At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE K. VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE V.G. ARUN
For the Petitioner: P. Vijayakumar, ASG of India. For the Respondents: R1, M.A. Shafik, P.V. Saleem, Advocates.
K. Vinod Chandran, J.
1. A Group 'A' Central Service officer in the Indian Postal Service was before the Tribunal against the denial of promotion to Senior Administrative Grade [for short 'SAG'] in the vacancies arising in 2009-10; to which his juniors were promoted. The Tribunal had directed a review DPC to be conducted. He has since opted for voluntary retirement on 01.02.2012 while the Original Petition was pending before this Court. We also have to take note of the subsequent events after the disposal of the Original Application. We refer to the parties and the documents from the status in the OA.
2. The OA was allowed finding that grading made in the Annual Confidential Reports [for short 'ACR'], lower to that of the benchmark prescribed for promotion, was not properly communicated to the applicant. A review DPC constituted by the UPSC had overturned the finding of 'fit' by an earlier DPC. This review was made only for the reason of the entries in 2004-05 and 2005-06 though was 'good', on transporting the same into the assessment sheet was inadvertently shown as 'very good'. The denial of promotion was on the ground that the applicant did not achieve the benchmark of 'very good' in the two years referred above.
3. The Tribunal found that during a particular period, which assessment too was subject to consideration, there was a review carried out by the reviewing authority and the assessment of 'good' was upgraded to 'outstanding'. Relying on the decisions in Dev Dutt v. Union of India [(2008) 8 SCC 725] and Abhijit Ghosh Dastidar v. Union of India [CDJ 2008 SC 2359] the Tribunal held that the adverse entries with respect to the applicant's ACRs ought to have been communicated to the applicant. On the above reasoning, the Tribunal directed a review DPC to be conducted and the applicant granted promotion with effect from 12.02.2010, the date on which his immediate juniors were promoted assigning him seniority over the respondents 3 to 7 and granting him all other service benefits without arrears of pay and allowances.
4. We do not find any reason at all to interfere with the finding of the Tribunal. In fact, we have to notice that subsequent to the disposal of the OA on 19.07.2011, the official respondents, in consonance with Dev Dutt, communicated the adverse entries, upon which the applicant made representations. The representations were considered and by Exhibit R1(b) dated 15.07.2011 produced along with the counter affidavit dated 12.10.2018 in the OP (CAT), the ACRs were upgraded to 'very good'; thus satisfying the benchmark for promotion to SAG. Exhibit R1(d) dated 24.10.2011 was also issued granting non-functional up-gradation with effect from 21.02.2011.
5. Dev Dutt considered the aspect of non-communication of a positive assessment of 'good' when the benchmark for promotion is 'very good'; identical to the facts of this case. It was held that though the assessment of 'good' is positive in nature, it is in fact an adverse entry for reason of the prescription of benchmark of 'very good'. This resulted in eliminating the candidate from being considered for promotion. In fact, the learned Judges went further and held that every entry in the ACR has to be communicated to the employee without looking at whether it is adverse, prejudicial, below the benchmark and so on and so forth. A three-Judge Bench decision of the Hon'ble Supreme Court in Sukhdev Singh v. Union of India & Ors. [2013 KHC 4365] approved Dev Dutt and held that such communication of assessments in the ACRs serves three-fold objectives. The first of which is that it would motivate the public servant to work harder to achieve better assessment, the second enabling the employee to make a representation if dissatisfied with the assessment and the last, but not the least, ensuring transparency in drawing up the ACRS conforming to the principles of natural justice. Every entry, hence, was liable to be communicated to the employee within a reasonable period.
6. The official respondents had made an attempt before the Tribunal contending that the communication of the below bench mark entry in ACR has only prospective effect. We do not see such a declaration of prospective application having been made by the Hon'ble Supreme Court. Further, the Tribunal was perfectly right in following yet another judgment of the three-Judge Bench in Abhijit Ghosh Dastidar, which also approved of the declaration made in Dev Dutt.
7. Even without looking at the subsequent developments as noticed from the counter affidavit in the Original Petition, we are of the opinion that the order of the Tribunal has to be sustained. We reiterate that as of now all the assessments have been communicated and they have been upgraded by the authority considering the representations. The applicant satisfies the benchmark during the subject years. The applicant has been granted SAG with effect from 21.02.2011 as per Exhibit R1(d), which is not in consonance with the order of the Tribunal. The Tribunal specifically directed the review DPC to grant promotion with effect from 12.02.2010, if he is found fit. Exhibit R1(d) produced in the Original Pe
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tition clearly indicates that the applicant has been found fit. In such circumstances, there is no reason why his promotion should be restricted from 21.02.2011. Exhibit R1(d) insofar as the applicant is concerned shall have effect from 12.02.2010, the date on which his immediate junior was promoted. We make these observations only to avoid further litigation, which is also the necessary consequence of our rejecting the Original Petition sustaining the order of the Tribunal. Original Petition (CAT) is rejected, leaving the parties to suffer their respective costs.