DHIRAJ KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition, the petitioner is seeking directions from this Court for expunging the adverse remarks, namely, "Average" gradings in his ACRs for the period 1.4.2005 to 31.3.2006, from 1.4.2006 to 3.7.2006 and from 1.4.2008 to 31.3.2009, which were recorded without any performance enhancing counselling or communication, and for promoting him to the post of Executive Engineer with effect from 5.10.2011 when his juniors were promoted to that post. The material facts of the case may be briefly noticed at the outset. The petitioner was appointed on 27.10.2004 as Assistant Executive Engineer under the Border Roads Development Board under the Ministry of Road Transport and Highways and is presently working under the Commandant, 42, Border Road Task Force (BRTF). In compliance with the new Office Memorandum dated 6.10.2010, the petitioner was vide the letter dated 12.10.2010 communicated his ACRs for the said periods in question whereupon he for the first time came to learn those adverse entries against him. He had never been informed of such entries earlier nor was he given an opportunity to improve his ACRs by way of giving advice/instructions or warnings. It is the contention of the petitioner that since the grading "Average" is considered to be adverse and below the benchmark for promotion to the next higher post of Executive Engineer, he should have been communicated to him by the respondents. Aggrieved by this, he filed the representation dated 28.7.2011 before the respondent authorities for reviewing his case by upgrading the impugned ACRs. However, the respondent authority by the letter dated 11.10.2011 (Annexure-12) rejected the representation. It is against this rejection that this writ petition is now filed by the petitioner for appropriate relief.

(2.) The writ petition is opposed by the respondents by filing their affidavit-in-opposition. The averments made in the affidavit have been carefully perused by me. The main contentions of the respondents are that prior to Dev Dutt's case, there was no requirement to communicate the downgrading of ACR to an employee as long as the grading is at the level of above average, and it was after 13.4.2010 that a new guidelines of the Department of Personnel and Training came to be issued requiring that even below benchmark grading contained in the ACR should be communicated. According to the answering respondent, the Office memorandum dated 14.5.2009 requiring communication of the full APR (earlier known as ACR) including the overall grading and assessment of integrity to the concerned officer after the report is complete with the remarks of the Reviewing and Accepting Officer, etc. has been made with prospectively i.e. with effect from 1.4.2009. The ACR was not communicated to him earlier as there was no provision or guidelines in the government department to communicate below benchmark grading in the ACR to the officer concerned: the petitioner was, however, appropriately counseled from time to time and necessary endorsements were accordingly made in the relevant ACRs. It is asserted by the answering respondent that the ACRs of the petitioner for the following period was communicated to him vide the letter dated 12.10.10:

(3.) It is also the case of the answering respondent that all the cuttings/over-writings made in the marking has been duly authenticated by the Initiating officer. Further, the officer was counseled in writing vide RCC letter dated 22.7.2008 as recorded in para. 23(b) of the ACR. It is asserted. That the 10/RO/AO are the best judge to assess the performance of the petitioner for his actual performance of duties on the ground at different level under them during the period under report. The grading awarded by them are, therefore, fully justified. The representation made by the petitioner against below benchmark graded upon him were duly considered by the competent authority and rejected vide the communication dated 25.5.2011. The subsequent representation as already noted was rejected by the impugned order by observing that there is no provision for appeal/representation for second review once the first representation was already decided. Another representation 28.7.2011 submitted by the petitioner reconsidering his up-gradation was also duly considered by the competent authority, who, however, rejected the same vide the communication dated 14.10.2011. The answering respondent points out that the DPC for promotion from AEE (Civil) to grade of EE (Civil) for the vacancy year 2011-12 was held at Secretariat BRDB on 23.9.11 wherein 33 officers were recommended for promotion. As per the guidelines issued by the Department of Personnel & Training, the ACRs for the period from 2005-06 to 2009-10 were evaluated by the DPC to assess the suitability of the candidates. As per the Master Seniority List (MSL), the name of the petitioner was also included at Sl. No. 26 of the Eligibility List. The DPC, however, after considering his case in accordance with the applicable standing instructions, found him to be unfit for promotion. It is also pointed out by the answering respondents that the DPC for promotion from AEE (Civ) to EE (Civ) for the year 2012-2013 was held on 4.1.2013 wherein the name of the petitioner was also considered for the promotion with reference to his ACRs for the period from 2006-07 to 2010-11 and the standing instructions, but he was found unfit for the promotion. It is the contention of the answering respondent that the DPC, in terms of the said guidelines and the decision of the Apex Court in UOI & Anr. vs. S.K. Goel & Ors., 2007 14 SCC 641the DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidates being considered by it, for which the interference of the High Court is not called for. These are the sum and substance of the case of the respondents in defending the impugned decision. They, therefore, urge this Court to dismiss the writ petition, which is bereft of merit.