Central Administrative Tribunal - Delhi
Dr. (Mrs.) Nirmal Singh vs Union Of India Through on 10 August, 2010
Central Administrative Tribunal Principal Bench OA No.43/2010 New Delhi, this the 10th day of August, 2010 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Dr. (Mrs.) Nirmal Singh W/o Dr. U. B. Singh Aged about 62 years, R/o B-19, Sector-26, Noida-201 301. . Applicant. (By Advocate : Shri A. K. Behera) Versus Union of India through 1. Secretary Ministry of Labour Shram Shakti Bhawan, New Delhi 110 001. 2. Director General ESI Corporation Panchdep Bhawan, CIG Road, New Delhi. . Respondents. (By Advocate : Shri Anil Singal) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Dr. (Mrs.) Nirmal Singh, the Applicant herein, who was working as Additional Medical Superintendent in ESI Hospital, Noida, when her promotion to the Senior Administrative Grade (SAG) was denied on the ground that she had failed to fulfill the criteria of the required benchmark for promotion, whereas her juniors were promoted, as a result of which, she approached this Tribunal in OA No.249/2008, which was decided on 15.05.2008 with the following directions :-
9. In the result, for the foregoing reasons, OA stands allowed with a direction to the respondents to communicate the remarks, which fall beyond the benchmark to the applicant within a period of two months from the date of receipt of a copy of this order. On being communicated, applicant shall be accorded an opportunity, if so advised and if chooses to prefer a representation. The representation shall be decided within two months from the date of receipt of representation with a reasoned order. If the entry is upgraded, the applicant shall be considered for promotion by a review DPC to be held within one month from the date of upgradation. On promotion, all the consequential benefits from the date of promotion of the juniors shall be bestowed upon the applicant. Since the applicant has retired, the consequences in form of revision of pension and arrears thereof shall also be accorded. No costs.
2. Consequent to the above judgment, the Applicant was supplied vide letter dated 10.10.2008 (Annexure-A6) copies of Annual Confidential Reports (ACRs) for the year 2000-2001, 2001-2002 and 2002-2003, which, as per the Respondents claim, did not meet the required benchmark of Very Good prescribed for promotion to the post of SAG in the GDMO sub cadre. She was requested to represent on the same. The Applicant did submit her detailed representation vide her letter dated 4.11.2008 (Annexure A-7). This was considered and a decision was communicated to her vide letter dated 2.01.2009 (Annexure A-1) by not only rejecting the request but also stating therein that grading given in ACRs for three years was in order and there was no scope for upgradation of the grading given for the said period. The Applicant retired on 29.02.2009 and having been aggrieved by the order of the Respondents dated 2.01.2009, she is visiting this Tribunal for the second time through the present OA with the following reliefs :-
(i) Call for the records of this case;
(ii) Quash & set aside the impugned order dated 02.01.2009 Annexure A-1.
(iii) Direct the respondents to ignore the ACRs of the applicant for the years 2000-2001, 2001-2002 & 2002-2003 and any other ACR which are below the Bench Mark for considering the applicant for promotion to Grade of SAG w.e.f. 28.12.2005 by holding a Review DPC.
(iv) Direct the respondents to give all consequential benefits to the applicant including arrears of pay & allowances, upward revision of pension and pensionary benefits, etc.;
(v) Direct the respondents to give all consequential benefits to the applicant;
(vi) Direct the respondents to pay the cost of litigation to the applicant;
Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
3. On receipt of notice issued to the Respondents by the Tribunal on 12.01.2010, the Respondents submitted their counter affidavit on 28.04.2010, to which the Applicant filed her rejoinder on 20.05.2010. We finally heard the case on 23.07.2010, when the following records were placed for our perusal:
(i) Confidential Reports of the Applicant for the year/period ending (a) 1.4.2000 to 12.10.2000, (b) 13.10.2000 to 31.3.2001, (c) 1.4.2001 to 31.3.2002, (d) 1.4.2002 to 31.3.2003, (e) 1.4.2003 to 31.3.2004, and (f) 1.4.2004 to 31.3.2004.
(ii) Minutes of the meetings of the DPC for promotion of Medical Officers to the Senior Administrative Grade in the Specialist Sub-Cadre in the ESI Corporation held on (a) 21.12.2005, (b) 24.8.2007, and (c) 6.8.2008.
4.1 Shri A. K. Behera, the learned Counsel for the Applicant, highlighting the background of the case and the humiliation that the Applicant has suffered, as her juniors were promoted, submitted that the below benchmark ACRs for three years were not communicated to the Applicant at the appropriate time when those ACRs were finalized by the Reporting and Reviewing Officers. But these ACRs were communicated to the Applicant only after the intervention of the Tribunal and on receipt of the same, the Applicant could furnish her remarks and the same was rejected by the Respondents vide their order dated 2.01.2009. As the Applicant was in the fag end of her service and the orders coming so late from the Respondents, the Applicant could not be promoted and, therefore, she had claimed the relief to reexamine her case in the light of her prayers.
4.2 Shri Behera contended that as both the Reporting and Reviewing Officers of his ACRs for the year 2000-2001, 2001-2002 and 2002-2003 have already retired from service, the Reporting and Reviewing Officers could not have given their views to the Respondents and the competent authority could not have got their views to pass the final orders on the representations made by the Applicant. Thus, she submitted that the ACRs, as stated herein, should be ignored.
4.3 Further, Shri Behera drew our attention to each ACR and submitted that undisputedly the Reporting Officer has graded the Applicant as Very Good. On the other hand, the review relating to the ACR for the said period was recorded by downgrading the grading to Good by the Reviewing Officer without assigning any reasons. Therefore, he submits that such downgrading should not be taken into account and only the Reporting Officers grading as Very Good should be accepted. In this regard, he relied on the orders of this Tribunal passed in the case of Ram Pyare Versus Union of India & Others (OA No.1015/2009 decided on 25.02.2010), where the Tribunal has concluded that in the event the down grading recorded by the Reviewing Officer gives no reasons thereof, such down graded grading should be ignored and the gradings assigned by the Reporting Officer as Very Good would be valid.
4.4 With regard to the ACRs of other two years, Shri Behera contended that as the Reporting and Reviewing Officers have retired and their comments could not be availed by the competent authority to pass final orders, the ACRs for those two years should be ignored and previous years ACRs meeting the benchmark should be taken into account to find out whether the Applicant was fit for promotion right from the date of the DPC held in 2005 when his juniors were promoted. In this context, he relied on the judgments passed by this Tribunal in the case of O. P. Meena Versus Union of India and Others (OA No.1178/2009) and Dr. Anita Pattnaik Versus New Delhi Municipal Council (OA No.2280/2009).
5. Shri Anil Singal, learned Counsel for the Respondents, opposed the contentions put forward by Shri Behera. He submitted that the Respondents have complied with the directions of the Tribunal in OA No.249/2008 by considering Applicants representation against the below benchmark ACRs and her prayer to upgrade the gradings was considered but the competent authority did not agree to the same. Shri Singal placed for our perusal the ACRs of the Applicant. Those ACRs are for the period from 1.4.2000 to 31.3.2005. He also furnished the minutes of the DPC meeting held on 21.2.2005 for promotion of Medical Officers to the Senior Administrative Grade (SAG) in the Specialist Sub Cadre in the ESI Corporation where she was assigned as Unfit. She was assessed as fit in the DPC held in 2008 but by that time the Applicant had retired and as such she could not be promoted. Shri Singal also clarified that the Reporting Officers and Reviewing Officers of the Applicants ACRs having retired 4 to 6 years back, and their remarks on the representation of the Applicant on the below benchmark grading could not be obtained. His contention is that prior to DOPT OM dated 18.2.2008 there was provision that a candidate could be found fit for promotion if the criteria should meet 4 Very Good grading in the ACRs of 5 years. As per the DOPT OM dated 18.2.2008, the criteria has been changed to all 5 years benchmark of Very Good should be fulfilled for promotion to SAG. His contention is that as per both criteria, the Applicant while in service could not fulfill the required benchmark. Hence, she was declared Unfit by the DPC. In view of his above contentions, Shri Singal submitted that the OA was fit to be dismissed on merits.
6. Having heard the rival contentions, we perused the pleadings. The Original records produced by the Counsel for the Respondents were carefully scrutinized. The following issues come up before us for our adjudication:
* Whether the Applicants ACRs being below benchmark and initially not communicated but later on communicated when the Reporting and Reviewing Officers have retired, such gradings should be ignored?
* Whether downgrading of the ACR from Very Good to Good by the Reporting Officer where the reasons are not assigned by the Reviewing Officer should be ignored and only the grading assigned by the Reporting Officer to be accepted?
* Whether the Respondents need to be directed to conduct a review DPC for the year 2004-2005 and for subsequent years till she retired in February, 2008?
* If the Applicant becomes eligible as per the Review DPC recommendations, whether she would be entitled to get pay fixation from the date on which her juniors were promoted or same should be notionally fixed and revision of pension is to be carried out?
7. As these issues are interlinked, instead of addressing the issues separately, we consider all these together. Before we examine the facts on ACRs and DPC and the settled legal position, we perused the pleadings and carefully considered the rival arguments from which the following admitted and undisputed facts emerged :-
The Applicant was working under the Respondent Corporation as Deputy Medical Superintendent in JAG (NFSG).
She was not promoted to the Senior Administrative Grade (SAG) while her juniors were promoted vide order dated 28.12.2005 (from serial 2 onwards are her juniors).
Against the denial of promotion, the Applicant represented which was rejected vide the order dated 15.03.2007 on the ground that she did not fulfill the required benchmark for promotion.
Admittedly, she was not communicated any below benchmark ACRs at that point of time.
She moved the Tribunal in OA No.249 of 2008, which was decided on 15.5.2008 with direction to the Respondents to communicate the below benchmark ACRs, allowing the Applicant to represent.
On receipt of the copy of 3 years ACRs from the Respondents, she submitted her representation on 3 years ACRs (2000-2001, 2001-2002 and 2002-2003) which was rejected by Respondents on 2.1.2009.
Admittedly the views of the Reporting Officers and Reviewing Officers on the Applicants representation against the below benchmark and downgraded ACRs, were not available for the competent authority to decide.
Prior to 18.2.2008, the extant guidelines provided candidates under consideration should meet Very Good grading in the 4 years ACRs out of 5 years ACRs.
With effect from 18.2.2008, the guidelines were changed and prescribed that all 5 years grading should meet the Benchmark of Very Good.
DPC meeting was held on 21.2.2005 where 5 vacancies for SAG grade (2004-05 one vacancy and 2005-06 four vacancies) were considered. The candidates having grading of Very Good in 4 out of 5 years ACRs were declared fit for promotion.
DPC meeting held on 24.8.2007 considered candidates for 3 vacancies of 2007-08 and the benchmark for promotion to SAG was 4 Very Good during the preceding 5 years.
Both DPCs declared the Applicant as Unfit for promotion to SAG.
The DPC meeting held on 6.8.2008 declared her fit but by that time she had retired. The Applicant retired on 29.2.2008 She filed the present OA on 6.01.2010.
8. The Respondents have submitted the original minutes of 3 DPC meetings for promotion of Medical Officers to the Senior Administrative Grade in the Specialist cadre in the ESI Corporation. These minutes reveal the following :-
The DPC meeting held on 21.12.2005 inter alia considered the case of the Applicant at Sl. No.3 where the vacancies for the year 2004-2005 (one vacancy) and for the year 2005-2006 (4 vacancies) were considered. For both the years, the Applicant was also considered and declared her as Unfit. It is noted that no separate Panel for 2004-05 and 2005-06 has been drawn up. But a combined Panel was approved by the DPC. The Select Panel has 5 officers, out of which, only one officer [Dr.(Mrs.) Urmil Maitre] was senior to the Applicant.
The DPC meeting held on 24.08.2007 considered the Applicants name at Sl. No.1 and assessed her as Unfit. 3 vacancies for the year 2007-2008 were considered by the DPC. Three officers placed in the Select Panel were junior to the Applicant.
DPC meeting held on 6.08.2008 considered the vacancies for the year 2007-08 and 2008-09. The separate Panel for each year was drawn. The Applicant was considered only for the Panel year 2007-08. Though the Applicant was declared at Sl No.1 as Fit but it was recorded also that she had retired in February,2 008.
9. The Confidential Report of the Applicant was assessed by each of the DPCs and the following gradings were taken for consideration to declare the Applicant as Fit or Unfit.
DPC held on Year Remarks I. 21.12.2005 1999-2000 Very Good 2000-2001 Good 2001-2002 Good 2002-2003 Good 2003-2004 Very Good Vacancy year 2004-05 and 2005-06 Overall assessment Unfit II. 24.08.2007 2000-2001 Good 2001-2002 Good 2002-2003 Good 2003-2004 Very Good 2004-2005 Very Good 2005-2006 Very Good Vacancy year 2007-08 Overall assessment Unfit III. 6.08.2008 2001-2002 Good 2002-2003 Good 2003-2004 Very Good 2004-2005 Very Good 2005-2006 Very Good Vacancy year 2007-2008 and 2008-09 Overall assessment Fit (Retired in February 2008) for the year 2007-08
10. We note from the above that only one vacancy being there for the year 2004-05, the Applicant senior being found fit empanelled and promoted, no prejudice has been caused to the Applicant. But for the vacancy year 2005-06 with 4 vacancies, it is relevant to note that the Applicant was at Sl. No.1 for the vacancy year 2005-06 and the Applicants case though considered, was assessed as unfit and the following ACRs were considered.
Period Assessment grading by Assessment grading Reporting Officer Reviewing Officer I. 2000-2001 1.4.2000 to 12.10.2000 Very Good Good 13.10.2000 to 31.3.2001 Good Good II. 2001-2002 Good Good III. 2002-2003 Good Good IV. 2003-2004 Very Good Very Good V. 2004-2005 Good Very Good
11. We now advert to the settled position in law on the issues coming up before us for our consideration and determination.
12. With regard to the below benchmark and downgrading of ACRs, it is now legally well settled principle in the service jurisprudence that any grading in the Annual Confidential Report of an employee of the Government, (a) which is below the benchmark prescribed for promotion to a higher grade in the employees service; and (b) in case the Reviewing/Accepting Authority has down graded the grading given by the Reporting Authority, such ACR would be considered to be adverse remark. On the other hand, as per the extant practice if the Reviewing/Accepting Authority has upgraded the grading of the ACR which meets the benchmark prescribed for promotion the grading assigned by the Reviewing/Accepting Authority is considered by the DPC. In the context of below benchmark grading, the Honble Apex Court in U. P. Jal Nigam Versus Prabhat Chandra Jain reported in JT 1996 (1) SC 641 (para 3) laid the ratio that any grading which has adverse civil consequences for an employee should be considered as adverse remark/grading. If the grading given to an officer is Good and the benchmark is Very Good (this is the case in the present OA) and is not considered Fit for promotion on the basis of such grading that being below the prescribed benchmark should be considered as adverse grading. We take the extract of the Para 3 of the judgment of the Honble Supreme Court in U. P. Jal Nigam case (supra), which reads as follows :-
3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. (emphasis supplied)
13. Though the above decision of the Apex Court remained confined to the employees of the U.P. Jal Nigam, the Honble Supreme Court in Dev Dutt Versus Union of India and Others [2008 (8) SCC 725] has taken up similar issues and in an elaborate judgment in a comprehensive manner decided that irrespective of the grading the employees should be given the ACRs in order to represent if they feel like against any of the entries to ensure fairness and transparency in administration. In Dev Dutt case (supra), the Honourable Supreme Court lays the law that non communication of below benchmark ACR is not only denial of opportunity to the employee but also illegal. We take the extract of paragraphs 10, 11 and 45 of the judgment which read as follows "10. In the present case the bench-mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appel-lant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the re-spondent are distinguishable."
.. 45. In our opinion, non-communication of entries in the Annual Confidential Re-port of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances fo promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
14. In Dev Dutt case (supra) the Honourable Apex Court developing the new principles of natural justice has held that fairness and transparency in public administration requires that all en-tries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant must be communicated to him within a reasonable period so that he can make a representation for its up gradation. This in the opinion of the Honourable Apex Court is the correct legal position even though there may be no Rule / Government Orders requiring communica-tion of the entry, or even if there is a Rule / Government Order prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution requires such communication and Article 14 overrides all rules or gov-ernment orders. The same view was reiterated by the Honble Supreme Court in the case of Abhijit Ghosh Dastidar versus Union of India & Others decided on 22.10.2008 (Civil Appeal No.6227/2008).
15. Let us examine the legal position with regard to downgraded grading ACRs. A Larger Bench of this Tribunal considered the issue of downgrading of the grades by the Reviewing Officer in A. K. Aneja versus Union of India & Ors. decided on 7.05.2008 in OA NO.24/2007. In the said case, the Tribunal held that although the Reporting Officer had recorded Very Good grading, yet the officer reviewing the ACR had downgraded it to Good, which was below the bench mark of Very Good prescribed for promotion. The Tribunal took a view that such grading in the ACR was decidedly an adverse remark/grading and should be communicated to the Applicant, in that case, his representation be obtained and considered. The present case in this OA exposes that one of the ACRs were downgraded and as such the dicta in A. K. Aneja case (supra), would be applicable. We take the extract of Para 24 of the judgment which reads as follows :-
24. We have to presume that adopting a routine procedure; the downgrading of the entry for the year 2002-2003 brought about in respect of the applicant might have been for reasons, which have been considered as germane, adequate and relevant by the reporting authority. We can give them that much credit. In other words, he/she was of a definite opinion that markedly there occurred deficiency on the side of the applicant, either in the matter of work or conduct. When this surfaced, an assessment necessarily was to be incorporated in the service records as a truthful entry. On a corollary, if he had been maintaining his efficiency, there would not have been necessity for a downgrading. He was graded, therefore, as `Good. Although the term `Good cannot be considered as having a negative aura, the circumstances that it had replaced `Very Good amounted to downgrading, it was presumably for lapses detected, and necessarily it was, therefore, to be considered as adverse. The assessment Very Good, Good and Average are expressions, given in a nutshell, and it precedes opinions formed after a meticulous consideration. If the officer thought it fit not to give `Very Good and `Good alone, the opinion might have been formed only by a fall in the efficiency of the officer, of which he might not have been aware even. If the opinions formed were adverse, then alone, the final entry would have been the one, which in a syllable or two reflected the fall. Therefore, presence of adverse entries necessarily has to be inferred as available in the records. If that be so, the person concerned was not to be kept in dark about the assessment, we feel.
16. Shri A. K. Behera, the Counsel for the Applicant relied on the judgment of this Tribunal in Ram Pyare Versus Union of India and Otherss (OA No.1015/2009 decided on 25.02.2010) where one of us [Dr. Ramesh Chandar Panda, Member (A)] authored the orders, reliance was placed on the orders in the case of Shri Krishna Mohan Dixit Versus Union of India and Others in OA No.586/2009 decided on 25.8.2009 was relied on. We find that the issues involved in the present OA are similar to the said judgment Ram Pyare case (supra). In Shri Krishna Mohan Dixit (supra) the non-communicated below benchmark and downgraded ACRs were directed to be ignored and to consider the ACRs of preceding years. In Shri Krishna Mohan Dixit case (supra), reliance was placed on the orders passed by this Tribunal in Shri Sanjay Kumar Versus Union of India and others, decided on 5.08.2009, in which, after considering the judicial precedents of Abhijit Ghosh Dastidar (supra), this Tribunal took the view that the ACR for the year in which a grading of `Good was recorded in respect of the applicant therein, should not be considered. In Shri Sanjay Kumar case (supra), the Tribunal has also considered the OM dated 12.10.1990 of the DOP&T which prescribes that the DPC should consider ACRs for equal number of years in respect of all officers considered for promotion. In Shri Krishna Mohan Dixit case (supra), the Tribunal had directed that the DPC should go back to preceding years and consider the ACR of the Applicant, which does not contain any un-communicated below benchmark and downgraded ACRs.
17. The well settled legal position as spelt out by us was also taken up by this Tribunal in OA No.1142/2009 in the case of Ranjana Kale Vs. Chief Economic Adviser and another, in which placing reliance on the judgment as cited by us within namely Ashok Kumar Aneja (supra), Dev Dutt (supra), this Tribunal directed vide its order dated 10.09.2009 that the Respondents would communicate to the Applicant all such ACRs which may be below benchmark and considered by the DPC for promotion to Senior Administrative Grade and the Applicant would have a right to make representation against such reports which should be disposed of by the Respondents. If such reports are upgraded commensurate to the benchmark, review DPC should be convened within a month therefrom, wherein the Applicant would be considered for promotion to the post of Senior Administrative Grade. In Ranjana Kale case (supra) a Writ was filed before the Honble High Court of Delhi which was considered in the WP(C) No.13488/2009 and decided on 1.7.2010 in which the below benchmark issue decided in above terms by the Tribunal became the subject of adjudication. After hearing the parties, the Honble High Court of Delhi passed the following order :-
3. The case of the petitioner is fully covered by the judgment delivered in the case of V. K. Singhal (supra) as also in the case of Abhijit Ghosh Dastidar Vs. UOI & Ors. Delivered by the Honble Supreme Court in Civil Appeal No.6227/2008.
4. In these circumstances, we find it appropriate to modify the order of the Tribunal dated 10.09.2009 to the extent that instead of asking the petitioner to submit a representation and then pass orders about his ACRs for the year 2004-05 & 2005-06, the respondents will consider the issue of promotion of petitioner by convening a review DPC by taking into consideration the ACRs for the year 2000-01, 2001-02, 2002-03, 2003-04 & 2006-07 by ignoring ACRs of the two years namely 2004-05 & 2005-06.
18. Similar is the case in the present OA, where in the earlier order the Tribunal directed Respondents to communicate the below benchmark ACRs for soliciting representation from the Applicant. Consequently, the Respondents sent three years ACR 2000-2001, 2001-2002 and 2002-2003, to the Applicant on which the representations were received by the Respondents and the competent authority rejected the same and allowed the below benchmark gradings continuing for those 3 year ACRs.
19. The Honble High Courts direction is fully applicable in the present case where the Respondents have rejected the below benchmark ACR which was not earlier communicated and when communicated later on and the representations received, without the comments and view of the Reporting and Reviewing Officers, the Respondents maintained same below benchmark grading. We, therefore, are of the considered opinion that the ratio already laid in various judgments as cited within and the law reiterated by the Honble High Court of Delhi in its latest judgment of 1.7.2010 in the case of Ranjana Kale (supra) we have to direct the Respondents in the current OA to (a) ignore the ACRs of the Applicant for the year 2001-02 and 2002-03 and (b) to maintain the Very Good grading assigned in the ACR for the year 2000-01 (where the Reviewing Officer by downgrading has not given any reason).
20. In normal practice, when adverse remark or below benchmark grading or downgraded ACR is communicated to the officer who has received such remarks in his ACR, he submits the representation against such remarks to the Authority immediately superior to the Countersigning Authority. In 3 tier Confidential Report Assessment System, there are Reporting, Reviewing and Accepting Authorities. In a 2 tier assessment system there are Reporting and Reviewing Authorities, and no Accepting Authority. Thus, the countersigning Authority in such a system will be the Accepting Authority or Reviewing Authority. Therefore, the representation would lie to an authority who is superior to the countersigning authority (Accepting Authority or Reviewing Authority as the case may be). In case of the adverse remarks or below benchmark or downgraded grading in the ACR, where either the Reviewing or the Accepting Authority or both have not given their assessment on the officer, but only Reporting Authoritys grading exist in such an event, the superior to the Authority who has reported on the officer would be competent to receive the representation against such remarks. In Dev Dutt case (supra) Honble Supreme Court has observed that below benchmark ACRs have all the impact and civil consequences as that of the adverse remarks in the ACRs and, therefore, the concerned affected officer is entitled to not only receive the ACRs but has a right to represent on the same for consideration of the Competent Authority. This Tribunal in a Larger Bench in Ashok Kumar Aneja case (supra) has also decided that even the downgrading of the ACRs would have same purport and impact as that of adverse remarks in the ACRs of the officer. In these two situations (i.e. below benchmark or downgraded ACRs), the impact will be that of the adverse remarks and, therefore, the procedure prescribed by the Government for the adverse remarks must apply to such situation. It is appropriate for us to mention that the normal practice is that when a representation is received on such adverse remarks or below benchmark or downgraded ACRs, the same has to be transmitted to the officers who have reported/reviewed/accepted the performance assessment of the officer, offer their comments and observations if any on the said representation and thereafter, the authority superior to the countersigning authority would consider all aspects (the relevant ACR, representation of the officer, and the comments of the authorities who have reported , reviewed or accepted the ACR assessments) and take a final decision. In most of the cases, the Authority superior to the countersigning authority may not have an opportunity to know the performance of the officer who would submit his representation. Therefore, he would normally wait to receive comments on the representation, take into account such comments and observations received from the Reporting, Reviewing and Accepting Authorities and finally pass his well considered order. If the Reporting, Reviewing and Accepting Authorities or any of them have retired or are not available for any other reason to offer their comments and observations on the representation, it would be futile exercise to submit the representation to authority superior to the countersigning authority who may not have direct knowledge on the performance of the officer. The question is how and in what manner he would offer his decision in the matters of the officers representation. In this background only, the Tribunal in case of Shri Krishna Mohan Dixit Versus Union of India and Others (OA No.586/2009 decided on 25.8.2009), it was decided that such ACRs should be ignored and the previous years ACRs should be taken into account for consideration for promotion of the concerned officer. The same view was taken by the Honble Apex Court in the case of Abhijit Ghosh Dastidar case (supra) and by the Honble High Court of Delhi in Ranjana Kale case (supra).
21. Taking into account the facts and circumstances of the case, and the settled legal position on the issues dwelt within, we come to the considered conclusion that the Respondents have erred in the case of the Applicant insofar as her promotion to the SAG grade is concerned. Applicant having not been communicated initially with the below benchmark and downgraded ACRs, has not been given an opportunity to represent against the same and thereafter communicating those 3 years ACRs when Reporting and Reviewing Officers have retired, the action of the Respondent has prejudiced her and put her to the disadvantage over his juniors who were declared Fit. The Applicant succeeds insofar as the issues flagged by us in Paragraph 6 within.
22. Therefore, taking into account our above analysis, observations and directions; the settled legal position and relying on the judgment we direct the Respondents to adopt the following procedure in the present case:-
The Respondents are directed to ignore the below benchmark ACRs for the year 2001-02 and 2002-03;
to ignore the downgraded gradings given by the Reviewing Officer for the year 2000-01 and consider only the Very Good grading given by the Reporting Officer;
to consider ACR of earlier years in place of the below benchmark ACRs;
to convene Review DPC within a period of two months to find out the suitability and fitness of the Applicant to the SAG for the vacancy/ Panel year 2004-05 and subsequent years;
in the event, the Applicant gets selected and is found fit for promotion to the SAG level, she would be eligible to get her promotion w.e.f. the date on which her immediate juniors were promoted; and she would be entitled to all consequential benefits in respect of her seniority, pay and allowances and revised retiral dues, which shall be paid within 2 months after the review DPC meeting date.
23. In the result, in terms of the above directions, the Original Application having merits is allowed, leaving the parties to bear their own costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
/pj/