Departmental Promotion Committee Cannot Downgrade Annual Performance Appraisal Report Of Previous Year Which Has Already Been Acted Upon: Supreme Court

A bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh dismissed a Petition filed by the Union Public Service Commission (UPSC) assailing a 2019 order of the Delhi High Court directing a review DPC for consideration of Avtar Singh Arora's (Respondent No.1) promotion to the post of Special Director General (Electricity & Mechanical) in the Central Public Works Department.

Factual Background

The Respondent No. 1 joined as an Assistant Executive Engineer (E&M) in 1983. On 6th August, 2014 the Respondent No. 1 was communicated his APAR for the period between 13th June, 2013 and 31st March, 2014. In the APAR for the said period, the Respondent No. 1 was given zero points against Column No. 3.1 (ii) and a grading of 5.63 by the Reviewing Authority, 7 points in the aforesaid column and overall 7 was rewarded by the Reporting Officer. The Accepting Authority gave the Respondent No.1 a grading of 5 points. Overall grading of the Respondent No.1 was "Good", which was a below benchmark grading. He submitted a representation to the Minister of Urban Development and his grade was revised to "Very Good" by awarding him 6.57 grade points. Consequently, he was promoted to the post of ADG (E&M).

In December, 2017, when the DPC was considering his promotion to the post of SDG (E&M) against the vacancy year 2018, it found him unfit based on the initial rating of 5 points in the assessment of 2013-14. The Respondent submitted a representation to the concerned authority, seeking a review DPC, which was eventually rejected. Aggrieved, the Respondent No. 1 approached the Central Administrative Tribunal (CAT) to set aside the decision of DPC. CAT dismissed the application and the matter went to the Delhi High Court. The High Court acknowledged that there was a limited scope for judicial review in the matter.

"...the only aspect, which in our view, needs consideration is whether the representation of the petitioner and the response of the reporting officer, reviewing officer and the accepting officer were placed before the DPC, when it arrived at its decision to find the petitioner unfit."

Observing that there were clear reasons cited by the concerned authority for upgrading the Respondent No. 1, in 2014, the High Court noted that it was therefore incumbent on the DPC to provide reasons for differing in their view. Moreover referring to OM dated 9th May, 2014, the Court stated -

"It specifically states that "the DPC 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."

Finally, considering the assessment of DPC was in the nature of suo-motu review of a grading of a previous year on the basis of which the Respondent had already been promoted as ADG, the High Court directed a review DPC.

Proceeding before the Supreme Court

At the outset, Advocate Mr. Naresh Kaushik appearing on behalf of UPSC, apprised the Supreme Court that the High Court had not considered a crucial aspect in the matter. He submitted -

"A very crucial factor has been ignored by the Hon'ble High Court. This Court had laid down that assessment by expert bodies need not be interfered with by judicial bodies."

The Bench retorted that the High Court had merely pointed out that the requisite material was not placed before DPC.

"As I understand, the High Court says that the material should have been placed. That's all."

Mr. Kaushik informed the Court that all relevant material was placed before DPC.

"That was placed. That has not been considered."

Explaining the limited scope of the order of the High Court, the Bench stated that the High Court had not directed him to be promoted, but to review his candidature based on all material.

"The High Court has not directed his promotion, it has only directed a review to consider the material that was not placed before it."

Mr. Kaushik insisted that the concerned material was before the DPC.

"It was placed before the DPC. If you peruse the minutes of DPC it would be clear."

The Bench felt that UPSC had ample time to approach the High Court in review, if it was so certain that the Court had not considered the aforementioned aspect.

"You are coming against a judgment decided in 2019, in which case at that point in time filed the review that there was some material…I am not on delay. I am saying that the time period between the judgment, if you felt some material before the court had not been examined, was the time to file a review application."

Mr. Kaushik asserted that his written synopsis before the High Court clearly indicated that the material was before DPC. Moreso, the minutes of the review DPC also indicated the same.

"Milords, kindly consider, if your lordships feel we can go back to the High Court even now. It was pointed out. My written synopsis clearly indicates that. The minutes of the review DPC which was before the Hon'ble Court themselves reflect."

The Bench asked Mr. Kaushik to show from the documents, the fact that the material was indeed placed for consideration of the Court -

"According to the High Court, what you were required to place before the Committee was the initial ACR, representation of the Respondent and the upgradation document. Please show us that this was placed."

Responding to the Bench's query, Mr. Kaushik read from the DPC order.

The Bench enquired if the representation pursuant to which the upgradation of the Respondent No. 1 took place in 2014 was also before the DPC.

"The only thing therefore is the representation which was made by the Respondent pursuant to which upgradation took place was it also placed or not placed."

Mr. Kaushik submitted, "It was placed."

The Bench pointed out that the view taken by the HC that the DPC ought to have given reason for taking a different view from the competent authority who had upgraded the Respondent No. 1, was a valid one.

"The High Court has said that ..you should have put the officer on notice because it has a cascading effect. So, now you are not considering him for a promotional post. It has a civil consequence and you should have put him on notice. What is wrong with this view?"

Mr. Kaushik argued that it was contrary to the principles laid down by the Supreme Court.

The Bench emphasised that if a different view was taken by DPC, then the Respondent No. 1 had to be put on notice of the same.

"No, Mr. Kaushik you are wrong because you are going on the basis that the report is not binding, maybe so, maybe the upgradation is not binding, but if you do not accept upgradation then you have to put him on notice. That is the point."

Mr. Kaushik submitted that, "The assessment of the officer for promotion is not a process where the principles of natural justice are attracted."

The Bench pressed on the issue of putting the Respondent No. 1 on notice.

"Are you saying, if the upgradation takes place, he knows, it is an upgradation, you can ignore the upgradation without informing him?"

Mr. Kaushik responded, "No, Milords. It is not lowering the upgradation."

Referring to the judgment of the High Court, the Bench noted -

"The High Court says that the CA [Competent Authority] having recorded the above reason for increasing for Petitioner‟s grade points, it was incumbent upon the DPC to supply reasons for differing with it in this regard."

Mr. Kaushik argued that the DPC had given reasons why the upgradation was not justified.

"Reasons are not to the letter to the officer. Kindly see UPSC v. Satyapriya. The reasons have been given by DPC. They say the records do not justify, indicate any reason for upgradation. The particular column was, did he discharge any additional function. The accepting authorities said that this was one of the incidental functions and no additional function has been given."

The Bench noted that if the DPC in an independent decision based on material on record would have found the Respondent No.1 to be 'unfit', then the same would have been acceptable, but the DPC couldn't have downgraded him.

"If you come to an independent decision based on the record that he is not fit to be considered, that is a different issue. But, what you have done is downgraded him."

Mr. Kaushik sought the Court's permission to read the DPC guidelines. Not inclined to permit, the Bench remarked -

"You are not able to convince us for the better part of 10 mins for a notice."

Finding no merit in the matter, the Bench dismissed the same.

[Case Title: Union Public Service Commission v. Avtar Singh Arora And Ors. Dairy No. 10581 of 2021]

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