Dutt (supra) and others, the
Division Bench observed and held as follows:-
“25. Having heard the learned counsel for the parties, the short issue
which arises for consideration is whether the petitioner is entitled to
promotion/seniority on the post of Commandant w.e.f. July 1, 2010 when
officers junior to him were granted promotion.
xxx xxx xxx
27. There is no dispute that, on a representation made by the petitioner,
the below benchmark gradings were upgraded as ‘Very Good’ and ‘Good’
respectively. In fact, his case for promotion to the post of Commandant
was also considered and he was granted promotion to the post of
Commandant for the vacancy year 2011-2012.
28. The justification given by the respondents for rejecting the request in
the impugned order dated February 12, 2015, is the following:
“In this connection, I am directed to inform that Shri Guriqbal Singh,
then 2IC (Now Comdt) was assessed as ‘Unfit’ for promotion to the
rank of Comdt by the DPC held on 15.03.2010 due to his confidential
record of service. Further, in accordance to DoPSsT's OM dated
13.04.2010, below bench mark ACRs for the years 2005-2006 and
2007-2008 were communicated to the officer and subsequently
upgraded for ‘Good’ to Very Good’ and Average’ to ‘Good’
respectively. Though, the ACRs of the officer for the years 2005-2006
and 2007-2008 were upgraded from ‘Good’ to ‘Very Good’ and
Average’ to ‘Good’ respectively, but his case for promotion to the
rank of Commandant w.r.to DPC dated 15.03.2010 cannot be
reviewed as D0P85T OM dated 13.04.2010 clearly states that it would
be applicable for future DPCs only. In this connection FHQ Pers Dte
(Confd Section) letter No. A-28012/14/2010/CC/Pers/BSF/5328-5627
dated 10.12.2010 refers.”
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29. In substance, it is the case of the respondents that, in view of the OM
dated April 13, 2010 of the DoP&T which states, prior to reporting period
2008-2009, only adverse remarks in the ACR had to be communicated to
the concerned officer for representation but it has been decided that if an
employee is to be considered for promotion in future DPCs and his ACRs
prior to the period 2008-2009 which would be reckonable for assessment
of his fitness in such future DPCs contain final gradings which are below
benchmark for his next promotion before such ACRs are placed before the
DPC, concerned employee will be given a copy of relevant ACR for his
representation to be made within 15 days of such communication and to
consider the representation objectively and in case of upgradation of final
grading in the APAR, specific reasons be also given in the order of the
competent authority.
30. The stand of the respondents is, since the ACRs of the petitioner were
of the years 2005-2006 and 2007-2008 prior to 2008-2009 as is
contemplated in the OM dated April 13, 2010, his promotion to the post of
Commandant with respect to DPC dated March 15, 2010 cannot be
reviewed being prior in point of time.
31. In the present case, the ACRs being prior to 2008-2009, i.e., of the
year 2005-2006 and 2007-2008, the same being below benchmark, they
were communicated to the petitioner. In fact, against that he made a
representation as well. On representation, the gradings in the ACRs have
been upgradaded. But in the DPC dated March 15, 2010 whereby the case
of the petitioner was considered did not review the upgraded ACRs of
2005-2006 and 2007-2008 and rejected only on the ground that OM dated
April 13, 2010 contemplates future DPC. In other words, the DPC in
which the petitioner was not found fit was dated March 15, 2010, whereas
the OM dated April 13, 2010 contemplates the DPCs held after April 13,
2010 need to consider the upgraded ACRs. This stand of the respondents is
not convincing/appealing for the reason that the below benchmark ACRs
were communicated to the petitioner and the same have been upgraded.
Otherwise, we find no reason to communicate the below benchmark ACR's
to the petitioner, if upgradation of the gradings was not to be acted upon.
Having communicated the same, if they have been upgraded, then the
upgraded ACRs need to be considered by convening a Review DPC,
otherwise, it is anomalous despite not having below benchmark ACR, the
petitioner is being denied promotion.
32. The plea of the respondents that only future DPC shall consider the
upgraded ACRs, is unsustainable. We agree with the submission of Dr.
Hooda that, in view of the judgment of the Supreme Court in the case
of Dev Dutt (supra), which is of the year 2008, specifically contemplates
that, if on a representation the ACRs grading are upgraded, then the case
of such an employee need to be considered by review DPC, paragraph 43
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of which reads as under:
“43. We are informed that the appellant has already retired from
service. However, if his representation for upgradation of the “good”
entry is allowed, he may benefit in his pension and get some arrears.
Hence we direct that the “good” entry of 1993-1994 be communicated
to the appellant forthwith and he should be permitted to make a
representation against the same praying for its upgradation. If the
upgradation is allowed, the appellant should be considered forthwith
for promotion as Superintending Engineer retrospectively and if he is
promoted he will get the benefit of higher pension and the balance of
arrears of pay along with 8% per annum interest.”
33. The ratio of the judgment is squarely applicable to the case of the
petitioner inasmuch as the ACRs having been upgraded, the case of the
petitioner need to be considered through the review DPC for promotion
from the date his immediate junior have been promoted as Commandant.
34. The petitioner has relied upon the case of the one Lala Krishan Kumar
Lal to state that, on the upgrading the ACR, the review DPC was held for
considering Lala Krishan Kumar Lal case for promotion to the next higher
post, retrospectively. The justification given by the respondents is that the
ACR of Lala Krishan Kumar Lal was of the year 2008-2009, whereas the
ACRs of the petitioner were of the years 2005-2006 and 2007-2008 and
there is no provision for communication of ACRs of the period prior to
2008-2009. But this stand of the respondents is overlooking the fact that,
when the DPC was held on March 15, 2010, the judgment of Dev
Dutt (Supra) was already holding the field. The respondents were required
to communicate the below benchmark ACRs to the petitioner to enable him
to submit a representation and if the gradings are upgraded, then to hold
review DPC. So, in that sense, they cannot rely upon the OM dated April
13, 2010 to state that DPCs after April 13, 2010 would consider the below
benchmark ACRs, which have been later upgraded on the representation
made by a government employee. It is to state that, Lala Krishan Kumar
Lal being junior to the petitioner got the benefit of the OM dated April 10,
2013 and also promoted as Commandant whereas the petitioner whose
ACRs were of the year 2005-2006 and 2007-2008 and not 2008-2009, was
denied the benefit though his ACRs were upgraded, which according to us
is discriminatory, as such violative of Article 14 of the Constitution.
xxx xxx xxx
37. In view of our above discussion, we are of the view that the impugned
order dated February 12, 2015 is liable to be quashed. It is ordered
accordingly. The case of the petitioner shall be considered for promotion
to the post of Commandant w.e.f. the date his immediate junior was
promoted to the post of Commandant by taking into consideration the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:17.09.2024
20:21:30
W.P.(C) 12633/2018 Page 29 of 31

upgraded ACRs of the period 2005-2006 and 2007-2008 and other records
of the petitioner in accordance with law. If the petitioner is found fit for
promotion, his promotion shall relate back to the date of promotion of his
immediate junior. Though the same shall be on notional basis till the date
when the petitioner was actually promoted as a Commandant, however,
the petitioner shall be given actual and consequential benefits. The
respondent shall accordingly carry out the aforesaid exercise within a
period of eight weeks from today.”

37. It is luminously clear from the judgment of the Division Bench that
the plea of the Respondents that after upgradation of the ACRs for the
periods 2005-06 and 2007-08, the same could only be considered by future
DPCs was negated by the Division Bench and it was held that Petitioner was
entitled for a consideration by review DPC for promotion and if found fit for
promotion, his promotion shall relate back to the date of promotion of his
immediate junior. Case of the Petitioners herein is covered in all four
corners by the judgment of the Supreme Court in Dev Dutt (supra) and of
the Division Bench in Guriqbal Singh (supra) and it is not open to the
Respondents to take a stand that after upgradation of the ACRs in question,
they will be considered only in future DPCs.

38. The contention of the Respondents that since the DoPT O.M. dated
14.05.2009 was adopted only on 20.09.2013 and therefore review DPC
cannot be held is wholly misconceived and without merit and in the teeth of
the aforementioned judgments. It is an admitted position that Respondents
had constituted a Moderation Committee to consider representations
pertaining to APARs even prior to 2008-09 and therefore the relevance of
the date from which the DoPT O.M. was adopted is lost. In any case, the law
was declared by the Supreme Court in 2008 in Dev Dutt (supra) and a
direction was issued to promote the Petitioner retrospectively therein, if after
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:17.09.2024
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W.P.(C) 12633/2018 Page 30 of 31

communication of the impugned ACR for the period 1993-94, the same was
upgraded. The law is no longer res integra that on upgradation of the ACRs,
review DPC is to be held and consequential benefits are to be granted if the
employee concerned is found FIT for promotion based on the upgraded
ACR(s). [Ref. Dev Dutt (supra); Prabhu Dayal Khandelwal (supra); R.K.
Jibanlata Devi v. High Court of Manipur through its Registrar General
and Others, 2023 SCC OnLine SC 178; S.D. Dobhal (supra); Rajeev
Teotia (supra); and Guriqbal Singh (supra)].
39. Accordingly, these writ petitions are allowed setting aside the
impugned order dated 24.07.2018 whereby the representations of the
Petitioners seeking consideration by review DPC, based on upgraded ACRs
with consequential restoration of seniority, were rejected. It is directed that
cases of the Petitioners shall be considered for promotion to the post of
Deputy Manager (Technical) w.e.f. the date the immediate juniors were
promoted by taking into consideration the upgraded ACRs for the relevant
periods. Needless to state that if the Petitioners are found FIT for
promotions, their promotions shall relate back to the dates of promotions of
juniors considered in the DPC convened on 08.08.2012. If recommended for
promotions in the review DPC, Petitioners will be entitled to all
consequential benefits including seniority. The entire exercise shall be
carried out by the Respondents within a period of three months from today.
40. Writ petitions stand disposed of in the aforesaid terms.


JYOTI SINGH, J
AUGUST 27, 2024
B.S. Rohella/KA/shivam
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:17.09.2024
20:21:30
W.P.(C) 12633/2018 Page 31 of 31