Shanker Raju:— Non-promotion on account of down-gradation in the ACRS as compared to the benchmark is no more res integra in the present OA.
2. Learned counsel for applicant relies upon the decision of this Tribunal in R.K Anand v. Union of India (OA-1936/2001) decided on 12.11.2001, which when carried to the High Court by the respondents-respondents in CWP 1386/2002, it was affirmed on 27.2.2002 Thereafter, CA-7061/2002 was filed before the Apex Court, which was dismissed vide order dated 27.11.2008 in view of the decision in Dev Dutt v. Union of India, 2008 (7) SCALE 403.
3. Learned counsel for applicant, in these circumstances, would contend that once there has been a downgrading in the ACRs, those ACRS, which fall below the benchmark and the gradings thereof are to be totally ignored and on the basis of rest of the ACRs, promotion has to be reviewed.
4. Learned counsel would also contend that the applicant is retiring within one year and the time taken in the methodology adopted as per the dicta in Dev Dutt's case (supra) would overshoot the period and in such an event, the actual benefits would not be available to the applicant.
5. Learned counsel would further contend that on representation of the applicant, ACRs, which had been downgraded when not communicated at the appropriate time, rejection of representation would leave the applicant in such a position; firstly that adverse remarks in the ACRs has not been communicated to him timely and secondly on this no reasonable opportunity has been afforded to him.
6. On the other hand, learned counsel for respondents vehemently opposed the contentions and states that this is the only methodology could be adopted in this case, which is as per the law laid down by Apex Court in Dev Dutt's case (supra).
7. We have carefully considered the rival contentions of the parties and perused the material on record. In our considered view, when there is a reference to the decision in Dev Dutt's case (supra) and the SLP was dismissed in view of the decision aforesaid, there was a tacit agreement of coordinate bench to the ratio arrived in Dev Dutt's case (supra) on modification of the directions affirmed by the High Court. Insofar as communication of ACRs and holding of review DPC is concerned, we are of the considered view that what is available in such cases where the downgrading has taken place in the ACR is adoption of the methodology in consonance with principles of natural justice as laid down in Dev Dutt's case (supra).
8. In the result, for the foregoing reasons, OA stands disposed of with a direction to the respondents to communicate to the applicant all the ACRs, which had been downgraded as compared to the benchmark within a period of one month from the date of receipt of a copy of this order with liberty to the applicant to represent against the same, if so advised, within a period of fifteen days. Thereafter final decision, a reasoned one, be arrived at in the matter within a period of one month from the date of receipt of a representation from the applicant. We, however, make it clear that in the event a grading is upgraded, claim of the applicant shall be considered for promotion in review DPC. In the case of his being promoted, actual benefits be restored to the applicant from the date his immediate junior was accorded the same. No costs.