Central Administrative Tribunal - Delhi
Mukesh Chand Aged About 54 Years vs Union Of India on 4 July, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.873/2012 Order Reserved on: 10.04.2012 Order pronounced on 04.07.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Mukesh Chand aged about 54 years S/o Shri Mahesh CHand Working as UDC in ESP-1 Addl. Dte. Gen. ESP Engineer-in-Chief Branch Integrated HQ of Ministry of Defence (Army) New Delhi 110 011. Applicant (By Advocate: Sh. S.M.Garg) vs. 1. Union of India through the Secretary Ministry of Defence South Block New Delhi. 2. The Joint Secretary (T) & CAO Ministry of Defence, E-Block New Delhi. 3. DACIDS (MS/SD) HQ IDS Ministry of Defence 263-D, South Block New Delhi. . Respondents (By Advocate: Shri Ratan Lal) O R D E R By V. Ajay Kumar, Member (J):
The present application has been filed questioning the letter dated 10.06.2011 communicating the below benchmark gradings of ACRs for the period 01.04.2007 to 13.09.2007, 2006-2007 and 2005-2006, and the letter dated 27.07.2011 rejecting the representation of the applicant seeking upgradation of the aforesaid below benchmark gradings.
2. The applicant, an UDC, is eligible for consideration for promotion to the post of Assistant, and the respondents vide the impugned letter dated 10.06.2011 communicated the below benchmark gradings of `Good of his ACRs pertaining to the period 01.04.2007 to 13.09.2007, 2006-2007 and 2005-2006 and called for his representation, if any, for modification of the contents/upgradation of the overall grading. The applicant submitted his representation against the said below benchmark gradings and sought for upgradation of the same on 14.06.2011. The respondents vide their letter dated 27.07.2011 intimated that there is no change in the gradings given to the applicant.
2. In the counter filed by the respondents, they have denied the averments of the OA and prayed for dismissal of the OA.
3. Heard Shri S.M.Garg, the learned counsel for the applicant and Shri Ratan Lal, the learned counsel for the respondents, and also perused the pleadings on record.
4. Shri S.M.Garg, the learned counsel for the applicant, inter alia, contended that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve his performance. Therefore, it would be salutary that the controlling officer before writing the adverse remarks or before giving the grading less than the grading awarded to the applicant on the previous year would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve, then it would be an obvious fact and would form material basis in support of the adverse remarks or below bench mark grading. Since the respondents without giving the applicant any prior opportunity before recording the below benchmark grading and furnished the ACRs containing the below benchmark remarks after a substantial delay, the said below benchmark gradings should be ignored while considering his case for promotion by the DPC.
5. The learned counsel for the applicant further submits that a below benchmark grading, which is communicated after five years, amounts to non-communication only, since the public servant lost his opportunity to improve his performance even in the subsequent years, and hence, the said below benchmark gradings should be ignored while considering his case for promotion.
6. The learned counsel placed reliance on Sukhdeo v. Commissioner Amravati Division, Amravati and another, (1996) 5 SCC 103 and State of UP v. Yamuna Shanker Misra and Another, (1997) 4 SCC 7.
7. Per contra, Shri Ratan Lal, the learned counsel for the respondents while reiterating the contentions made in the counter submits that in view of Annexure R-1 Office Memorandum dated 13.04.2010, only the adverse remarks in the ACRs prior to the reporting period 2008-2009 are required to be communicated and that if an employee is to be considered for promotion in a future DPC and his ACRs containing below benchmark gradings are to be communicated to enabling the employee to submit his representation and the same would be considered objectively in a quasi judicial manner on the basis of material placed before it, and after taking into account the views of the concerned Reporting/Reviewing Officers. Hence, there is no illegality in the action of the respondents.
8. In Sukhdeos case (supra), and also in Yamuna Shankar Mishras case (supra), the Honble Apex Court while emphasizing the purpose and object of writing ACRs, i.e., to provide an opportunity to the employee to improve his performance observed that the controlling officers before writing adverse remarks/below benchmark gradings, would give prior sufficient opportunity in writing by informing them the deficiency noticed in their performance. Admittedly, no such prior opportunity was given to the applicant before recording the below benchmark grading in his ACRs.
9. In Abhijit Ghosh Dastidar v. Union of India & Others, (2009) 16 SCC 146, the Honble Apex Court held that non-communication of not only adverse remarks but also below benchmark gradings such as `Good, etc. would be arbitrary and as such violative of Article 14 of the Constitution of India. The relevant part of the said Judgement is extracted below:
8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case ((2008) 8 SCC 725: (2008) 2 SCC (L&S) 771: (2008) 7 Scale 403), SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
9. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28-8-2000. Therefore, the appellant also be deemed to have been given promotion from 28-8-2000.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group A, but his retrospective promotion from 28-8-2000 shall be considered for the benefit of refixation of his pension and other retiral benefits as per rules.
10. As rightly pointed out by the learned counsel for the applicant, since the respondents belatedly communicated the aforesaid below benchmark gradings, without providing the applicant any opportunity to improve his performance, as against the purpose and object of writing ACRs, the same amounts to non-communication, and accordingly, the respondents cannot take into account the said below benchmark gradings, while considering the case of the applicant for promotion.
11. The order dated 27.06.2011, wherein the respondents rejected the representation of the applicant is a non-speaking order and thereby violates the principles of natural justice. Further, the same is also against to the OM dated 13.04.2010, relied on by the respondents themselves. Since the said OM also requires the Competent Authority to take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing Officer if they are still in service on the points raised in the representation vis-`-vis the remarks/gradings given by them in the APAR and thereafter decides the matter objectively in a quasi judicial manner on the basis of material placed before it. But the letter does not disclose any reasons and also whether the Competent Authority obtained the views of Reporting and Reviewing officers, before rejecting the representation of the applicant. However, in view of the observations made above, no fruitful purpose would be served, in remanding the matter to the Competent Authority, for passing a reasoned order.
12. In these circumstances and for the aforesaid reasons, the OA is allowed and the respondents are directed to ignore the below benchmark gradings while considering the case of the applicant for promotion to the higher grade and accordingly, grant him promotion, if otherwise eligible, with all consequential benefits as per rules, but it is made clear that he is not entitled for any arrears. The aforesaid exercise shall be completed within three months from the date of receipt of a copy of this order. No order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/