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

On Friday, the Supreme Court found no fault with the view taken by the Delhi High Court, that it is not within the domain of the Departmental Promotion Committee (DPC) to downgrade the Annual Performance Appraisal Report (APAR) for a previous year that had already been acted upon. The Apex Court observed that the DPC couldn't have downgraded the officer without putting him on notice, when the concerned authority had recorded reasons for upgrading him. 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...

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

Sohini Chowdhury

Tags