Smit Rekha Vishnoi vs Union Of India, Through And Ors

L. Narasimha Reddy, J

The applicant is an I.R.S officer of 1977 batch. She has been promoted to the level of Commissioner of Income Tax by the year 1996-97. In the context of promotion to the post of Chief Commissioner, her APARs for the years 2007-08 and 2008-09 became a hurdle. During those years, the gradation was at the level of 'Good', which was below bench mark. The applicant filed O.A No. 1927/2012 before this Tribunal in this behalf. Through order dated 24.11.2012, the Tribunal disposed of the O.A directing the respondents to consider the representations made by the applicant for upgradation of those ACRs.

It is stated that through separate orders dated 12.09.2011 and 19.04.2012, the competent authority has upgraded the APARs of the applicant for the years 2007-08 and 2008-09 respectively to the level of ' Very Good' .

When the case of the applicant was not considered for promotion by the review DPC on the basis of the upgraded ACRs, she filed O.A No. 435/2012. The same was disposed of on 24.11.2017 with a direction to hold the review DPC. May be on account of uncertainty, resulting from the communication gap, the review DPC ultimately convened on 18.02.2014 considered the case of the applicant for promotion to the post of CCIT, against the vacancies of 2011-12. The Review DPC took into account the upgradation of the ACRs for the years 2007-08 and 2008-09 and held that it is not in agreement with the upgradation and accordingly declared the applicant as 'unfit' for promotion. The same is challenged in O.A No. 452/2015.

The applicant is of the view that even while she was entitled to be considered for promotion against the vacancy of the year 2011-12, she ought to have been considered at least for the vacancy of the year 2013-14 and the same was denied to her wrongfully.

Accordingly, she filed O.A No. 4413/2013. The applicant contends that there is no justification for the review DPC in ignoring the ACR recorded by the competent authority an/d that no reasons whatsoever were assigned in support of their contentions.

The respondents filed counter affidavit in both the O.As and they stated that it is within the competence of the review DPC to analyse the circumstances in which the APAR of an officer under consideration were upgraded and that if it is not satisfied, it can ignore the same. It is stated that the review DPC has examined the matter strictly in accordance with the prescribed procedure and declared the applicant as 'unfit' for promotion, as regards the vacancy of the year 2011-2012.

We heard Mr. P. Srinivasan with Mr. Rajiv M. Ray, learned counsel for applicant and Mr. Ravinder Aggarwal and Mr. Duli Chand for UPSC, R-3, Mr. Gyanendra Singh and Mr. Hanu Bhaskar, learned counsels for respondents.

A review DPC was convened on 18.02.2014 after phenomenal exercise in this behalf. The vacancy in question was of the year 2011-12. The ACRs of 5 years preceding were taken into account. It has already been mentioned that the ACRs of the applicant for the years 2007-08 and 2008-09 were rated below bench mark and on request made by her, and in compliance with the directions issued by the Tribunal, the competent authority upgraded the same to the level of 'Very Good', through separate orders. The review DPC had before it, three ACRs which were rated as ' Very Good' at the initial stage itself and two ACRs which were upgraded to the level of ' Very Good' by the competent authority.

It is true that the office memoranda issued by the DoP&T from time to time confer power upon the DPC or Review DPC to take note of the legality or otherwise of the upgradation of ACRs made by the competent authority. However, it is required to be objective in its approach and it cannot act in an arbitrary and unfair manner. The relevant portion of the guidelines contained in the office memorandum dated 09.05.2014 issued by the DoP&T read as under :-

"5. It is reiterated that in discharge of its statutory functions the respective DPCs are required to determine the merits of those being considered for promotion with reference to the prescribed bench-mark, by making its own assessment, on the basis of the entries and gradings contained in the APARs and other relevant material facts placed before it, and accordingly grade the officers as 'fit' or 'unfit'. Relevant material would inter alia include the orders of the competent authority on the representation of the Government servant on the entries/ grading in APAR. In the event of the DPC deciding not to take cognisance of such an order, on the ground that the same is not a speaking order, the DPC shall make its assessment based on the entries in APAR and other material including the representation of the Government servant. The DPCs should substantiate its assessment by giving justifiable and sustainable reasons including the cases where the assessment of the DPC is different from the grading in APAR (original or amended after representation by the Government servant)."

A perusal of this discloses that even where the review DPC disagrees with the upgradation of the APARs by the competent authority, it must substantiate its decision and act in an objective manner. This being the requirement under law, what the review DPC has done in the instant case needs to be examined. The relevant consideration in this behalf is contained in para 4.2 of the minutes which reads as under :-

"4.2 The Committee have gone through all the attributes in the ACRs of Smt. Smit Rekha Vishnoi for the years 2007-08 and 2008-09 as well as speaking orders issued by the competent authority upgrading the overall grading to 'Very Good' in the said ACRs. With regard to the ACR for the year 2007-08, the Committee after going through the various personal attributes of the officer as recorded in the ACR were of the considered opinion that the overall grading of the officer works out to 'Good' only and there is no justification for upgrading her ACR from 'Good' to 'Very Good'. The Committee, therefore, in exercise of powers conferred in it vide 6.21(e) of DOP&T OM No. 22011/5/86-Estt. (D) dated 10.04.1989 assessed the officer as 'Good' in the year 2007-08."

Except stating that the review DPC is of the opinion that the overall grading of the officer works out to 'Good' only and there is no justification for upgrading his ACRs from 'Good' to 'Very Good', no reason whatever is mentioned. The exercise undertaken by the review DPC was totally opposed to the one stipulated under O.M. dated 09.05.2014.

There is another interesting development in this case. The case of the applicant was considered by another DPC for the post of CCIT against vacancy of the year 2013-14. Through an order dated 18.02.2018, the DPC found the applicant 'fit' and she was accordingly promoted on notional basis, inasmuch as she retired from service by that date. The ACRs of 2007-08 and 2008-09 became relevant for this vacancy also. The position is that while DPC which met for the vacancies of 2013-14 found nothing objectionable in his ACRs of the applicant for the years referred to above, the one which met on 18.02.2014 took exactly the opposite view. The same cannot be countenanced in law.

We, therefore, allow O.A. No. 452/2014 and set aside the minutes of the DPC which met on 18.02.2014. The respondents are directed to convene another DPC to consider the case of the applicant for promotion to the post of CCIT against the vacancy of 2011-12. It is needless to mention that such a DPC, as and when convened, shall take into account, that the applicant was found 'fit' for promotion to the very post against the vacancy of 2013-14.The above exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

In view of the developments that have taken place and the directions issued in O.A No. 452/2015, nothing remains to be decided in O.A. No.4413/2013 and it is dismissed as infructuous. There shall be no order as to costs.