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TMI Blog2012 (12) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... urn, as Under Secretary. The next higher promotional post is that of Deputy Secretary. (ii) In the DPC held on 12.03.2007, the case of the respondent along with others came up for consideration for the post of Deputy Secretary, wherein ACRs for the period 2001-02 to 2005-06 were under consideration. The respondent was superseded in the matter of promotion on the post aforesaid by his juniors. (iii) Another DPC was held in July, 2008, wherein, too, the respondent was not recommended, and his juniors were promoted. On both occasions, the respondent was overlooked in the matter of promotion by his juniors as some of his ACRs were not commensurate to the benchmark. (iv) Aggrieved by his non-promotion, the respondent made a representation on 02.01.2008. The same was, however, rejected on 24.01.2008 by a non-speaking order stating that his case would be considered by the next DPC as and when the same met. The respondent submitted further representations on 29.07.2008, 31.12.2008 and 12.06.2009 for reviewing his ACRs. His last representation came to be rejected by the petitioners vide order dated 06.07.2009 on the ground that the new system was introduced with effect from the reporting pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his below benchmark ACRs, from the time he was first found unfit for promotion. 3. The arguments canvassed by the petitioners are two-fold. It is first submitted by the learned counsel for the petitioner that the issue regarding the consideration of promotion retrospectively is pending before a Larger Bench of the Supreme Court in the matter of UOI v. A.K. Goel Ors., SLP (C) No. 15770/2009 and, therefore, this Court should await the decision of the Supreme Court before disposing of this petition. 4. It is next submitted that the Office Memorandum No. 21011/1/2010 dated 13.04.2010 issued by the Director Government of India, Ministry of Personnel, Public Grievances Pensions Department of Personnel Training clearly demonstrates that upgradation of the ACRs of the employee in the present circumstances is to be considered for promotion in a future DPC only. In other words, the upgradation of ACRs, if any, after consideration will have prospective effect only. 5. It is also brought to the notice of this Court that the respondent herein has not challenged this particular Office Memorandum before the Tribunal. 6. In this behalf it is noticed that the Supreme Court has settled the law on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three Honourable Judges of the Supreme Court in the case of Abhijit Ghosh Dastidar (supra) has observed: 4. It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark very good is required for being considered for promotion admittedly the entry of good was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having very good in the previous year. In those circumstances, in our opinion, noncommunication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such noncommunication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries good if at all granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the second submission made on behalf of the petitioners the Office Memorandum No. 21011/1/2010 dated 13.04.2010 is reproduced below for ready reference: No. 210111112010-Estt. A Government of India Ministry of Personnel, Public Grievances Pensions Department of Personnel Training ***** North Block, New Delhi Dated the 13th April, 2010 OFFICE MEMORANDUM Subject: Below Benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading. The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreted to mean that an employee, who had below benchmark ACRs prior to the declaration of law, upon upgradation of those ACRs would be entitled to consideration for promotion in future alone. Such an interpretation would defeat the very purpose of the benefit intended to be given. The fact that below benchmark ACRs are upgraded pursuant to a representation made in that behalf goes to show that the concerned authority recognises and subsequently corrects an erroneous assessment made by it at the first instance. To restrict the benefit of such an admitted correction for the purpose of future DPCs would deprive the concerned employee of valuable rights. It is an admitted position that the respondent was considered unfit for promotion on 3 different occasions and thereby deprived of legitimate promotion for 3 years. The benefit thus accrues to him from the date he was first denied promotion on the basis of the erroneous assessment. 16. In Union of India and Ors. vs. Krishna Mohan Dixit and Ors. (WP(C) No. 6013/2010 decided on 8.10.2010) a Division Bench of this Court considered OM No. 21011/1/2010 dated 13.04.2010 in the case of noncommunication of below benchmark ACRs. The court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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