G.P. Singhal, AM:— By filing this Original Application the applicant has prayed for the following reliefs:—
“8.(i) Allow the instant OA and be pleased to direct the respondent to upgrade the ACRs of the applicant and to constitute the review DPC/assessment committee to assess the applicant for promotion to the post of T-2 & T-3 w.e.f. due dates i.e. 29.06.2001 & 29.06.2006 respectively.
(ii) Pass such other and further orders, this Hon'ble Tribunal may deem fit in the facts & circumstances of the case, in the interest of fair play and justice in favor of applicant.
(iii) Cost the petition may also kindly be awarded.”
2. Heard the learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
3. We find that the applicant was initially appointed on a non-ministerial post of Driver under the respondent-department vide order dated 29.7.1992 w.e.f. 6.6.1992 (Annexure R-1). Later on the posts were reclassified and in view of applicant having exercised his option for coming over to Technical Category, the applicant was placed as T-1 Driver in Category-I of the Technical category vide order dated 6.12.1996 w.e.f. 29.6.1996.
4. As per the ICAR Technical Service Rules, there is a system of merit promotion from one grade to next higher grade irrespective of the occurrence of vacancies in the higher grade or grant of advance increment(s) in the same grade on the basis of assessment of performance. In Category-I, an individual becomes eligible for consideration for promotion from grade T-1 to grade T-2 after five years of service. As per the criteria fixed, for promotion upto Grade T-5 consistently three ‘Good’ Annual Assessment Reports are required.
5. The applicant was communicated adverse remarks for the period 1999-2000 vide memo dated 21.8.2000 and his representation against the same was rejected vide letter dated 3.5.2001, and the applicant has not challenged the said ACR before any judicial forum, thus it has attained finality.
6. After the applicant completed the prescribed five years of service on the post of T-1 Driver in Category-I of Technical category, the meeting of the Assessment Committee was held on 19.12.2003 and the applicant's five years' assessment reports for 1996-2001 period were considered. The Assessment Committee did not recommend the applicant for promotion to the post of T-2 Driver as he was not fulfilling the prescribed bench mark of consistently three ‘Good’ reports in his Annual Assessment Reports of the last five years. However, Assessment Committee recommended for grant of one advance increment to applicant w.e.f. 1.7.2001. Therefore, vide order dated 27.12.2003 (Annexure R-6) the applicant was granted one advance increment w.e.f. 1.7.2001. In subsequent meetings of the Assessment Committees held on 25.8.2004 and 5.8.2005 his case was duly considered, but he could not be promoted firstly because of non-availability of ACRs by the meeting held on 25.8.2004 and secondly in the meeting held on 5.8.2005 his case was not recommended for promotion.
7. In the year 2006, the respondents called for options for opting Old Technical Services Rules or New Technical Service Rules, vide letter dated 19.10.2006. The applicant opted for retaining Old Technical Service Rules. As per Old Technical Service Rules (for brevity ‘Old TSR’) those who were appointed in Category-I and opted for Old TSR will get promotion within the Category-I upto T-1-3 after every five yearly period but they will not be eligible for any further promotion beyond T-1-3 level i.e. they will not get promotion to T-4 and T-5 level.
8. Thereafter the meeting of the Assessment Committee was held on 18.2.2008 which recommended the applicant for grant of two advance increments w.e.f. 1.7.2006. Another meeting of the Assessment Committee was held on 30.8.2008 and the applicant's five years ACRs for the period 29.6.2002 to 28.6.2007 and other material were considered and he was recommended for promotion from T-1 to T-2 Driver w.e.f. 29.6.2007.
9. However, we find that the applicant's case was considered in the years 2003, 2004 & 2005 by using some of his uncommunicated below benchmark ACRs. The applicant has submitted that no ACR except that of 1999-2000 was ever communicated to him and therefore he deserved to be promoted in 2003 and if not by subsequent DPCs as presumably none of his ACRs except that of 1999-2000 were below bench mark.
10. In the maters of Dev Dutt v. Union of India, (2008) 8 SCC 725, the Hon'ble Supreme Court has very categorically stated that every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved. In the said matter their lordships have further held thus:
“9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have “very good” entry for the last five years. Thus in this situation the “good” entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a “good” entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
10. Hence, in our opinion, the “good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-1994 should be upgraded from “good” to “very good”. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the “good” entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable”.
11. In view of the settled legal position, we direct the respondents to communicate the applicant all the ACRs, which were below benchmark and therefore resulted in rejection of his case for promotion in meetings held for 2003, 2004 and 2005, within a period of one month of the receipt of a copy of this order. On receipt of the ACRs, the applicant may file his representations against these ACRs within a period of further one month and respondents on getting it shall decide the representations within a period of one month of its receipt. If the ACRs of the applicant are upgraded, his case should be considered by review DPCs for grant of promotion as per rules to next higher grade while duly taking into consideration grant of three advance increments to the applicant during this period, within a period of one month thereafter.
12. In the result, the Original Application is disposed of with the above directions. No costs
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