IMPORTANT POINT
Non-communication of below benchmark grading in ACR/APAR is arbitrary and violative of Article 14 of the Constitution of India. The rejection of representation against below benchmark grading must be supported by valid reasons.

JUDGMENT

V. Kameswar Rao, J.

1. The challenge in this petition is to the order dated December 03, 2020 passed by the Central Administrative Tribunal, Principal Bench, New Delhi ('Tribunal', for short) in the Original Application being O.A. No.4437 of 2017, filed by the petitioner whereby, the Tribunal has dismissed the OA.

2. The claim of the petitioner in the O.A. was primarily for his promotion to the post of Grade IV in Pay Band 4- .37400-67000 with Grade Pay Rs.8700/-.

3. Suffice to state, the Departmental Promotion Committee ('DPC', for short) had recommended the names of 39 officers for promotion, whereas three officers who were found 'Unfit' were not given promotion.

4. It is the case of the respondent that, with regard to 11 officers including the petitioner, it deferred consideration on account of below benchmark of Annual Performance Appraisal Reports (APARs) for the preceding 5 years.

5. The case of the petitioner was that, he made several representations but when no specific response was received, he filed the O.A. with a prayer for quashing and setting aside the communication dated November 24, 2017, through which his promotion was deferred. He sought consequential prayer against the respondent to reconsider his case for promotion to Grade IV of IFS w.e.f. January 01, 2016.

6. The case of the respondent was primarily that, as the APARs for the preceding five years were below the benchmark, he was not recommended for promotion. In this respect, the respondent has primarily relied upon the APAR of the second half of 2013-14 i.e., between the period October 17, 2013 to March 31, 2014 which was rated as 'Good'. The benchmark which is adopted for promotion is 'Very Good' or above, for five years.

7. In substance, their case was, it is only the officers, whose APARs are 'Very Good' or above, for the preceding 5 years, shall be treated as fit for promotion. In the case of the petitioner the APARs for the period 2009-10, 2010-11, 2011-12, 2012-13 and first half of 2013- 14, were 'outstanding' but in the second half of the reporting period of 2013-14, the performance was marked as 'Good' in the APAR, therefore, he was not found fit for promotion.

8. The Tribunal dismissed the O.A. as being without merit.

9. The submission of Mr. M.K. Bhardwaj is primarily that the Tribunal has erred without adverting to the main issue raised in the O.A., inasmuch as, the petitioner was not informed with respect to any adverse grading in the APAR, therefore, he could not have been declared 'Unfit' by the DPC by relying upon un-communicated APAR as the same is not permissible in view of the law laid down by the Supreme Court in Abhijeet Ghosh Dastidhar v. Union of India & Ors., (2009) 16 SCC 146.

10. He stated that the DPC for promotion was held on February 10, 2016 and APAR for the period October 17, 2013 to March 31, 2014 was communicated to the petitioner only on December 06, 2017, i.e., after a delay of 21 months and 24 days.

11. It is also his submission that, as per the DoP&T instructions contained in O.M. dated October 06, 2012, both the CRs written for the year 2013-14 were required to be treated as one. Thereby, the marks awarded in both the CRs were required to be added to evaluate the fitness of petitioner. Once both the CRs of 2013-14 are treated as one, the petitioner's grading for the same year will become 'Very Good' and in that eventuality he would be 'Fit' for promotion.

12. He stated, the petitioner had earned "Outstanding" grading throughout his career and was downgraded from "Outstanding" to "Good" for a short period of six months and again awarded "Outstanding" for the subsequent years, therefore, the sudden fall in grading was required to be treated as nullity in the eyes of law, in view of judgments of the Supreme Court in the case of J.R. Jain v. UOI 1973 (2) SLR 309 and S.T. Ramesh v. State of Karnataka (AIR) 2007 SC 1262.

13. He stated that the very purpose of writing APARs is to ensure that the concerned officers. performance