(W.P.(S)No.1646/2019) HIGH COURT OF CHHATTISGARH v. Union of India & Ors.

Bench of CAT, Delhi by order dated 12-3-2015, disposed of the said OA filed by the petitioner herein directing the respondents (therein) to hold a Review DPC treating the ACR for the year 2007-08 as no ACR and in place thereof to consider the ACR for the year 2002-03 and further directed that the DPC should also consider the ACR for the year 2006-07 as it is there on record and give specific finding as to how it has been treated. The order dated 12-3-2015 was subjected to review and was corrected in M.A.No.935/2015 by order dated 6-4-2015.

6. Before respondent No.2 could convene the Review DPC as per the order of the CAT, the representation of the petitioner against his grading in the ACR for the year 2005-06 was considered and it was upgraded as “Very Good” by order dated 21-5-2015 passed by the Chairman of the Central Ground Water Board – respondent No.3 herein being the competent authority for that purpose.

7. On receipt of proposal for Review DPC by respondent No.1 pursuant to the order of the CAT, respondent No.2 filed W.P. (C)No.1173/2016 in the High Court of Delhi challenging the order directing holding of Review DPC which was dismissed by that High Court on 12-2-2016 and thereafter, review petition was also filed before the CAT (Principal Bench), Delhi claiming review of order dated 12-3-2015 which was also (W.P.(S)No.1646/2019) dismissed by the CAT by its order dated 31-5-2016. However, despite that, respondent No.2 did not comply with the direction of the CAT and did not convene the meeting of the Review DPC even after lapse of one year leading to filing of Contempt Petition No.157/2016 by the petitioner herein which came up for hearing on 12-8-2016 before the CAT in which it was informed to the CAT by respondent No.2 that a Review DPC had already been convened on 2-8-2016 to consider the case of the petitioner and accordingly, recommendation has already been forwarded to the competent authority and in that view of the matter, the contempt case came to be closed by order dated 25-10-2016.

8. The Review DPC proceedings filed before this Court would show that the Review DPC in its meeting dated 2-8-2016 assessed the ACRs of the petitioner for the years 2003-04, 2004-05 & 2002-03 as “Very Good”, but for the years 2005- 06 & 2006-07, his ACRs were assessed as “Good” by the DPC and he has been held to be unfit for the promotional post of Superintending Engineer, which the Ministry of Water Resources, River Development and Ganga Rejuvenation – respondent No.1 herein, did not approve and expressed its disapproval to respondent No.2 by its memo dated 12-8- 2016 (Annexure P-4) holding that there is no consideration of the upgraded ACR of the petitioner for the year 2005-06 and further held that non-acceptance of final grading of 2006-07 and denial of opportunity of communication of the assessed (W.P.(S)No.1646/2019) below benchmark ACRs by the Review DPC would affect the career prospects of the individual and that would be against the principles of natural justice. However, the UPSC / respondent No.2 herein did not change its stand and advised respondents No.1 & 3 herein to refer the matter to the Department of Personnel & Training (DOPT) for final decision being nodal authority and thereafter, by memo dated 7-10- 2016 (Annexure R-7), ultimately, respondent No.1 did not refer the matter to the DOPT and accepted the recommendation of the Review DPC held on 2-8-2016 holding the petitioner unfit for the post of Superintending Engineer.

9. Meanwhile, the petitioner finding that respondent No.1 has accepted the recommendation of the UPSC finding him unfit for promotion on the post of Superintending Engineer, decided to question the proceeding dated 2-8-2016 for convening a fresh Review DPC and accordingly, filed O.A. No.187/2017 questioning that Review DPC proceeding before the CAT, Bench at Hyderabad, which was transferred to the Jabalpur Bench being re-registered as O.A.No.552/2018 and which has been dismissed by order dated 31-1-2019 holding as under: - (i) the issue involved in the present petition has already been determined by the CAT in contempt jurisdiction; (W.P.(S)No.1646/2019) (ii) representation for upgrading of ACR for the year 2005-06 was made on 22-12-2014, well after the original DPC dated 15-5-2014 considered the case of the petitioner, as such, the earlier ACR has attained finality; (iii) up-gradation has neither been done under any specific rule/ instructions on the subject nor as per the order of the competent court of law; (iv) ACR was upgraded by a non-speaking and un-reasoned order; (v) while upgrading ACR, previous entries have been retained in respect of certain vital aspects; and (vi) the DPC constituted by the UPSC did not accept the up- gradation of ACR for the year 2006-07 doubting that the reviewing authority has not given any reasons and justifications citing various reasons.

10. Finally, questioning and challenging the order passed by the CAT, the petitioner has filed this writ petition before this Court under Article 226/227 of the Constitution of India calling in question the DPC proceeding dated 2-8-2016 as well as the order of the CAT dated 31-1-2019 by which his original application has been dismissed holding inter alia that the Review DPC did not consider the ACR for the years 2005-06 & 2006-07 in accordance with law and the manner of upgrading and the manner of awarding “Very Good” has been questioned by the DPC constituted by the UPSC which (W.P.(S)No.1646/2019) is neither the province nor the authority of the UPSC to downgrade in the manner not contemplated by law and therefore it is arbitrary and liable to be set aside and the petitioner was entitled to be considered objectively and fairly by the Review DPC for the promotional post of Superintending Engineer, which is his fundamental right guaranteed under Articles 14 & 16 of the Constitution of India.

11. Respondents No.1 & 3 have filed their return stating inter alia that the Review DPC proceeding dated 2-8-2016 is valid and legal as per law and there is no violation of the principles of natural justice. Affidavit in support of the return supporting the averments in the return, has been filed.

12. Similarly, respondent No.2 has filed its separate return supporting its stand taken before the CAT stating inter alia that a Court / Tribunal should not ordinarily interfere with the findings of the DPC / Selection Committee, unless, of course, if the same are violative of the statutory provisions of the Recruitment Rules or are actuated by mala fides and relied upon the decision of the Supreme Court in the matter of UPSC v. Hiranyalal Dev1 to submit, how to categorize in the light of the relevant records and what norms to apply in making the assessments are exclusively the function of the Selection Committee and the jurisdiction to make selection is 1 (1988) 2 SCC 242 (W.P.(S)No.1646/2019) vested in the Selection Committee. As such, the Review DPC has rightly graded the petitioner for two years as “good” and rightly found him unfit for the promotional post of Superintending Engineer.

13. Rejoinder has been filed by the petitioner opposing the averments made in the returns and reiterating the stand taken in the writ petition. Submissions: -

14. Mr. Yogendra Babu Sharma – petitioner in person, would vehemently submit that the manner in which the Review DPC has proceeded and considered his case leading to his non-promotion on the post of Superintending Engineer is absolutely arbitrary and contrary to the well settled principles of law, though he has been upgraded for the year 2005-06 by the competent authority i.e. respondent No.3 herein, yet his up-gradation has been doubted by the DPC, which is not the province and jurisdiction of the DPC constituted by the UPSC and furthermore, for the year 2006- 07, his remark of “Very Good” has also been doubted on the basis of irrelevant and nonexistent ground which is absolutely arbitrary. He would further submit that the learned CAT also did not look into the assessment made by the Review DPC and rejected the original application applying the principle of constructive res judicata on the basis of the order of the CAT passed in the contempt (W.P.(S)No.1646/2019) proceeding, which is per se illegal and the principle of constructive res judicata would not be applicable in the facts of the present case and totally on irrelevant grounds, the Review DPC has found him unfit for the post of Superintending Engineer, therefore, the impugned order is liable to be set aside. He would rely upon the decision of the Supreme Court in the matter of Dev Dutt v. Union of India and others2 to bolster his submission.

15. Mr. Ramakant Mishra, learned Deputy Solicitor General of India, appearing on behalf of the Union of India / respondents No.1 & 3, would submit that recommendation of the Review DPC has been accepted by the competent authority finding it in accordance with law by its memo dated 7-10-2016, which is in accordance with law and as such, the CAT has rightly dismissed the original application filed by the petitioner.

16. Mr. B.D. Guru, learned counsel appearing for the UPSC / respondent No.2, would support the DPC proceeding dated 2-8-2016 stating that the DPC constituted by respondent No.2 has considered the respective merit of the candidates and assessed the merit of promotion and procedurally, this Court would not like to sit in appellate jurisdiction as appellate authority, as it has been done fairly. He would rely upon the decision of the Supreme Court in the matter of 2 (2008) 8 SCC 725 (W.P.(S)No.1646/2019) Union Public Service Commission v. Arun Kumar Sharma and others3 to buttress his submission.

17. Mr. Amrito Das, learned amicus curiae, would submit that the Review DPC though considered the case of the petitioner for the promotional post of Superintending Engineer, but the manner in which the Review DPC considered the ACR of the petitioner for two years – particularly 2005-06 & 2006-07, is not in accordance with the well settled law in this regard. He further submits as under: -

1. That, for the year 2005-06, the petitioner's ACR was upgraded by respondent No.3 by order dated 21-5- 2015, yet the Review DPC declined to accept the upgraded ACR of the petitioner as “Very Good” by questioning the time of upgrading and by applying the principle of constructive res judicata, etc., which is not the province and jurisdiction of the Review DPC. The Review DPC has power and jurisdiction to grade the candidate appropriately, upon assessing the overall performance of a candidate, but not in a manner by disputing the up-gradation done by the competent authority, which is per se arbitrary and illegal.

2. That, for the year 2006-07, the petitioner's grading in the ACR – “Very Good” has also been questioned and he has been graded “Good” on totally irrelevant grounds, which is again not the province and jurisdiction of the 3 (2015) 12 SCC 600 (W.P.(S)No.1646/2019) Review DPC and it is well settled by the Supreme Court in this regard, as the Review DPC cannot question the very ACR awarded by the competent authority except to make its own assessment on the basis of entries made in the ACRs.

18. We have heard learned counsel for the parties and the amicus curiae as well and considered their rival submissions made herein-above and also went through the record with utmost circumspection. Question involved: -

19. The short question that is involved in the instant writ petition is, whether the Review DPC constituted by respondent No.2 is justified in holding that the petitioner is unfit for the post of Superintending Engineer (Group-A) and further, whether the CAT is justified in affirming the Review DPC proceedings dated 2-8-2016 by the impugned order dated 31-1-2019?

20. Admittedly and undisputedly, the petitioner’s case for the promotional post of Superintending Engineer (Group-A) was considered by the DPC constituted by the UPSC on 15-5- 2014, however, the petitioner was found unfit on the said post and his junior Mr. J.C. Borgohain was promoted which the petitioner questioned by filing substantive original application before the CAT, Delhi and the CAT, Delhi by its order dated 12-3-2015 allowed the original application and (W.P.(S)No.1646/2019) directed that the ACR for the year 2007-08 may be taken as no ACR and the same may be treated as ACR for the year 2002-03 by modifying / reviewing it. In the meanwhile, during the pendency of consideration of the Review DPC, the petitioner’s ACR for the year 2005-06 was upgraded by the competent authority as “Very Good” by order dated 21-5- 2015 and during the pendency of contempt proceeding, Review DPC came to be held on 2-8-2016 in which the petitioner's grading for the years 2003-04, 2004-05 & 2002- 03 was assessed and accepted as “Very Good” by the Review DPC, as earlier it was, however, for the years 2005-06 & 2006-07, his ACR was graded “Good” by the DPC and on that count, he was found unfit for the said post, thereby the Review DPC minutes dated 2-8-2016 was called in question in the original application filed before the CAT which has been rejected by the CAT by the impugned order, which is sought to be challenged in this writ petition.

21. Before we could proceed further to decide the correctness of the Review DPC proceeding, at this stage, it would be appropriate to notice the relevant judgments rendered by their Lordships of the Supreme Court delineating the scope of interference in the DPC proceeding and the grading awarded by the DPC or the Selection Committee. (W.P.(S)No.1646/2019) Right to be considered for promotion is Fundamental Right: -

22. It is appropriate to notice here that promotion is not a fundamental right of Government servant, but right to be considered for promotion is a fundamental right, such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. (See Union of India and others v. Sangram Keshari Nayak4.) In other words, right to be considered objectively and fairly on the promotional post is guaranteed under Article 16 of the Constitution of India. Under Article 16 of the Constitution, right to be “considered” for promotion is a fundamental right. It is not mere “consideration” for promotion, that is important, but the “consideration” must be “fair” according to the established principles governing service jurisprudence. (See Badrinath v. Government of Tamil Nadu and others5.) Scope of interference in DPC proceeding: -

23. In Hiranyalal Dev’ s case (supra), their Lordships of the Supreme Court have clearly held as under: - “How to categorize in the light of the relevant records and what norms to apply in making the assessments are exclusively the function of the Selection Committee. The jurisdiction to make selection is vested in the Selection Committee.”