Central Administrative Tribunal - Delhi
A.K.S.Rathore vs National Small Industries Corporation ... on 25 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No.1451/2009 New Delhi this the 25th day of March, 2010. Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) A.K.S.Rathore S/o Shri O.P.Singh Rathore, Aged about 50 Yrs, R/o A-128, Sector-21, Noida- 201301. Applicant (By Advocate Shri Dileep Tandon along with Ms. Neha Phookan) VERSUS National Small Industries Corporation Ltd ( A Govt. of India Enterprise) NSIC Bhawan, Okhla Industrial Estate, New Delhi Through its Chairman. Respondent (By Advocate Ms.Shobha along with Mr. Mohindra Thakur and Mr. Prithivi Pal ) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The applicant (presently under suspension) was promoted as Chief General Manager (CGM) in the National Small Industries Corporation Ltd (NSIC), the Respondent herein, on ad hoc basis on 6.09.2001. Meeting of the Departmental Promotion Committee (DPC) was held on 7.07.2003 for selection of CGM on regular basis. The Applicant was not found fit for promotion by the DPC and he was reverted to the post of General Manager (GM) by order dated 2.09.2003. Another DPC, which met on 10.12.2005, also overlooked the Applicant for promotion to the post of CGM. The Applicant was placed under suspension by order dated 2.03.2006 in contemplation of criminal and disciplinary proceeding against the Applicant. The Applicant had approached the Honourable Delhi High Court challenging his reversion to the post of GM from the post of CGM by order dated 2.09.2003 and the order of suspension dated 2.03.2006. The Writ Petition was transferred to this Tribunal by the Honourable Delhi High Court. The learned counsel for the Applicant has not pressed the argument regarding the Applicants suspension. We are, therefore, considering only the aspects relating to the rejection of the Applicant by the DPC for promotion by considering him unfit on the basis of the gradings in the ACRs.
2. In reply to the representations of the Applicant regarding the verdict of the DPC, considering him to be unfit for promotion, the General Manager (HR/Admn.) informed the Applicant by letter dated 25.01.2006 (Annex P-10) that :
With reference to his representation dated 17.1.2006 regarding promotion from General Manager to Chief General Manager ( on selection basis), Shri A.K.S. Rathore, General Manager ( presently functioning as Zonal General Manager North-II) is hereby informed:-
1. As per Recruitment & Promotion Rules (Revised) 1997, the post of Chief General Manager is to be filled up 50% by promotion on selection basis from amongst General Managers having completed probation period and the remaining 50 % by direct recruitment. The vacancy of promotion on selection basis is filled up on the recommendation of Departmental Promotion Committee. The methodology for consideration of DPC is the rating scored by the eligible officer in the Annual Confidential Reports of last five years. Shri Rathore is informed that he was one of the eligible officers considered by the Departmental Promotion Committee during its meetings held on 7.7.2003 and 10.12.2005. On the basis of his rating scored in his ACRs, the DPC did not found him fit for promotion ( on selection basis) to the post of Chief General Manager.
2. As requested a copy of the Recruitment & Promotion Rules (Revised), 1997 is forwarded herewith.
3. So far as the procedure adopted by DPC for such officers who are not cleared from vigilance. Shri Rathore is informed that DPC considers the suitability of the officer for promotion without prejudice to disciplinary/vigilance case pending against the officer under zone of consideration and if found fit the recommendations of the DPC are kept in sealed cover till the case is decided by the competent authority.
On 16.02.2006, the Grievance Officer of the Respondent-NSIC again informed the Applicant that :
4. As regards to point 4 prevailing general guidelines on the issue, only adverse remarks recorded in Annual Confidential Reports are to be communicated and if the officer concerned so wishes to make any representation against the same he could do so within a period of one month which needs to be disposed off in normal course within a period of three months. In the instant case there were no such remarks which needed to be communicated but your ACRs were not found to be meeting the required ratings.
3. We have also perused the records of the DPCs, which met on 7.07.2003 and 10.12.2005. The Applicants gradings in the ACRs for the 1998-99, 1999-2000 and 2000-01 were Above Average in all the three years. His grading for 2000-01 was Outstanding, for 2002-03 Average, for 2003-04 Fair and 2004-05 Good.
4. The learned counsel for the Applicant, relying on the judgment of the Honourable Supreme Court in Dev Dutt V. Union of India, (2008) 8 SCC 725, would contend that the gradings in the ACRs, which were below the prescribed benchmark, should have been communicated to the Applicant and he should have been given an opportunity to represent against such gradings, which were below benchmark.
5. The Respondent-NSIC has seriously challenged the arguments on the Applicants behalf. It is stated that the selection by the DPC, which met on 7.07.2003, was on the basis of the gradings in the ACRs and the performance in the interview, as the post is a selection post. This argument, however, has been shown to be lacking in persuasive power because of the minutes recorded by the subsequent DPC of 2005. The minutes recorded at the outset are that:
(a) Personal interview A clarification was sought whether personal interview would be required. It was informed to the DPC that no personal interview is required, unless specifically provided in the rules. Since NSIC Recruitment & Promotion Rules (Revised) 1997 do not provide for interview, the committee, therefore, based the selection of the eligible candidates on the basis of their ACRs for the last five years The method of interview followed by the DPC in 2003 was without sanction of the rules. It is also not the case of the Respondent that the provision of interview was dispensed with after 2003 by amendment of the Rules. The letter dated 25.01.2006 and 16.02.2006 of the Respondent in reply to the Applicants representation, adverted to above, also make reference only to the rating in the ACR as a reason for the Applicants rejection.
6. The other argument of the learned counsel for the Respondent is that there is a criminal case as well as departmental proceedings pending against the Applicant and hence he cannot be promoted. It is, however, conceded that the charge in the criminal case was framed and the Memorandum of charge in the disciplinary proceedings was communicated only after 2.03.2006. In fact the Applicants suspension order shows that he has been suspended on 2.03.2006 in contemplation of criminal/disciplinary proceedings. It is now well settled (Union of India and Others V. K.V.Janakiraman, (1991) 4 SCC 109)) that a criminal case would be considered to be pending from the date charge is framed against an accused and disciplinary proceedings from the date of communication of Memorandum of charge. Seen thus, there was no criminal/disciplinary proceedings against the Applicant on 7.07.2003 or 10.12.2005. The Respondent cannot smugly rely on this argument.
7. Third, the learned counsel for the Respondent would contend that the Applicant by his note dated 2.12.2003 had given an undertaking that he was withdrawing all the representations made earlier in regard to promotion etc. This was when he was seeking his promotion to some place close to Delhi because of his sons illness. It is argued that this would act as estoppel and the Applicant could not have taken legal remedy regarding his promotion. We do not agree. Such an undertaking cannot prevent the Applicant from approaching this Tribunal. He has also not given any undertaking that he would not approach the Tribunal. The Respondent has also not changed its position with regard to the Applicants promotion because of this undertaking. No estoppel can be claimed.
8. From the stand taken by the Respondent, it is clear that the Applicant has not been considered for promotion because of his ACRs being below the prescribed benchmark. It seems that the benchmark is Very Good and Above Average is considered Very Good by the Respondent. It is, inter alia, recorded in an undated note, which seems to be prior to the DPC of 10.12.2005 that:
As per guidelines (Flag E) the benchmark for Group A post of the level of Rs. 12000-16500 (CDA) attached to Deputy General Manager in the Corporation is Very Good. Thus all candidates who secure overall rating as Outstanding/Exceptional and Very Good/Above Average will be eligible for empanelment according to the merit of their grading.
9. In the result the OA succeeds. The respondent is directed to communicate to the Applicant ACR gradings, which may be below benchmark for consideration for promotion to the post of CGM, for the years for which ACRs were considered. This should be communicated within one month from the receipt of a certified copy of this order. The Applicant, if he so wishes, will represent against the below benchmark remarks within one month of the receipt of the aforesaid communication from the Respondent, which will be considered by the Respondent within one month of the receipt of the Applicants representation. If the grading is upgraded after consideration of the Applicants representation, on par with the benchmark, a review DPC would be convened within one month from the decision of the Respondent about the gradings to consider the case of the Applicant for promotion. Should the Respondent decide to reject the representation of the Applicant, it would be done by passing a speaking order, within one month of the Applicants representation and communicated to the Applicant. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman sk