Central Administrative Tribunal - Delhi
P.K. Jain vs Union Of India on 14 August, 2013
Central Administrative Tribunal Principal Bench O.A. No.4582/2011 Order reserved on: 05.07.2013 Order pronounced on: 14.08.2013 Honble Mr. V. Ajay Kumar, Member (J) Honble Mr. V.N. Gaur, Member (A) P.K. Jain, S/o late Shri S.C. Jain, R/o A-204, Shree Ganesh Apartments, Plot No.12-B, Sector-7, Dwarka, Delhi-110075. -Applicant (By Advocate Shri R.V. Singh) Versus 1. Union of India, Ministry of Defence, South Block, New Delhi-110011 (Through: The Secretary). 2. The Engineer-in-Chief, IHQ of MOD (Army), Kashmir House, Rajaji Marg, New Delhi-110011. 3. Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110011. 4. MES No.471007 Alok Shukla, Working as Superintending Engineer, Chief Engineer (AF), WAC, Palam, Delhi Cantt-110010. 5. Brig. (Retd.) K.K. Tiku, Worked as DDGW (Design) under the Respondent No.2, w.e.f. 25.5.2007 to 7.7.2008, (to be served through R-2). 6. Brig. B.D. Pandey, Worked as DDGW (Design) under the Respondent No.2, w.e.f. 25.7.2008 to 30.11.2010. 7. Maj Gen [Retd.] Brajesh Kumar, Worked as DGW under respondent No.2, (to be served through respondent No.2) -Respondents (By Advocates Shri Satish Kumar and Shri Piyush Kumar for Mrs. B. Rana, counsel for UPSC) O R D E R Mr. V.N. Gaur, Member (A):
The applicant in this case is aggrieved by the order dated 03.03.2011 issued by respondent No.2 (R-2), rejecting his representation dated 29.09.2009 for cancellation of his below benchmark grading in the ACR for the period 28.05.2007 to 31.03.2008 (hereinafter referred to as 1st ACR) and 01.04.2008 to 31.03.2009 (hereinafter referred to as 2nd ACR). According to the applicant this order has been passed by the respondents without application of mind in a mechanical manner and without considering the material placed before the competent authority. Applicant has also impugned the order dated 07.05.2011 issued by R-2, rejecting the representation dated 24.10.2009 in a similar manner and an order dated 12.10.2011, approving the promotion of 20 Superintending Engineers (SE) to the grade of Additional Chief Engineers in exclusion of the applicant without assigning any reason therefor. The applicant is senior to R-4 whose name appears at serial No.4 in the list A of the aforesaid letter dated 24.10.2009.
2. The grievance of the applicant emanates from his 1st and 2nd ACRs where he has been given below benchmark grading and the representations against which have been rejected by R-2.
3. The applicants case is that he has been working as SE under R-2 since 15.06.2001 and right from 2001-2002 he has earned ACR gradings of Very Good and Outstanding except for 2007-2008 and 2008-2009. During the period 25.05.2007 to 07.07.2008 he worked as Director (Design) under R-5 who was then working as DDGW (Design). The applicant claims that R-5, who used to harass him as his supervisory officer, gave him below benchmark grading in the 1st ACR, allegedly written after the one-month period beyond the date of superannuation. Earlier the applicant had represented to R-2 on 04.04.2008 bringing to his notice these facts and requesting him to save him from victimization, as he apprehended that his 1st ACR may be damaged by the then Initiating Officer (IO) and Reviewing Officer (RO) in spite of performing and maintaining outstanding work record. Applicants representations against the below benchmark gradings both in the 1st and 2nd ACRs were also rejected. On the basis of the copy of the noting on the file dealing with his representation, obtained through RTI, the applicant has submitted that the competent authority had decided his representations without application of mind, ignoring the vital inputs and documents furnished by the applicant in a mechanical manner. In the meantime, the respondents had issued order dated 12.10.2011, circulating a panel for promotion of SE to the grade of Additional Chief Engineer and promoted officers were juniors to the applicant in the grade of SE.
4. The present OA has been moved by the applicant seeking the following reliefs:
(a) Call for the original file(s)/record(s) including of and related to the DPC of the respondents dealing with the present case;
(b) Declare the Order No.B/50013/PC-433/MIS (Civ)(i) dated 3.3.2011 (Annexure-A-1 Impugned); Order No.B/50013/PC-454/MIS (Civ)(i) dated 7.3.2011 (Annexure-A-2 Impugned) and letter/order No.B/41022/DPC/ACE/2011-12/E1(DPC-1) dated 12.10.2011 (Annexure-A-3 impugned) as illegal, arbitrary and discriminatory and accordingly quash the same to the extent they exclude the applicant from his promotion to the grade of Additional Chief Engineer;
(c) Direct the respondents herein to convene the review DPC in time bound manner by ignoring the ACRs of the applicant for the period 2007-08 and 2008-09 and on found fit to promote the applicant to the grade of Additional Chief Engineer from the date when his juniors have been promoted with all consequential benefits viz., pay and perks from that date, arrears of pay, seniority and non-functional upgradation, etc. and further promotion to the post to which his junior may be promoted.
(d) Award cost of this application and proceedings against the Respondents and favour of the Applicant;
5. Learned counsel for the applicant during oral submissions argued that the 1st ACR needs to be set aside as applicant was never given any advisory or guidance before recording adverse remarks in the ACRs. In support of his contention the learned counsel for the applicant relied on the following judgments of the Honble Apex Court:
i) Sukhdev v. Commissioner, Amravati Division, Amravati & Anr., [(1996) 5 SCC103].
ii) M.A. Rajsekhar v. State of Karnataka & Anr.,, [1996 10 SCC 369]
iii) State of U.P. v. Yamuna Shankar Mishra & ANr. [1997 SCC (L&S) 903.
iv) Order/Judgment dated 30.03.2011 of the Principal Bench of this Tribunal in OA No.3410/2010 Rohit Kumar Parmar v. Union of India & Ors., upheld by the Honble High Court of Delhi vide order/judgment dated 04.08.2011 in Writ Petition (Civil) No.5533/2011.
6. According to the learned counsel the ACR also was written by an authority who was not competent to write it on the day he recorded those remarks. The R-5 had proceeded on voluntary retirement on 07.07.2008 and the applicant had not even received blank ACR form for filling up part-2 and submit it to the IO. By the time he received the blank ACR form the R-5 had already superannuated. He further submitted that the adverse entries in the 1st and 2nd ACRs were on account of malafide, as the RO was the same in both the ACRs. The applicant had already apprised the respondents about his apprehension about this vide letters dated 04.04.2008, 26.06.2008, 22.07.2008 and also during personally meeting with R-2 and R-7 on 07.07.2008. He further alleged that the applicants representation vide impugned orders dated 03.03.2011 and 07.03.2011 were rejected without dealing with any of the submission of the applicant and by a totally non-speaking and non-reasoned communication. In this context, he relied on the judgment of this Tribunal in Rohit Kumar Parmar (supra), where the following observation was made by the Tribunal:
However, the competent authority proceeds to reject the representation only on the comments of the reporting officer, which only reiterate that he would stick by the grading given by him to the officer reported upon. The reporting officer has not answered the points raised in the representation of the Applicant. The representation has not been examined at all by the officials who submitted the relevant file to the Defence Secretary, who perfunctorily records that he saw no reason to intervene in the assessment made by the reporting and reviewing authority, apparently without knowing anything about the Applicants representation. The Applicant has been treated unjustly. The rejection of his representation has been without proper application of mind. Moreover, in the light of the judgment of the Honourable High Court in Ranjana Kale (supra), upheld by the Honourable Supreme Court and the judgment in Abhijit Ghosh Dastidar (supra), the DPC should not have considered the ACRs of 2003-04 and 2005-06 and instead should have considered ACRs of earlier two years. Questioning the selection made by the DPC the learned counsel submitted that the DPC was wrong in taking cognizance of the below benchmark ACRs of the applicant against which the appeal was pending consideration. He, therefore, requested that this Tribunal should issue direction to convene Review DPC, ignoring the 1st and 2nd ACRs of the applicant.
7. Learned counsel appearing for the respondents in his submission argued that the DPC was right in considering these ACRs for the reason that the representations made by the applicant had already been disposed of by the competent authority on 23.02.2011 while the panel of Additional Chief Engineer was circulated on 12.10.2011.
8. He refuted the submissions made by the learned counsel for the applicant that there was any manipulation in writing the 1st ACR for the period 2007-2008 and asserted that it was written by R-5 within 30 days from the date of his premature retirement. He also contended that applicant was well aware that the IO was due to proceed on premature retirement on 07.07.2008 and, therefore, applicant deliberately did not submit the ACR form before that date. In support of his contention, learned counsel drew attention to copies of various intra departmental correspondence submitted as Annexures 2A, 3A, 4A and 5A to the counter reply of respondents No.1 and 2 showing that earlier efforts to send ACR form to the applicant did not succeed and advisories had been issued from time to time to submit ACR for the prescribed period, particularly in view of the retirement of R-5.
9. Referring to the 2nd ACR, learned counsel submitted that the three officers whose remarks were recorded in that ACR have unanimously graded him as C Good. It is worth noting that the IO of this ACR was different from the IO of the 1st ACR. Hence, there appeared to be no inconsistency or subjectivity in the evaluation of the applicant which was based on his demonstrated performance on the ground. Also contradicting the claim of the applicant that he had received very good/Outstanding ACR consistently since the year 2002, the learned counsel pointed out that during the period 1.4.2003 to 6.8.2003 applicant was awarded below benchmark grading both by the RO/Counter Signing Authority, which was upgraded to the benchmark grading by the competent authority after adjudicating the representation of the applicant. Learned counsel vehemently argued that there was nothing wrong in the proceedings of the DPC or in writing the ACRs as alleged by the applicant or in disposal of his various representations and, therefore, the OA was liable to be rejected.
10. After having gone through the documents placed on record and submissions made by both sides it is observed that the main issue before us is with regard to the validity of 1st and 2nd ACRs in view of the various allegations that have been made by the applicant. Primarily the applicants contention is:
i) that there was mala fide on the part of the IO (R-5) for the 1st ACR.
ii) He was not supplied with blank ACR form before the time of superannuation of R-5.
(iii) The ACR form which he submitted on his own after that date to be initiated by the reviewing officer was not accepted.
(iv) The ACR was finally written by R-5 only much after the permissible period of one month from the date of premature retirement.
11. It is found that with regard to charge of mala fide against R-5 the applicant had written a number of letters on 04.04.2008, 26.06.2008 and 22.07.2008 besides personal meeting with R-2 and apprising him of his apprehensions. He had brought out specific instances of alleged discriminatory and hostile behaviour of R-5 in his representations. These have not been dealt with by the R-1 while disposing of the representations of the applicant, as is apparent from the copy of the noting placed on record.
12. Regarding the ACR form not being supplied to him in time, the respondents have submitted that from their side ACR form was sent to the applicant but he refused to receive it (Annexures at pages 1/B, 1/C, 1/D, 1/E & 1/F attached to the brief documents submitted on behalf of R-1 and R-2 on 31.10.2012). The applicant therefore cannot take a plea that he was not supplied with the ACR form. However, the records produced by the applicant indicate that the 1st ACR was written much later than the permissible period as the ACR claimed to have been written by the IO on 20.08.2008 was reviewed on 17.08.2009 after the review of the ACR for the period 25.07.2008 to 31.03.2009 on 03.08.2009. The form used for writing the ACR by R-5 is also not the prescribed form for SE. Without going into the merit of the grading given by R-5 in that ACR, we are of the view that this ACR suffers from legal infirmity inasmuch as the same was not written within one month from the date of the premature retirement of R-5 and, therefore, it will be void ab initio. We also find that the representation submitted by the applicant has been disposed of by R-1 without discussing the specific points mentioned in that representation, as can be seen from the copy of the note-sheet obtained by him through RTI and filed with the OA. The letter communicating the decision of R-1, however, is quite elaborate, even though there is no co-relation between the discussion made on file and the reply given.
13. With regard to the 2nd ACR the sole ground taken by the applicant against the overall grading of Good given in that ACR is that the RO was the same as for the 1st ACR. It has been argued that R-7, who was the RO had developed bias against the applicant for making detailed representation dated 29.09.2009 to R-1 pointing out glaring example of manipulation of record in connivance with R-5 etc. The applicant contends that the IO also had malice against him and was influenced by R-7 and that the latter had projected a bad picture of the applicant to the Accepting Officer. It is very difficult to believe that the officers of the level who were involved in the process of writing the ACR as Reporting Officer and Accepting Authority would get so easily influenced by one officer as to give the applicant consistent grading of Good at all levels in the ACR. The records also show that it is also not true that applicant never got grading of Good in the past. We, therefore, do not find any merit in the allegation that the consistent grading C given by IO, RO and AO in the 2nd ACR is due to any mala fide.
14. After taken into account the entire conspectus of the case we have no hesitation in striking down the 1st ACR on account of demonstrated mala fide and violation of laid down norms for writing ACRs and direct the respondents to convene a review DPC within 03 months in accordance with the Rules and procedure taking the 1st ACR to be non-est. The OA is partly allowed, with no order as to costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.