Adverse Grading Must Be Communicated To Employees If It Forms Basis For Denying Benefit Of NFSG

A Division Bench of the Delhi High Court comprising of Justices Navin Chawla and Shalinder Kaur held that if the grading in the Petitioner's ACR gave rise to a civil consequence, such grading must have been communicated to him. The Bench observed that if the Petitioner did not get an opportunity to challenge such grading, the Authority can't use such grading to deny him the grant of NFSG.

Background

On 25.09.2019, the Internal Screening Committee considered the Petitioner for grant of Non-Functional Selection Grade (NFSG) for the year 2000. While doing so, five of his ACRs from the last years were taken into consideration. For the year 1998-1999, the Petitioner's grading in the ACR was 'average' which was below benchmark. Therefore, he was graded as 'unfit' as per Office Memorandum dated 09.10.1989. He made a representation against the same which was rejected on 12.06.2020. Resultantly, the Petitioner filed a Writ Petition before the High Court seeking quashing of the rejection order. The Petitioner further claimed grant of NFSG with effect from 06.06.2000.

Contentions of the petitioner

The Counsel for the Petitioner submitted that apart from the adverse grading, an adverse remark was also made against the petitioner. However, as per the Petitioner, while the he was informed about the adverse remarks made against him, no information about the adverse grading in his ACR was provided to him. As far as the information regarding the adverse remarks is concerned, the same was communicated to the Petitioner and he had made a representation against the same which was also accepted by the Competitive Authority. However, he could not challenge the adverse grading of 'adverse' as it was not communicated to him.

While making these submissions, the Counsel relied on several decisions of the Supreme Court including Dev Dutt v. Union of India & Ors. (2008) 8 SCC 725, and in Baidyanath Mahapatra v. State of Orissa &Anr. (1989) 4 SCC 664; and of this Court in Commandant V.S. Shekhawat v. Union of India & Ors., 2019 SCC OnLine Del 9942. It was argued that as per the decisions cited, even if the grading was adverse, it needed to be communicated to the employees in cases where the grading affected such employees. The counsel further stated that in case of the Petitioner, the grant of NFSG was denied to him and therefore he should have been informed about his grading so as to enable him to file a representation against the same. Contending further that the Petitioner could no more file a representation against the adverse grading due to a long delay, it was stated that such non-communication would also mean denial of rights under Article 14 of the Constitution of India.

Contentions of the Respondent

The Counsel for the Respondent stated that the Office Memorandum dated 09.10.1989 stated that according to the Office Memorandum (OM), the petitioner needed at least two 'Very Good' ratings in the last five ACRs and an overall 'Good' performance to be able to qualify for the NFSG. It was submitted that the petitioner had been given an 'Average' rating for the year 1998–1999 and therefore the grant of NFSG was not possible. It was further stated that as per the OM dated 12.05.1972, the Petitioner did not need to be informed by the Respondents about his grading.

Findings of the Court

The Court observed that two major issues had arisen in the Petitioner's situation. Firstly, the Petitioner was informed about the adverse remarks attached to him in the ACR for the year 1998-1999 against which he filed a representation and the Competent Authority accepted the representation. Secondly, the Petitioner was not informed about the 'Average' grading that was awarded to him which resulted in denying him the grant of NFSG, hence giving rise to a civil consequence. Moreover, since he was not made aware of such grading, he could not avail the opportunity of representing against the same.

The Bench cited the decision in Dev Dutt v. Union of India & Ors wherein it was held,

“In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or"average" or "fair" entry certainly has less chances of being selected than a person having a "very good" or "outstanding" entry.”

The Court cited another decision in Baidyanath Mahapatra v. State of Orissa & Anr where the same principle was reiterated.

Citing the judgments above, the Bench finally held that in the Petitioner's case, the adverse grading was not conveyed to him and therefore the Internal Screening Committee could not deny him the grant of NFSG based on such grading especially because the Petitioner could not represent against the same. The Court further held that since the Petitioner made a representation against the adverse remarks and the Competent Authority expunged the same, it could be presumed that given the opportunity to challenge the adverse grading, the Petitioner's grading also stood a chance of upgradation.

Making these observations, the Court set aside the Impugned Communication dated 12.06.2020 and directed the respondents to grant to the petitioner the benefit of the NFSG with effect from the date on which the officers junior to the petitioner were granted such benefit.

Case Title: ASITAV MOHANTY versus UNION OF INDIA & ANR

Counsel for Petitioner: Dr. S.S. Hooda & Mr.Ayushman Aeron, Advs.

Counsel for Respondent: Mr. Jagdish Chandra, CGSC with Mr. Shubham Kumar Mishra, Adv.

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