IMPORTANT POINT
Promotion – Nomenclature of an entry is not relevant but its effect is determinative whether the entry is adverse or not – Every entry in ACR of a public servant has to be communicated to him.

JUDGMENT :

ATUL S. CHANDURKAR, J

1. The issue raised in this Civil Appeal is the entitlement of the appellant to promotion on the post of Chief Medical Director (Higher Administrative Grade) in the Indian Railway Medical Service¹[For short, ‘IRMS’]. The claim of the appellant having been turned down by the Central Administrative Tribunal²[For short, ‘the Tribunal’] vide its judgment dated 22.05.2007 and that adjudication having been upheld by the Delhi High Court³[For short, ‘the High Court’] on 09.01.2009, the appellant has preferred this Civil Appeal.

2. It is the case of the appellant that after obtaining requisite qualification for being recruited at the IRMS, she was appointed as Assistant Medical Officer. During the course of service, the appellant was eligible for being considered for further promotion. On 06.12.2006, the Railway Board published two lists with regard to promotion and posting of various officers from Senior Administrative Grade⁴[For short, ‘SAG’] as Chief Medical Director⁵[For short, ‘CMD’] in Higher Administrate Grade⁶[Fort short, ‘HAG’]. According to the appellant, despite being entitled to be promoted in HAG, she was deprived of the same and an officer junior to her came to be promoted. The appellant, therefore, approached the Tribunal raising a challenge to the promotion of respondent Nos. 3 to 9 and further sought relief of promotion as CMD, HAG. The Original Application preferred by the appellant came to be decided on 22.05.2007 by the Tribunal. It was held that the Selection Committee⁷[For short, ‘SC’] on 10.08.2006 considered the cases of about ten officers out of whom six came to be promoted as CMD, HAG. The appellant was at serial No.10. Her grading from 2001-02 to 2005-06 was considered by the SC. On the ground that the appellant did not secure the grading of ‘Very Good +’⁸[For short, ‘VG+’], the Tribunal held that the criteria required to be satisfied for being considered for promotion was not satisfied. Accordingly, the Original Application came to be dismissed.

3. The appellant approached the High Court challenging the judgment of the Tribunal. The High Court held that the Resolution dated 28.03.2000 by which the Railway Board laid down the procedure as well as the eligibility criteria for promotion as well as the Circular dated 03.06.2002 by which the Railway Board prescribed the benchmark of VG+ for promotion to the HAG was not under challenge. It was, therefore, held that the appellant having failed to secure the grading of VG+ coupled with the fact that she was awarded 19.5 marks, the assessment undertaken by the SC could not be faulted. By observing that the competence of SC was not liable to be questioned, the writ petition was dismissed. Being aggrieved, the appellant is before this Court.

4. Mr. Jaideep Gupta, learned Senior Advocate for the appellant while raising a challenge to the impugned judgment made the following submissions:

a) The SC applied the benchmark of VG+ which was in violation of the relevant service rules. According to the Secretary, Railway Board, the benchmark of VG+ was proposed vide letter dated 22.05.1996 and the same was approved by the letter dated 26.08.1996 issued by the Department of Personnel and Training⁹[For short, ‘DoPT’]. Subsequently however, the DoPT on 08.02.2002 issued an Office Memorandum¹⁰[For short, ‘OM’] prescribing the benchmark of ‘Very Good’. It was further directed that any other OM in conflict with the OM dated 08.02.2002 was to be treated as modified to that extent. Despite aforesaid, the Railway Board and the SC assessed the eligibility of the appellant for promotion by applying the benchmark of VG+. As a result, by applying the wrong benchmark, the appellant had been deprived of proper consideration for promotion.

b) Uncommunicated adverse entries in the Annual Confidential Reports¹¹[For short, ‘ACRs’] were taken into consideration by the SC. In this regard, it was submitted that the Railway Board having failed to communicate adverse entries