PANKAJ DIXIT Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. IH Saikia, learned counsel for the petitioner. Also heard Mr. H Gupta, learned Central Government Counsel, for the respondents.

(2.) The petitioner is a permanent resident of the state of Rajasthan and he was serving as an Executive Engineer (Civil) under the Border Roads Engineering Service in the General Reserve Engineering Force (GREF), 14 Border Roads Task Force under Project Vartak,C/o.99 APO, at the time when the writ petition was filed.

(3.) The essential facts necessary for deciding the matter is that the petitioner was initially appointed as an Assistant Executive Engineer (Civil) on 18/5/2002 in the General Reserve Engineering Force in Border Roads Engineering Service. The respondent Department had initiated the process for promotion to the post of Executive Engineer (Civil) from the feeder category of Assistant Executive Engineer (Civil) for the vacancy year 2010-11. The petitioner although eligible for being promoted to the next higher post from Assistant Executive Engineer (Civil) to the post of Executive Engineer (Civil), he was not promoted to the next higher post on the ground of having below benchmark grading (BBM) for the relevant years under consideration in his ACRs. According to the petitioner for promotion in the vacancy year of 2010-11 the relevant years under consideration are 2004-05, 2005-06,2006-07, 2007-08, 2008-09. According to the petitioner for the year 2004-05, his ACR gradings were 'partly good' and 'partly very good'. For the year 2007-08 and 2008-09, his ACR gradings were 'very good' and 'good' respectively. However, for the years 200506 and 2006-07 his ACR gradings were "average". According to the petitioner because of 2 (two) average gradings for the years 2005-06 and 2006-07 he was considered having below benchmark gradings and therefore, he was not considered for promotion. According to the petitioner, these 2 (two) gradings of 'average' for the years 2005-06 and 2006-07 were adverse remarks and therefore, were required to be communicated to the petitioner enabling him to represent before the higher authority before his case was considered for promotion by the Departmental Promotion Committee (DPC). At the time when the gradings of "average" was awarded before the matter being considered by the Departmental Promotion Committee (DPC), the respondent authorities did not communicate these gradings to the petitioner and therefore, he was deprived from filing appropriate representations before the authorities. There was no warning or no performance enhancing counseling, neither verbal nor written or any intimation was issued to the petitioner for enhancement of his performance for the same 2 (two) periods. Subsequently, the petitioner after having received the impugned ACRs filed representation on 20/7/2010, praying for upgradation of the below benchmark gradings received in the Annual Confidential Reports (ACRs) for the year 2005-06 and 2006-07. As the said representation was not considered, the petitioner filed a supplementary representation on 30/3/2011. The respondents, however, did not consider the claims of the petitioner and by order dtd. 25/11/2011 the claim of the petitioner was rejected. Subsequently, the DPC again considered the cases of eligible officers in its meetings held on 13/6/2011 and 23/9/2011 and thereafter, promotional orders were issued on 24/6/2011 and 5/10/2011.However, the case of the petitioner was not recommended for promotion because of the below benchmark gradings received in the ACR for the year 2005-06 and 2006-07. Being aggrieved, the petitioner filed an appeal dtd. 25/11/2011 before the authorities concerned. Subsequently, again on 4/1/2013, another DPC was held, however, the case of the petitioner was not recommended, even though some other similarly situated candidates having below benchmark gradings were recommended for promotion. According to the petitioner, the non-functional upgradation was due to the petitioner on 18/5/2009, but the same has been denied to the petitioner on account of having below benchmark gradings in the ACRs for the relevant years under consideration. Finally, by a meeting held on 20/11/2014, the DPC recommended the case of the petitioner for promotion and thereafter, the petitioner was finally promoted to the post of Executive Engineer (Civil) on 26/6/2015. The grievance of the petitioner is that in view of the law holding the field, where there is downgrading in the ACRs, the same are required to be communicated to the officer for representing before Higher Authorities well prior to his case being placed and considered by the DPC.It is submitted that uncommunicated adverse remarks in the ACRs cannot be taken into consideration by the DPC while considering the case of the petitioner for promotion.