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Judgment
By the present petition under Articles 226 and 227 of the Constitution of India, the Director General, Employees State Insurance Corporation (“petitioner”), seeks quashing of the order dated 11.10.2006 (“impugned order”) passed by the learned Chief Commissioner for Persons with Disabilities (“CCPD”) in Case No. 2930/2004/5947, whereby the learned Chief Commissioner, inter alia, observed and directed as under:
“16.In the light of the above discussions, observations and circumstances. certain common preconceptions on account of disability of the complainant amongst the Members of the DPC appear to have worked against the complainant, resulting in deprivation of reasonable benefit to him. This Court, therefore, directs the concerned appointing authority in the Employees State Insurance Corporation to consider the complainant for promotion to the post of Superintendent and promote him to that post, if otherwise found fit, from the year 1989 when the post of Superintendent was added to the regulations as an interchangeable post to Insurance Inspector within 3 months from the date of receipt of this Order. It should also be ensured that the complainant is not declared unfit on the ground that he did not perform the duties of the post, which was not assigned to him.”
Briefly stated, respondent no.2 joined the Employees State Insurance Corporation (“ESIC”) as a Lower Division Clerk (“LDC”) in November 1976 and was promoted as Upper Division Clerk (“UDC”) in April 1981. Between 1990 and 1992, the respondent no.2 gradually lost his vision and is now totally blind. Thereafter, respondent no.2 was promoted as Assistant by order dated 17.09.1992 against the 3% reservation for persons with disabilities, but was reverted to UDC on 23.09.1993 on the ground of being visually impaired.
Aggrieved by it, respondent no.2 approached the learned Central Administrative Tribunal, Mumbai (“CAT”) in O.A. No. 886/1994. During the pendency of the case before the learned CAT, the petitioner, after a review DPC, promoted respondent no.2 as Assistant by order dated 12.04.2000 retrospectively w.e.f. 24.03.1993. Noting that the petitioner had corrected the mistake, the learned CAT, by judgment dated 05.05.2000, disposed of the O.A. and directed payment of the difference in salary and allowances from 24.09.1993 till 07.05.2000.
The next promotional post was of Insurance Inspector/Local Office Manager/Superintendent (Rs 5500-9000), which was interchangeable and required three years of regular service as Assistant. According to the petitioner, the respondent no.2 completed three years on 23.09.1996 and became eligible from the vacancy year 1996-97; the respondent no.2 claims eligibility from 21.09.1995. In its order dated 13.10.2011, this Court recorded that respondent no.2 became eligible in 1995/1996 and not in 1989.
The respondent no.2’s case was first considered by the Departmental Promotion Committee (“DPC”) held on 22.02.2001. According to the petitioner, since the post had not been identified for visually handicapped persons at that stage, his suitability was not assessed under the quota for persons with disabilities. Thereafter, the DPC held on 20.01.2004 considered the respondent no.2’s case both as a person with disability and in the general category, but did not find him fit for promotion.
Pursuant to the same, respondent no.2 filed a complaint dated 21.04.2003 before the learned CCPD under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PWD Act”), alleging denial of promotion on account of his disability. By Record of Proceedings dated 29.10.2004, the learned CCPD advised the petitioner to consider respondent no.2 against the reserved vacancies for the DPCs of 1997, 1999 and 2001 and to review the 2004 DPC. A Review DPC (“Review DPC”) held on 06.05.2005 assessed his performance as “Below Average” and did not find him fit for the vacancy years 1996-97 to 2000-01. The learned CCPD, not agreeing with the aforesaid assessment, directed a further Review DPC, which was held on 27.07.2005, which again graded him “Below Average” and found him unfit. The relevant portions of the minutes are reproduced below:
“Minutes from meeting held on 06.05.2005
“III. The Review DPC, then, examined the case of Shri N.J. Dalvi with reference to the DPC minutes dated 22.2.2001. This DPC had considered the cases of officials in the feeder cadre for promotion against the vacancies that had arisen during the following years :-
1.1997-98
2.1998-99
3.1999-2000
4.2000-2001
The decision of the Review DPC in respect of vacancy years 1997-98 and 1998-99 had already been recorded after verification of the ACRs of the relevant years. The case of Shri N.J. Dalvi was, therefore, considered against the vacancy year 1999-2000 and the ACRs of period from 1993-94 to 1997-98 were verified. Considering the nature of work done by him during the said period, the Review DPC assessed his performance as 'Below Average' and did not find Shri N.J. Dalvi fit for promotion against the vacancy year 1999-2000
His case was considered for promotion against the vacancy for the year 2000-01. The ACRS for the period from 1994-95 to 1998-99 were examined. Considering the nature of work done by him during the said period, the Review DPC assessed his performance as 'Below Average' and did not find Shri N.J. Dalvi fit for promotion against the vacancy year 2000-2001
IV. The Review DPC examined the records of the earlier DPC dated 21.1.2004 and found that the decision taken by the DPC concerned did not require modification.
While considering the case of Shri N. J. Dalvi for promotion under the quota for the Physically Handicapped, the Review DPC arrived at its decisions on the basis of work performed by the official and also the manner of performance with reference to the nature of work expected from the officials in the cadre of U.D.C. and Assistant. Although the Review DPC was aware that the official was totally blind it did not take that fact into account while assessing his case.”
Minutes from meeting held on 27.07.2005
“The Review DPC sought to arrive at an objective assessment of suitability of Shri N.J. Dalvi for promotion. The Review DPC kept in view that the 'evaluation of ACRs should be fair, just and non-discriminatory. The Review DPC sought to ensure justice in the process of assessment of the ACRS, keeping in view the basic fact that inter-personal comparison is an element of natural justice. It had, therefore, examined the records of Shri N. J. Dalvi and the records of the other officials who were also not found fit by the earlier DPCs in spite of the fact that nothing adverse had been recorded in their ACRs. The Review DPC was not guided by the overall grading that was recorded in the ACRs. It made its own assessment on
the basis of the entries in the ACRs. The Review DPC made its assessment on the basis of assessment made by reporting/ reviewing officers about different attributes, quality of work of the officials. The nature of work done, the knowledge of rule and regulations in general, the ability to apply rules and regulations correctly, the capacity for examining the cases thoroughly and comprehensively, the quality of noting and drafting, etc., by these Assistants were considered and compared by the Review DPC. Considering the nature of reports, thus, as a whole, the DPC graded the performance of Shri N.J. Dalvi as Assistant as ‘Below Average’. He was, therefore, not found fit for promotion to the cadre of Insurance Inspector
While considering the case of Shri N. J. Dalvi for promotion under the quota for the Physically Handicapped the Review DPC arrived at its decisions, as in the case of the others, on the basis of the entries in the ACRs regarding the work performed by the official, the manner of performance, the different attributes for the work and the quality of the work in the cadre of U.D.C. and Assistant. For reasons recorded above, the Review DPC found that the decision of the Review DPC in its meeting held on 6.5.2005 arrived at on bona fide grounds is not required to be modified or altered.”
By the impugned order the learned CCPD held, inter alia, that:
the post was identified for blind persons and the respondent no.2 ought to have been considered by the DPCs of 1997, 1999 and 2001;
the respondent no.2’s ACRs (1975–2004) had no adverse remarks and nothing showed refusal of assigned work; (c) the petitioner itself had assigned him particular work and the DPC knew he was not doing the work of his counterparts, so that, on the ACRs, it was “clearly his disability” because of which he was graded “Below Average”, amounting to discrimination; (d) having promoted him as Assistant, the petitioner could not deny further promotion for not being deployed on an Assistant’s work; and (e) the posts being interchangeable, he could be posted as Superintendent.
Aggrieved by the aforesaid order, the petitioner has preferred the present petition.
Learned counsel for the petitioner submitted that the assessment of an officer’s suitability for promotion falls within the specialized domain of the DPC, and the same principle applies to a Review DPC. He submitted that the DPC is required to assess the record of an officer as a whole and is not bound merely by the absence of an adverse remark in the ACR. He further placed reliance on paragraphs 6.1.2, 6.1.3 and 6.2.1(e) of the DoPT O.M. dated 10.04.1989.
He submitted that the respondent no.2’s candidature had been considered on more than one occasion by the DPCs and the Review DPCs. He submitted that the assessment was made with reference to the same parameters, including the nature of work performed, knowledge and application of rules, ability to examine cases thoroughly and the quality of noting and drafting.
He further submitted that Section 47(2) of PWD Act, only prohibits denial of promotion merely on the ground of disability. It does not, however, empower the learned CCPD to substitute its own assessment of the respondent no.2’s suitability for promotion for that of the DPC.
Per contra, learned counsel for respondent no.2 submitted that the respondent no.2’s case was not based merely on the absence of adverse remarks in his ACRs. He submitted that the respondent no.2 had earlier been promoted in 1992 and was thereafter demoted on account of his disability. He submitted that the petitioner had subsequently conceded its error before the learned CAT, and the promotion was restored retrospectively with effect from 24.09.1993. He submitted that this history was relevant to examine whether the respondent no.2's subsequent assessments were also affected, directly or indirectly, by his disability.
He submitted that, under the applicable norms, a visually impaired officer in the respondent no.2’s position was required to be assisted, but no such assistance was ever provided to the respondent no.2. Despite this, the DPC and Review DPC erred in assessing the respondent no.2 on parameters such as the volume and independent handling of work. He further submitted that the respondent no.2’s performance could not fairly be assessed without taking into account the absence of the assistance which the petitioner itself was required to provide.
He further submitted that the learned CCPD, while exercising its statutory duty under Section 59 of the PWD Act, 1995, examined the assessment of the DPC to determine whether the assessment process itself had placed the respondent no.2 at a disadvantage on account of his disability.
ANALYSIS
I have heard learned counsel for the parties and perused the record.
It is the case of the petitioner that the respondent no.2 was rightly assessed and graded as “Below Average” by the DPCs and, thereafter, by the Review DPCs, on an assessment of his overall performance and suitability and that the learned CCPD erred in concluding that the assessment was influenced by preconceived notions arising from the respondent no.2’s disability and in treating the absence of adverse remarks in the ACRs as determinative of his suitability for promotion. Furthermore, the learned CCPD failed to appreciate the distinction between the absence of adverse remarks in the ACRs and the independent assessment of comparative suitability by the DPCs.
Principal grievance of the respondent no.2 was that his performance was assessed without adequately accounting for the disadvantage arising from his visual impairment and lack of assistance and that the petitioner was required to provide appropriate assistance to a visually impaired employee. In the absence of such assistance the performance of respondent no.2 could not have been fairly assessed on parameters such as the volume and independent handling of work in the same manner as that of an employee who did not suffer from such disability.
There can be no dispute that eligibility for consideration for promotion does not, by itself, confer a right to promotion. It only entitles an employee to consideration in accordance with the applicable rules.
It is relevant to note that the mere absence of adverse remarks in the ACRs cannot, by itself, be treated as determinative of an employee’s suitability for promotion. The DPC is required to undertake an independent assessment of the service record and the entries contained in the ACRs and determine the comparative suitability of the officers under consideration. In this regard, the instructions issued by the DoPT vide O.M. No. 22011/5/86-Estt. (D) Dated 10.04.1989 specifically contemplates an independent and objective assessment by the DPC, based upon the entries contained in the ACRs as a whole. The relevant provisions of the aforesaid O.M. are reproduced below:
“Para 6.1.2: The DPC enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them"
Para 6.1.3: While merit has to be recognized and rewarded, advancement in an officer's career should not be regarded as a matter of course but should be earned by dint of hard work, good conduct and result-oriented performance as reflected in the ACRs and based on strict and rigorous selection process."
Para 6.2.1 (e): The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of entries in the CRs, because it has been noticed that some times, the overall grading in a CR may be inconsistent with the grading under various parameters or attributes."
The Hon’ble Apex Court in Union of India &Anr v. S.K. Goel and Others, (2007) 14 SCC 641, considered the scope of assessment by a DPC and observed that the absence of adverse remarks in the confidential reports, by itself, does not preclude the DPC from making an independent assessment of the suitability and merit of the officer. The Court further held that the DPC is not required to be guided merely by the overall grading recorded in the confidential reports, but is entitled to make its own assessment based on the entries contained therein. The relevant observations of the Court are reproduced below:
“27.In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well-settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. In the present case, DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent no.2 1 did fulfil the benchmark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service and the Customs and Central Excise Service.
28.It was also argued by the learned Senior Counsel appearing for Respondent no.2 1 that the entries for the period had an element of adverse reflection and for that purpose the seniority of Respondent no.2 1 was downgraded and, therefore, ACR ought to have been communicated to Respondent no.2 1. In our opinion, the observations of the High Court are wholly unjustified inasmuch as the post of the Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on the basis of merit. No judicial review of the DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and rules is warranted. The norms and procedure for DPC are prescribed in OM dated 10-4-1989. It is thus seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a government employee. The decision of the Central Government is in strict accordance with the prevailing rules and government instructions. In the absence of any violation, the impugned order of the High Court while undertaking a judicial review under Article 226 of the Constitution of India, is wholly unjustified. Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time. Therefore, in the facts and circumstances of the present case, where there are no adverse remarks whatsoever against Respondent no.2 1, the High Court ought not to have interfered with and passed the impugned direction. This apart, as per the instructions contained in Para 6.21 of DOP&T Order No. 22011/5/86/Estt. D dated 19-4-1981, as amended, DPC is not required to be guided merely by the overall grading, if any, that may be recorded in CRs but to make its own assessment on the basis of the entries in CRs. DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the impugned order of the High Court, in our opinion, is liable to be set.”
In the present case, however, the learned CCPD proceeded on the premise that, in the absence of any adverse remark in the ACRs, the assessment of “Below Average” by the DPCs could not be sustained. Such an approach, however, does not accord with the applicable DoPT instructions or the law governing assessment by a DPC. While the absence of an adverse remark may constitute a relevant circumstance, it does not, by itself, preclude the DPC from making an independent assessment of the officer’s comparative merit and suitability on the basis of the record. The DPCs were, therefore, not required to mechanically adopt the overall grading reflected in the ACRs, nor was the absence of an adverse entry sufficient, by itself, to warrant a finding that the respondent no.2 was fit for promotion.
At the same time, the material placed on record shows that the respondent no.2’s case was considered on more than one occasion by the DPCs and was thereafter reconsidered by the Review DPCs. The Review DPCs, constituted pursuant to the proceedings before the learned CCPD, also assessed the respondent no.2 and arrived at the conclusion that his performance was “Below Average” and that he was not fit for promotion. The minutes of the Review DPCs themselves show that the assessment took into account, inter alia, the nature of work handled by the respondent no.2, his knowledge and application of the relevant rules, his ability to examine cases thoroughly and comprehensively, and the quality of his noting and drafting.
The finding of the learned CCPD that the DPCs were influenced by preconceived notions regarding the respondent no.2’s visual impairment is not borne out by any specific material on record. The impugned order does not identify any observation made by the DPCs, any criterion applied by them, or any part of the assessment which demonstrates that the respondent no.2 was found unsuitable because of his visual impairment. The mere fact that the respondent no.2 was visually impaired and was nevertheless assessed as “Below Average”cannot, in itself, lead to the conclusion that his disability was the reason for the assessment.
It is pertinent to note that Section 47(2) of the PWD Act, does not confer an unconditional right to promotion upon a person with disability. It prohibits denial of promotion merely on the ground of disability. The question, therefore, is whether the respondent no.2 was found unfit on the basis of an assessment of his performance and suitability, or whether his disability itself operated as the ground for such assessment. Section 47(2) of the PWD Act is reproduced below:
“47.(1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service.
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits.
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2)No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”
The scope of the expression ‘merely on the ground of his disability’ has been considered by the Hon’ble Apex Court in Union of India v. Devendra Kumar Pant, (2009) 14 SCC 546. The Hon’ble Apex Court, while examining the expression ‘merely on the ground of his disability’ occurring in Section 47(2) of the PWD Act, held that the provision bars disability per se from being treated as a disqualification for promotion. At the same time, the Hon’ble Apex Court recognised that the statutory protection does not dispense with the requirement of the employee satisfying the standards applicable to the higher post. The material on record shows that the DPCs which considered the respondent no.2’s case assessed him with reference to his service record and the parameters reflected in the relevant minutes. The Review DPCs, upon reconsideration, arrived at the same conclusion. The relevant portion of Union of India v. Devendra Kumar Pant (supra) is reproduced below:
“37.Prescription of a minimum medical standard for promotion should be considered as such, and should not be viewed as denial of a promotional opportunity to a person with disability. We may illustrate. When an advertisement for the post of a police inspector prescribes a minimum height or a minimum chest measurements or a minimum physical stamina, a person who lacks the same and therefore denied appointment, cannot contend that he is discriminated on the ground of physical disability. Firstly, being short or very thin or lacking stamina is not a physical disability but a physical characteristic. Therefore, in such a situation the question of applicability of the Act does not arise at all. If a person not having a colour perception is denied appointment to the post of a driver, he cannot complain that he is discriminated on the ground of his disability. Same would be the position where the colour perception is a required minimum standard for a particular post. A person not possessing it is not being denied appointment or promotion on the ground of disability. The denial is on the ground of non-fulfilment of minimum required standard/qualification. Viewed accordingly, it will be seen that Section 47(2) is not attracted at all.
38.Therefore, we are of the view that Section 47(2) only provides that a person who is otherwise eligible for promotion shall not be denied promotion merely on the ground that he suffers from disability. The use of the words "merely on the ground' shows that the section does not provide that if the disability comes in the way of performing the higher duties and functions associated with the promotional post, promotion shall not be denied. In other words promotion shall not be denied to a person on the ground of his disability only if the disability does not affect his capacity to discharge the higher functions of a promotional post.”
The aforesaid principle is relevant in the present case only to the extent that it distinguishes between denial of promotion merely on account of disability and an assessment of suitability based on standards legitimately applicable to the promotional post.
It is also well settled that, while exercising supervisory jurisdiction, Courts, Tribunals or authorities do not sit in appeal over the assessment made by a duly constituted DPC. Interference is warranted where the decision is vitiated by mala fides, arbitrariness, and non-application of mind, consideration of irrelevant material or violation of a mandatory requirement. Assessment of comparative merit cannot be substituted with a subjective view for that of the body entrusted with such assessment.
Examined in this backdrop, the reasoning adopted by the learned CCPD cannot be sustained to the extent that it treats the absence of adverse remarks in the ACRs as determinative of the respondent no.2’s suitability for promotion. As noticed above, the DPC was required to make its own assessment based on the service record as a whole. The absence of an adverse remark may be a circumstance to be considered, but it cannot, by itself, displace the assessment made by the DPC on the comparative suitability of the respondent no.2.
The second aspect of the impugned order, that the DPCs were influenced by preconceived notions relating to the respondent no.2’s disability, stands on a different footing. The previous demotion of the respondent no.2 on account of his disability is certainly a relevant circumstance. However, the said incident pertains to an earlier stage of his service and was subsequently corrected by the petitioner. It cannot, without further material, lead to an inference that the subsequent DPCs and Review DPCs were similarly influenced by the respondent no.2’s disability.
Significantly, the respondent no.2’s case was considered on successive occasions and was also subjected to review pursuant to the proceedings before the learned CCPD. The Review DPCs also arrived at the conclusion that the respondent no.2’s performance was “Below Average”. There is no specific material placed before this Court demonstrating that the DPCs treated the respondent no.2’s visual impairment as a disqualification for promotion or that any criterion was applied to him solely on account of his disability. In the absence of such material, the finding that the assessment was the result of preconceived notions cannot be sustained merely on inference.
The respondent no.2 has also contended that no helper was provided to him and that his performance could not have been fairly assessed on parameters such as volume and independent handling of work. It is pertinent to note that in respondent no.2’s complaint dated 21.04.2003 and representation dated 14.07.2003 before the learned CCPD, the respondent no.2 has nowhere stated that he had sought a helper and that the request was declined. The impugned order also records no such finding, and the minutes of the Review DPCs also do not refer to any such request. The plea was raised for the first time in the additional affidavit filed in the present proceedings, more than seventeen years after his reversion. In the absence of any material to show that assistance was sought and denied, the respondent no.2 cannot contend that his assessment was vitiated on this ground.
In view of the aforesaid discussion, this Court is of the considered view that the DPCs and the Review DPCs were entitled to undertake an independent assessment of the respondent no.2’s overall performance and comparative suitability for promotion. The absence of adverse remarks in the ACRs did not, by itself, confer upon the respondent no.2 a right to promotion, nor did it preclude the DPCs from recording a “Below Average” assessment based on the service record.
Having regard to the considerable time that has elapsed and the fact that the respondent no.2 has since attained the age of superannuation, a direction for actual promotion would no longer serve any practical purpose, as no specific material has been placed before this Court to demonstrate that the DPCs or the Review DPCs treated his visual impairment as a disqualification or otherwise assessed his suitability on a criterion which was discriminatory on account of his disability.
The previous demotion of the respondent no.2 cannot by itself be treated as proof that the subsequent DPCs acted on the same consideration. Equally, the absence of adverse remarks in the ACRs cannot be treated as sufficient to displace the independent assessment made by the DPCs.
In the absence of any material establishing arbitrariness, perversity, non-application of mind, or that the respondent no.2’s disability was the operative ground for denial of promotion, this Court finds no basis to interfere with the assessment made by the DPCs and the Review DPCs.
The learned CCPD, therefore, erred in treating the absence of adverse remarks as determinative of the respondent no.2’s suitability and in concluding that the assessment had been influenced by the respondent no.2’s disability without identifying any material establishing a nexus between the disability and the assessment made by the DPCs.
In view of the foregoing discussion, this Court is of the considered opinion that the impugned order dated 11.10.2006 cannot be sustained. The impugned order dated 11.10.2006 is, accordingly, set aside. The assessment made by the DPCs and the Review DPCs shall remain undisturbed.
The present petition is, accordingly, allowed in the aforesaid terms. The pending application, if any, also stands disposed of.