UNION OF INDIA Vs. DHIRAJ KUMAR

JUDGEMENT

(1.) The claim for promotion to the next higher rank of Executive Engineer by interfering with the gradings in the Annual Confidential Reports of relevant periods was the subject matter in the related writ petition filed by the respondent herein Sri Dhiraj Kumar. At the relevant point of time, he was serving as an Assistant Executive Engineer (Civil) in the Border Roads Organisation (BRO). For the purpose of promotion to the rank of Executive Engineer, the bench mark in the gradings recorded in the Annual Confidential Reports (ACRs) of the preceding five years was required to be "Good". As promotion was due in the year 2011-2012, the Departmental Promotion Committee (DPC) sat on 05.10.2011 for filling up 33 vacancies in the post of Executive Engineer. Respondent's name was considered but the DPC found him unfit on the basis of his ACR gradings, which were below the bench mark. In the said exercise, few of his juniors were recommended and thereafter promoted. Another DPC was held on 4.1.2013 for the year 2012-2013 in which the respondent was again considered. Yet again, his candidature was rejected due to adverse entry in his ACRs. The relevant periods and respective gradings in his ACRs, as stated in the writ petition, are from (i) 1.4.2005 to 31.3.2006, where the gradings of the Reporting/Initiating Officer, Reviewing Officer and that of the Accepting Officer were recorded as "Good", "Average", "Good" respectively, (ii) 01.04.2006 to 03.07.2006, where respective gradings by the officers above were "Good", "Average", "Average", and (iii) 1.4.2008 to 31.3.2009, where the gradings were "Average", "Average", "Average" respectively.

(2.) Prior to the holding of the first DPC on 05.10.2011, the respondent was served with the letter dated 12.10.2010, enclosing therewith photocopies of the ACRs relating to the aforesaid three periods, containing the entries/gradings recorded therein. This letter of 12.10.2010 was issued in terms of the Office Memorandum dated 13.04.2010 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, where instructions were made that if an employee is to be considered for promotion in a future DPC and his ACRs for the period prior to 2008-2009, which would be reckonable for assessment of his fitness, contained final gradings which are below the bench mark for his next promotion, the concerned employee has to be given a copy of the relevant ACR for his representation before such ACRs are placed before the DPC. As the name of the respondent was being considered for promotion by the DPC against the vacancy year 2010-2011, the final gradings given by the Initiating Officer/Reviewing Officer/Accepting Officer in his ACRs for the three periods mentioned above, which were below the bench mark, were made available to him, enabling the respondent to make representation. Three separate representations against the respective years were submitted by the respondent under covering letter dated 06.12.2010. On consideration thereof, the representations were rejected as being devoid of any merits vide Memorandum dated 25.05.2011. Subsequent representations made on 28.07.2011 also stood rejected on 14.10.2011. Aggrieved, the respondent instituted the related WP(C) 202/2013 with prayer for quashing of the adverse remarks in his ACRs for the periods 01.04.2005 to 31.03.2006; 01.04.2006 to 03.07.2006 and 01.04.2008 to 31.03.2009. Prayer was also made for quashing of the Order dated 25.05.2011 whereby his Representation dated 06.12.2010 had been rejected and for direction to the appellants herein to consider his promotion to the post of Executive Engineer with effect from 05.10.2011 by constituting a review Departmental Promotion Committee.

(3.) In the backdrop of the facts of the case and on consideration of the law relating to the recording of ACRs, as decided by the Supreme Court in decisions referred to by the learned Single Judge, the writ petition was allowed by remanding the matter for fresh consideration of the case of the respondent for promotion to the post of Executive Engineer as of the year 2011-2012 by holding review DPC. The learned Single Judge directed that gradings given in the ACRs may not be taken into account by the review DPC and the suitability of the respondent be independently assessed on the basis of the observations made in the judgment and as per law. The gradings recorded in the ACRs for the period from 01.04.2006 to 03.07.2006 and 01.04.2008 to 31.03.2009, along with the Order dated 25.05.2011 were quashed. Aggrieved, the present appeal has been preferred by the Union of India and Others.