Full Judgment Text
$~15 to 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
% Judgment dated 3 August, 2015
+ W.P.(C) 7193/2015
DIRECTOR GENERAL E.S.I.C ..... Petitioner
Through : Mr. Yakesh Anand, Mr. Murari Kumar
and Mr. Nimit Mathur, Advocates.
versus
DR. SATISH KUMAR AZAD & ANR ..... Respondents
Through : None.
+ W.P.(C) 7200/2015
DIRECTOR GENERAL E.S.I.C. ..... Petitioner
Through : Mr. Yakesh Anand, Mr. Murari Kumar
and Mr. Nimit Mathur, Advocates.
versus
DR. R.K. TARA & ANR ..... Respondents
Through : None.
+ W.P.(C) 7213/2015
DIRECTOR GENERAL E.S.I.C. ..... Petitioner
Through : Mr. Yakesh Anand, Mr. Murari Kumar
and Mr. Nimit Mathur, Advocates.
versus
BHAGAT AND ANR. ..... Respondents
Through : None.
+ W.P.(C) 7214/2015
DIRECTOR GENERAL E.S.I.C. AND ANR . ..... Petitioners
Through : Mr. Yakesh Anand, Mr. Murari Kumar
and Mr. Nimit Mathur, Advocates.
versus
PREM CHANDRA GUPTA ..... Respondents
Through : None.
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J ( ORAL )
1. Four writ petitions have been filed by the petitioners herein assailing
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 1 of 9
the common Order dated 17.07.2013 passed by the Central
Administrative Tribunal.
2. The facts, which gave rise to the filing of the OA and as noticed by the
learned Tribunal, are as under :
(i) “Issue in all these Original Applications being the same, they
are being decided by this common order. According to the
Applicants, they have been denied promotion illegally
taking into consideration of their Annual Confidential
Reports (“ACRs” for short) which were below benchmark
without communicating them and without giving them an
opportunity for making representations for their up-
gradation within a reasonable time and thus violating the
principles of nature justice.
(ii) The only difference in these cases is that while all the
Applicants except Dr. Prem Chandra Gupta in OA No.
3067/2011 were furnished with copies of the relevant ACRs
which were below the benchmark at a belated stage after
denying them the promotions and their representations
were rejected, in the case of Dr. Gupta, he obtained his
below the benchmark ACRs under the Right to Information
Act, 2005 and made a representation but the same was also
rejected.
(iii) All the Applicants are working as Doctors in the Employees
State Insurance Corporation (“ESIC” for short). The
Government, while accepting the recommendations of the
th
6 Pay Commission, resolved in para 12 of the Resolution
No. 1/1/2008-IC dated 29.08.2008 that the Dynamic
Assured Career Progression Scheme (“DACPS” for short)
for Doctors has to be extended up to Senior Administrative
Grade (“SAG” for short) (Grade Pay of Rs.10000/- PB-4)
to all Medical Doctors without linkage to vacancies
whether they belong to the organized services or holding
isolated posts. The said Scheme was duly adopted by the
ESIC in toto. Thereafter, they prepared a list of eligible
Medical Officers in the Non Functional Selection Grade
(“NFSG” for short) working as Deputy Medical
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 2 of 9
Commissioner/Medical Superintendent/Director (Medical)
Pay Band-4 with Grade Pay of Rs.8700/- including the
Applicants for promotion to SAG Grade in Pay Band-4 with
Grade Pay of Rs.10,000/- on regular basis on 18.12.2008
and vide their letter dated 16.01.2009, they forwarded the
same to Regional Head to verify the period(s) of extra
ordinary leave, if any, availed by them otherwise than on
medical grounds/study purpose during the period of service
with ESIC so that their cases may be placed before the
Departmental Promotion Committee (“DPC” for short) in
its next meeting. Thereafter, the DPC held its meeting on
18.02.2009 and considered the last 5 ACRs of the eligible
candidates including those of the Applicants. The DPC
fixed the benchmark “Very Good” for the purpose of
placing the otherwise eligible Medical Officer of NFSF in
the SAG Scale Pay Band-4. The Respondents-ESIC,
thereafter, issued Office Order No. 72 of 2009 dated
20.02.2009 containing the list of such Medical Officer who
have been granted the said scale. According to the
Applicants, they were shocked to see that their names did
not figure in the aforesaid list despite the fact that all of
them fulfilled all the requisite qualifications. They have
also stated that they had unblemished record throughout
their service and no adverse entries have ever been
communicated to them. However, through unofficial
sources they came to know that some of the ACRs
considered by the DPC were below the benchmark of “Very
Good”. They have, therefore, made
representations/applications under Right to Information
Act, 2005 and obtained copies of those ACRs which were
graded below the benchmark. Thereafter, they made
number of representations to the Respondent-ESIC stating
that the uncommunicated ACRs which were below
benchmark should not have been taken into consideration
for granting them the SAG Grade. They have also pointed
out that some of the similarly placed persons who were
denied promotion to SAG grade on the same ground of
uncommunicated below benchmark ACRs, have been
subsequently granted promotion to the said scale. In this
regard, they have cited the cases of Dr. S. C. Jain, Dr.
Nirmal Singh and Dr. Krishna Awatar Gupta. They have,
therefore, requested the Respondents to consider their
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 3 of 9
cases also sympathetically and grant them promotion to
SAG grade from the due dates.
(iv) However, the Respondents informed the Applicants that
their requests for upgradation of gradings were not
acceded to by the competent authority. They have also
informed that the review DPC cannot be convened ignoring
their below benchmark ACRs. It is in the above facts and
circumstances that the Applicants have approached this
Tribunal through these Original Applications seeking a
direction to the Respondents – ESIC to place them in the
SAG Scale in Pay Band-4 with Grade Pay of Rs.10,000/-
from due dates, with all consequential benefits.
3. By the impugned order dated 17.7.2013 the Original Applications filed
by the petitioners (respondents herein) were allowed. The respondents
before the Central Administrative Tribunal had placed heavy reliance
on the decision of the Central Administrative Tribunal in the case of
Dr. (Mrs.) Nirmal Singh Vs. Union of India through Secretary,
Ministry of Labour and Another passed in OA No. 43/2010 wherein
observations of various judgments of the Hon’ble Supreme Court was
noticed including the judgment rendered in the case of Dev Dutt v.
Union of India & Ors. , reported at 2008 (8) SCC 725. The Tribunal
also relied upon the decisions of the Hon’ble Supreme Court of India
and Hon’ble High Court of Delhi and allowed the OAs.
4. It is contended by counsel for the petitioners that the Tribunal has failed
to consider the facts of each case and has passed the impugned order in
a mechanical manner ignoring the benchmarks of ACRs of the
respondents.
5. It is also contended that the Tribunal has failed to take into
consideration the judgment of the Hon’ble Supreme Court of India in
the case of Sukhdev Singh Vs. Union of India and Ors. reported in
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 4 of 9
(2013) 9 SCC 573 where a bench of two Judges has referred the matter
to a Larger Bench and the Tribunal has also failed to consider that only
if the representation for upgradation is allowed, should a Review DPC
be held.
6. It has also been submitted that promotion or a right to get higher Grade
Pay should be based on an employee’s performance and not merely be
based on a lapse on the part of the authorities to communicate a below
benchmark grading in time.
7. It is also contended that the learned Tribunal failed to consider that the
Hon’ble Supreme Court in the case of Satya Narain Shukla Vs. Union
of India & Ors. reported in (2006) 9 SCC 69 has held that procedure
for communication of ACRs cannot be questioned by an employee and
neither the Courts should interfere as it is the function of Government.
Para 29 of the said judgment which has been relied upon reads as
follows :
“The Respondent also argued that the remarks made in the
ACR were not communicated to him. It was also urged by
the Respondent that this Court should direct the authorities
to streamline the whole procedure so that even remarks like
“good” or “very good” made in ACRs should be made
compulsorily communicable to the officers concerned so that
an officer may not lose his change of empanelment at a
subsequent point of his service. In our view, it is not our
function to issue such directions. It is for the Government to
consider how to streamline the procedure for selection. We
can only examine if the procedure for selection as adopted by
the Government is unconstitutional or otherwise illegal or
vitiated by arbitrariness and mala fides”.
8. It is also contended that the learned Tribunal has failed to take into
consideration the decision rendered by the Hon’ble Supreme Court of
India in the case of K. M. Mishra Vs. Central Bank of India & Anr.
reported in (2008) 9 SCC 120.
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 5 of 9
9. It is also the contention of counsel for the petitioner that Dev Dutt v.
Union of India & Ors. , reported at 2008 (8) SCC 725, cannot be relied
upon when the Supreme Court has taken note of the apparent conflict
between Union of India Vs. A. K. Goel and Dev Dutt and also
decisions of Satya Narain Shukla Vs. UOI (2006) 9 SCC 69 and K. M.
Mishra Vs. Central Bank of India & Ors. (2008) 9 SCC 120.
10. We have heard the learned counsel for the petitioner and also carefully
examined the judgment passed by the Central Administrative Tribunal.
11. The facts which have led to the filing of the OA have been detailed
above. The issue at hand is whether the ACRs which were not
communicated to the respondents could have been relied upon by the
petitioners in the DPC which was held. It is not in dispute that prior to
the holding of the DPC i.e. on 18.02.2009, the ACRs were not
communicated to any of the respondents. Some of the respondents had
obtained the ACRs under the Right to Information Act, 2005 and
thereafter made representations but they were rejected.
12. The short question which comes up for consideration today is as to
whether the decision rendered in the case of Dev Dutt (supra) has put
the controversy at rest or not?
13. In our view, the issue, as to whether ACRs, which were not
communicated, can be relied upon while conducting the DPC and as to
whether every entry in ACR of a public servant must be communicated
to him within a reasonable period, stands well settled. In fact the
decision rendered in the case of Dev Dutt (supra) stands re-affirmed by
a three Judges Bench of the Hon’ble Supreme Court in the case of
Sukhdev Singh Vs. Union of India and Ors. reported in (2013) 9 SCC
566, paras 8 and 9 of which read as under :
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 6 of 9
“8. In our opinion, the view taken in Dev Dutt 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. 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.
9. The decisions of this Court in Satya Narain Shukla
v. Union of India and Ors. (2006) 9 SCC 69 and K.M.
Mishra v. Central Bank of India and Ors. (2008) 9 SCC 120
and the other decisions of this Court taking a contrary view
are declared to be not laying down a good law.”
14. Similar view has been expressed in the case of Prabhu Dayal
Khandelwal Vs. Chairman, UPSC & Ors. Civil Appeal Nos. 8006-
8007/2003 decided on 23.07.2015, paras 5 & 6 of which read as under :
5. In so far as the issue of non-consideration of the claim of
the Appellant is concerned, we are satisfied that the
proposition of law relevant for the controversy in hand, was
declared upon by this Court in Abhijit Ghosh Dastidar v.
Union of India and Ors. (2009) 16 SCC 146, wherein a
three-Judge Division Bench of this Court, held as under:
7. It is not in dispute that CAT, Patna Bench passed an
order recommending the authority not to rely on the
order of caution dated 22.09.1997 and the order of
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 7 of 9
adverse remarks dated 09.06.1998. In view of the said
order, one obstacle relating to his promotion goes.
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 Annual Confidential
Report 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 of 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
above referred decision [Dev Dutt v. Union of India
and Ors. (2008) 8 SCC 725] 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.
6. The aforesaid position of law has again been affirmed by this
Court in Sukhdev Singh v. Union of India and Ors. (2013) 9 SCC
566, wherein another three-Judge Division Bench of this Court, has
concluded as under:
8. In our opinion, the view taken in Dev Dutt 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
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 8 of 9
same. Communication of the entry enables him/her to
make representation for upgradation of the remarks
entered in the ACR. 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.”
15. In view of the fact that the Hon’ble Supreme Court has affirmed the
decision of Dev Dutt by a three Judges Bench in the case of Sukhdev
Singh (supra), reported in (2013) 9 SCC 566 and the case of Prabhu
Dayal Khandelwal v. Chairman, UPSC & Ors. Civil Appeal Nos.
8006-8007/2003 decided on 23.07.2015, we find that these present writ
petitions are without any merit. There is no infirmity in the order dated
17.07.2013 passed by the Central Administrative Tribunal. The same
are accordingly dismissed in limine .
CM.APPL 13214/2015(stay)in WP(C)7193/2015
CM.APPL 13227/2015(stay)in WP(C)7200/2015
CM.APPL 13241/2015(stay)in WP(C)7213/2015
CM.APPL 13243/2015(stay)in WP(C)7214/2015
16. The applications stand dismissed in view of the order passed in the
present writ petitions.
G. S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
AUGUST 03, 2015
sc/msr
W.P.(C) Nos. 7193/2015, 7200/2015, 7213/2015 & 7214/2015 Page 9 of 9