Central Administrative Tribunal - Delhi
Raj Bahadur vs M/O Finance on 17 December, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2218/2013
MA No. 3427/2013
Reserved on: 03.12.2015
Pronounced on: 17.12.2015
Hon'ble Mr. A. K. Bhardwaj, Member (J)
Hon'ble Dr. B. K. Sinha, Member (A)
Raj Bahadur,
Retired - Income Tax Officer (TRO)
Income Tax Office,
Dehradun (Uttarakhand)
R/o K-3311, Shashtri Nagar,
Meerut (UP). ...Applicant
(Applicant in person)
Versus
1. Union of India through Secretary,
Ministry of Finance,
North Block, Central Secretariat,
New Delhi.
2. The Central Board of Direct Taxes
through Chairman,
North Block, Central Secretariat,
New Delhi.
3. The UPSC through Chairman,
Dholpur House, Shahjahan Road,
New Delhi.
4. Shri B.K. Mistri,
Joint Commissioner of Income
Tax-Range-5,
Office Saraf Chamber Mount
Road Extn., Nagpur
Maharashtra - 440 001. ...Respondents
(By Advocate: Shri R.N. Singh)
ORDER
By Dr. B.K. Sinha, Member (A):
In the instant Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant assails 2 order dated 27.01.2011 informing that the review DPC held on 22.12.2010 found him 'unfit' for promotion to the post of Income Tax Officer with effect from the year 1990 and 1992 respectively. The applicant further assails the communication dated 15.03.2011 rejecting his representation dated 03.01.2011 against the decision of the review DPC dated 22.12.2010.
2. The applicant has prayed for the following relief(s):-
i) To quash and set aside order dated 27.1.11 at A-1 & dated 15.3.11 A-2 and further direct the respondents to hold the review DPC and to consider the name of the applicant and if found fit then promoted to the post of Income Tax Officer with effect from 1990-1991 ignoring the adverse remarks recorded in the ACRs in the year 1985-86 and 1986-87 with all consequential benefit including seniority and promotion and pay and allowance and all retiral benefits.
ii) Any other relief which this Hon'ble Court deemed fit and proper may also be awarded to the applicant.
3. Claim of the applicant has been rebutted by the respondents by means of counter affidavit to which the applicant has also filed a rejoinder. The applicant appearing in person made oral submissions followed by submissions in writing. For the sake of brevity, we confine ourselves to the submissions made by the applicant orally. In this regard, we have also considered the representation made by the applicant on 10.02.2011 against the decision of the review DPC dated 22.12.2010.
3
4. The first limb of the argument of the applicant is that as per the decisions in Badrinath v. Govt. of Tamilnadu & Ors. [2000 (8) SCC 395], Brij Nath Pandey v. State of U.P. [2001 (9) SCC 398] and Rajasthan State Road Transport Corpn. & Ors. V. Babu Lal Jangi [Civil Appeal No. 8245/2013 arising out of SLP (Civil) No.17760/2013] decided on 16.09.2013], the adverse entries relating to the year 1985-86 and 1986-87 had lost their sting w.e.f. 01.01.1989 by crossing of Efficiency Bar.
5. The second submission of the applicant is that the chargesheet covering the adverse remarks pertaining to the year 1985-86 and 1986-87 had ultimately ended into his complete exoneration and, thus, the adverse remarks lost their relevance, yet the same have been taken into account by the review DPC (para 5.5 and 5.7 of the OA page 15 & 16 of the paper book).
6. Third limb of the argument of the applicant is that the offending remarks pertaining to the year 1985-86 and 1986- 87 had never been communicated to him. Thus, according to the decision of the Hon'ble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India & Others [2009 (16) SCC 146], they ought not have been reckoned by the review DPC held on 22.12.2010 or in the earlier DPCs. 4
7. The respondents have filed their counter affidavit wherein they have raised the ground of limitation. They further submitted that the review DPC had considered the claim of the applicant for promotion in its meeting held on 22.12.2010 and found that he had been awarded adverse remarks in F.Y. 1985-86 and 1986-87, but the relevant documents before the DPC did not show that the adverse entries at later stage had been expunged (page 66 of the paper book). The applicant had been asked to verify as to whether adverse entries relating to the year 1985-86 and 1986-87 had been expunged and, if so, to file the documentary evidence that were in his possession. The applicant submitted that there was no such documentary evidence in his possession. Examination of applicant's record for promotion to the post of ITO for the year 1992 had been done by the DPC which found an adverse entry awarded in the year 1986-87 against the applicant besides a recordable warning in the year 1991. It was on this basis the DPC did not find the applicant 'fit' for promotion.
8. We have carefully considered the pleadings of the rival parties and gone through the proceedings of the DPC. The sole issue for our consideration is that whether the case of the applicant had been considered strictly within the four corners of the directives of the Hon'ble High Court of Delhi 5 contained in its order dated 06.09.2010 passed in WP(C) 4336/2008.
9. Before taking up the issue for consideration, we have to have necessary backdrop of the case. The case of the applicant is that he had been appointed as Income Tax Inspector in the year 1979 and was confirmed in the year 1985 after having cleared all the departmental examinations following which he was also allowed to cross the Efficiency Bar in 1989. In 1990, the applicant passed the departmental examination thereby becoming eligible for promotion as Income Tax Officer (hereinafter referred to as ITO). However, a chargesheet was issued to him on 15.10.1986 under Rule 14 of the CCS (CCA) Rules, 1965 but was exonerated vide order dated 31.03.1993 and accordingly his ACR gradings were corrected. The applicant further submits that the DPC met thrice on 05.04.1990, March, 1991 and 10.02.1992 to consider the candidature of eligible officers for promotion to the post of ITO including the applicant and rejected his claim on each of the three occasions. However, the DPC held in the year 1993 found the applicant 'fit' and promoted him as ITO w.e.f. 11.06.1993 along with respondent no.5 (respondent no.4 herein), who was junior to him but had been made senior by placing him 352 names above the applicant in the gradation list of ITOs 6 on all India basis. The applicant kept on approaching this Tribunal by filing Original Applications including OA No. 596/2006, which was dismissed by this Tribunal, vide order dated 05.06.2007. Aggrieved, the applicant filed RA No. 195/2007 which was also dismissed vide order dated 20.11.2007. The applicant thereafter filed WP(C) No.4336/2008 before the Hon'ble High Court of Delhi which was decided vide order dated 06.09.2010 setting aside the order of the Tribunal in RA No.195/2007 with a direction to the respondents to convene a review DPC to consider the candidature of the applicant with effect from the date the person junior to him was promoted with respect to revised ACR grading which found entry in the ACR proforma after the adverse remarks were expunged.
10. We take note of the decision of the Hon'ble High Court of Delhi dated 06.09.2010 wherein it has been held as under:-
"The grievance of the petitioner was that his candidature for promotion was considered with respect to adverse entries in his ACR grading pertaining to the year 1990. A charge memo was issued to him and ultimately he was exonerated on 31.03.1993. Not only was he exonerated but the adverse remarks in the ACR grading were corrected. The petitioner claimed a right for a review DPC to be convened."
The Hon'ble High Court further directed as under:-
"Accordingly, we dispose of the writ petition issuing a direction to the respondent to consider the claim of the petitioner for promotion as an ITO by convening a review DPC as on the date the person junior to the petitioner was promoted. The review DPC shall 7 consider the candidature of the petitioner with respect to the revised ACR gradings which found entry in the ACR proforma after the adverse notings were expunged."
11. We find the following points emerging out from the direction of the Hon'ble High Court's above decision:-
i) A review DPC has to be convened to consider the claim of the applicant for promotion as an ITO from the date the person junior to him was prompted;
ii) The review DPC shall consider the case of the applicant with respect to the revised ACR gradings which found entries in the ACR proforma after the adverse notings had been expunged.
iii) The case of limitation would not apply to the facts of this case as the applicant had learnt regarding what had happened only in the year 2003 (para 5, 6 & 7 of the High Court page 27 of the paper book)
12. We further find that consideration of the DPC is based on certain number of assumptions one of which was that the ACR had been communicated and confirmed; the applicant had been issued chargesheet on 15.10.1986 and the disciplinary proceedings continued till 31.03.1993 when he had been absolved of all charges by the order of the CCIT, Kanpur; the applicant was not in a position to produce any letter/communication showing that the offending ACRs had 8 been expunged; and the DPC did not find any entry to that effect. The DPC, therefore, noted as under:-
"As per directions given by the Hon'ble High Court in para No.9, this review DPC considered the official's claim for promotion to the post of ITO in the year 1990 wherein he was first considered for promotion as per seniority list (below the name of Shri S.N. Bajpai and above the name of Shri A.R. Gautam). The ACR of last 5 years of the official are as under:-
1984-85 1985-86 1986-87 1987-88 1988-89 Very Good Adverse Adverse Good Very Good
13. The DPC, in view of the circumstances discussed above, found the applicant unfit for promotion as ITO for the year 1992. For the sake of greater clarity, the relevant portion is reproduced as under:-
"In order to meet the standard of fairness and equity, a letter was also written by the office of the Chief Commissioner of Income Tax (CCA), Kanpur to Shri Raj Bahadur wherein he was requested to clarify as to whether adverse entry relating to F.Y. 1986-87 was expunged or not and, if so, then to file the documentary evidence in this regard. The official has responded to this letter and had stated that no such type of record was in his possession. He however added that he should be provided with the contents of the adverse remarks which has been recorded in the ACR for F.Y. 1986-87, so that he may know the relevancy of the same in connection with DPC. The DPC has considered the official's request but the facts who that adverse remarks for F.Y. 1986-87 has already been communicated to the official. The DPC has perused the relevant ACR, minutes of earlier DPC and the vigilance and other files of the official. The DPC has not found any entry/correspondence, which show or even indicate that adverse entry for F.. 1986-87 has been expunged at any stage. Therefore, the DPC has come to the conclusion that adverse remarks were certainly communicated to the official and confirmed by the Chief Commissioner of Income Tax as is evident from the Minutes of the DPC held on 05.04.2010. The noting 'Confirmed' in the original ACR of the official for F.Y. 1986-87 also substantiates the fact that official's representation was considered and adverse remarks were upheld after due consideration.9
The Hon'ble High Court in its order dated 06.09.2010 in para no.10 has also observed as under:-
"Before concluding, we note that the petitioner earned promotion in the year 1993 and claims a right to be promoted an year prior thereto i.e. the year 1992 when respondent no.5, a person junior to the petitioner was promoted."
From perusal of above observation of Hon'ble High Court, it transpires that the official had claimed a right to be promoted in the year 1992 when respondent no.5, the person junior to the official was promoted. As per the directions given in Para No.10 of the Hon'ble High Court's Order dated 06.09.2010, the claim of the official to be promoted in the year 1992 was also considered by reviewing the minutes of the DPC held on 10.02.1992. The relevant years for consideration of ACRs for the DPC held in year 1992 are as under:-
1986-87 1987-88 1988-89 1989-90 1990-91 Adverse Good Very Good Good Very Good In the above 5 years again there is an adverse entry awarded to the official in the year 1986-87 which, as discussed above, have been confirmed. The scrutiny of the ACR foler for F.Y.1990-91 also show that a recordable warning has been issued to Shri Raj Bahadur by the President of India vide Memorandum F.No. C-14011/73/90-V&L dated Nil for violation of Rule-20 of CCS (Conduct) Rules, 1964. This warning pertains to the period relating to year 1990-91 and the copy of Memorandum is placed with ACR of F.Y. 1990- 91, which has been conveyed to the official also and the copy of the same has been placed in the CR folder for F.Y. 1990-91.
After considering the ACR and other documents placed before the Review DPC, it has come to the conclusion that Shri Raj Bahadur is not 'Fit' for promotion in the year 1990 & 1992. He is, therefore, regarded as 'Unfit' for promotion to the post of ITO in the year 1990 & 1992."
14. From the above it is quite clear that the DPC had proceeded on the assumption that adverse entries and the proceedings against the applicant had been expunged by the order of the CCIT, Kanpur dated 31.03.1993 and before that adverse entries continued to exist on account of which the applicant could not be promoted in the year 1992. 10
15. We also take note of the fact that the applicant has placed reliance upon the case of Badrinath V/s. Govt. of Tamilnadu (supra) wherein the petitioner, who was an IAS officer, was found not suitable for promotion to super-time scale by the Committee met on 09.06.1977 and 28.06.1977 as four disciplinary cases had been pending against him at the time of his consideration for promotion. The Committee observed that out of four cases, one had been disposed of with a decision not to proceed with further action. Of the remaining three, it was said that in one a censure had been recommended to the UPSC. The other two cases were pending, in one of these two, the enquiry officer had recommended reduction to maximum of the senior time scale for two years. It is on these grounds that the appellant had not been recommended on 28.06.1977 with a stipulation that he would be considered as soon as two disciplinary cases were over, the matter could be re- considered. However, during the President's ruling, the Governor ordered dropping of three disciplinary cases including the one which was treated as pending. Besides there was issue of adverse remarks against the appellant, the Hon'ble Supreme Court decided the issue conclusively, which reads as under:-
"57. The above sentence in Gurdas Singh (1998 AIR SCW 1425 : AIR 1998 SC 1661 : 1998 Lab IC 1401) needs to be explained in the context of the Bench 11 accepting the three Judge Bench ruling in Baikunth Nath Das, (1992 AIR SCW 793 : AIR 1992 SC 1020 :
1992 Lab IC 945). Firstly, this last observation in Gurdas Singh's case does not go against the general principle laid down in Baikunth Nath Das to the effect that though adverse remarks prior to an earlier promotion can be taken into account, they would have lost their 'sting'. Secondly, there is a special fact in Gurdas Singh's case, namely, that the adverse remarks prior to the earlier promotion related to his "dishonesty". In a case relating to compulsory retirement therefore, the sting in adverse remarks relating to dishonesty prior to an earlier promotion cannot be said to be absolutely wiped out. The fact also remains that in Gurdas Singh's case there were other adverse remarks also even after the earlier promotion, regarding dishonesty though they were not communicated. We do not think that Gurdas Singh is an authority to say that adverse remarks before a promotion however remote could be given full weight in all situations irrespective of whether they related to dishonesty or otherwise. As pointed in the three Judge Bench case in Baikunth Nath Das, which was followed in Gurdas Singh they can be kept in mind but not given the normal weight which could have otherwise been given to them but their strength is substantially weakened unless of course they relate to dishonesty.
58. Learned senior counsel for the State of Tamil Nadu, Sri C. S. Vaidyanathan has however relied upon the following observations of a two Judge Bench in D. Ramaswami v. State of Tamil Nadu, (1982) 1 SCC 510 : (AIR 1982 SC 793 : 1982 Lab IC 443) (Para 4) :
"The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct."
The above-said observation cannot help the respondent inasmuch as, though such remarks need not be altogether omitted from consideration, they must be treated as sufficiently weakened and as having lost their sting. The case in D. Ramaswami's case (AIR 1982 SC 793 : 1982 Lab IC 443) on facts goes against Mr. Vaidyanathan's contentions. There the appeal of the officer was allowed by this Court. In that case, the officer started as Lower Division Clerk and rose to the position of a Dy. Commissioner of Commercial Taxes. His entire service record contained only one single adverse entry in 1969 which referred to taking money from business people. The inquiry into that complaint 12 ended in his favour, the government dropping the charges in Nov. 1974. In May, 1975 he was offered the selection post of Dy. Commissioner. In September, 1975, he was compulsorily retired. It was held that while his previous record should not be completely ignored, there was nothing in the present conduct casting any doubt on the wisdom of the promotion and there was therefore no justification for needless digging into the past. It was held that the basis of the adverse entry of 1969 was knocked out by the order of the government in November, 1974 and the effect of the entry (of 1969) was blotted out by the promotion of the appellant in that case by his promotion as Deputy Commissioner. In the light of the other observations, the said ruling in fact supports the case of Sri Badrinath rather than go against him. Two other cases cited in this connection are not relevant on this aspect and we are not referring to them.
59. From the above judgments, the following principles can be summarised :
(1) Under Article 16 of the Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideration' for promotion that is important but the consideration must be 'fair' according to established principles governing service jurisprudence.
(2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury Principles or was it mala fides.
(3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.
(4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion.
This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be 13 considered to have not lost their strength fully so as to be ignored altogether.
(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed."
16. In Brij Nath Pandey V/s. State of U.P. (supra) the appellant had been denied promotion in a selection which took place in 1995, whereas his juniors had been promoted. The appellant contended that his adverse ACRs for the year 1985-86 and 1986-87 could not have been taken into consideration in view of the fact that the appellant had been subsequently allowed to cross the Efficiency Bar since 01.01.1992 vide order dated 20.05.1992. The Hon'ble Supreme Court found that this view to be correct in the following manner:-
"2. Heard Counsel on both sides. the appellant was denied promotion in the selection which took place in 1995 when, according to him, his junior was promoted. According to the appellant the adverse entries in his Annual Confidential Reports 1985-86 and 1986-87 could not have been taken into consideration in view of the fact that the appellant was subsequently allowed to cross the efficiency bar since 1.1.92 vide an order dated 20.5.92. In our view this contention of the appellant is correct and the adverse entries in 1985-86 and 1986- 87 cannot come in the way of the appellant for further promotion once he was allowed to cross the efficiency bar on 20.5.92. So far as the adverse remarks of 1993-94 are concerned at the time of the selection in 1995 the said adverse remarks were there on record but they were subsequently deleted on 6.7.96. Therefore, the appellant is entitled for a fresh consideration for his promotion in 1995. the respondents are therefore directed to consider the case of the appellant afresh with reference to the selection of 1995 when his junior was promoted."
17. Moreover, we take note of the fact that the order of the High Court was to consider the claim of the applicant with 14 respect to the revised ACR gradings. Here, the review DPC has considered the claim of the applicant on the assumption that his ACRs were expunged only on 31.03.1993 and on the date of consideration, said ACRs had not been expunged. However, we are of the view that once the ACRs were expunged in 1993, as is evident from the order dated 06.09.2010 of the Hon'ble High Court of Delhi, they became ineffective as if there were no adverse entries in the ACRs of the applicant for the relevant period. We, therefore, cannot assume that the offending ACRs became ineffective only from 31.03.1993.
18. In totality of the facts and circumstances of the case, we are of the view that review DPC has erred in examination of applicant's claim for promotion to the post of ITO from the year 1992. As per the decision of the Hon'ble Supreme Court in Badri Nath Pandey (supra) and in view of clear directives of the Hon'ble High Court that the DPC should consider the case of the applicant only in view of the altered status of the ACRs, we find that the consideration of the DPC in its meeting held on 22.12.2010 is bad in law. We, therefore, allow the instant OA and direct the respondents to convene another review DPC whereby the case of the applicant for promotion to the post of ITO for 1992 be considered as if there were no offending ACRs for the years 15 1985-86 and 1986-87 having been deleted from the date they were recorded and the same cannot treated to be deleted from the date of the order of deletion. The respondents are further directed to complete the exercise, as ordained above, within a period of three months from the date of production of certified copy of this order.
(Dr. B.K. Sinha) (A.K. Bhardwaj) Member (A) Member (J) /AhujA/