IMPORTANT POINT
Promotion cannot be denied on basis of un-communicated ACRs.

ORDER

J.S. Khehar, J.

1. The claim of the appellant-Prabhu Dayal Khandelwal was to be considered for promotion from the post of Commissioner of Income Tax to that of Chief Commissioner of Income Tax. 55 vacancies in the cadre of Chief Commissioner of Income Tax arose in the year 2000-2001, and a further 46 vacancies arose during the year 2001-2002.

2. It is not a matter of dispute, that the benchmark for promotion to the post of Chief Commissioner of Income Tax, under the prevailing DoPT guidelines was “very good”. In other words only such of the Commissioners of Income Tax, whose service record was “very good” would be treated as satisfying the “merit” component in the process of selection. When the claim of the appellant arose for consideration, the five Annual Confidential Reports which were liable to be taken into consideration were, for the years 1995-1996 to 1999-2000. Of the aforesaid Reports, in three the appellant was graded as “good” (for the years 1995-1996, 1996-1997 and 1998-1999), and in the remaining two he was graded as “very good” (for the years 1997-1998 and 1999-2000). On account of the fact, that the appellant did not satisfy the benchmark stipulated in the DoPT guidelines, he was not considered fit for promotion, to the post of Chief Commissioner of Income Tax.

3. The appellant raised a challenge against the action of the respondents/authorities, in superseding his claim for promotion to the post of Chief Commissioner of Income Tax, by filing O.A. No.290 of 2001, before the Central Administrative Tribunal, Calcutta Bench, on the ground that uncommunicated Annual Confidential Reports could not be taken into consideration, to defeat his claim for promotion. The pointed contention of the respondent, in this behalf was, that all the three Annual Confidential Reports in which he had been graded as “good” (detailed above) had not been communicated to him. The Administrative Tribunal accepted the prayer made by the appellant and accordingly passed the following directions:-

“19. In view of the above, we find merit in both the applications. We, therefore, allow both the applications. Since the appellants have not been found unfit for promotion in the over all assessment of the DPC meeting held on February 5 and 6, 2001, we direct all the respondents viz. Secretary, Deptt. of Revenue, Chairman CBDT, Member CBDT and Chairman, UPSC to reconsider the cases of both the applicants by holding the meeting of Review DPC on urgent basis on the basis of our above observations keeping in view the assessment made by the DPC in the meeting held on February 5 and 6, 2001 and to recommend their case within a period of three weeks from the date of receipt of this order to the competent authority for further necessary action including grant of all the consequential benefits to the applicants from the date their immediate juniors have been granted as a result of recommendations of the DPC meeting held on February 5 and 6, 2001 within a further period of three weeks and communicate the final order to the applicants within a week thereafter.”

4. The aforesaid order passed by the Administrative Tribunal, was assailed by the Union Public Service Commission, as also, the Union of India, before the High Court of Calcutta, by filing separate writ petitions. The High Court accepted the prayer made by the Union Public Service Commission as well as the Union of India while disposing of W.P.C.T. No.772 of 2002 and W.P.C.T. No.803 of 2002, vide its order dated 20.12.2002. Dissatisfied with the above order, the appellant-Prabhu Dayal Khandelwal has approached this Court, through the instant civil appeals.

5. In so far as the issue of non-consideration of the claim of the appellant is concerned, we are satisfied that the proposition of law relevant for the controversy in hand, was declared upon by this Court in Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146, wherein a three-Judge Division Bench of this Court, held as under:-

“7.