Central Administrative Tribunal - Delhi
Rajbala vs Govt. Of National Capital Territory Of ... on 23 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.4298/2012
Order Reserved on: 22.04.2014
Pronounced on: 23.05.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Rajbala
Assistant Director of Education (PE & NI)
R/o 15-B, Delhi Administration Flats,
New Mahavir Nagar,
Outer Ring Road, Vikas Puri,
Delhi.
..Applicant
(By Advocate: Shri R.K.Sehrawat)
Versus
1. Govt. of National Capital Territory of Delhi,
Through Chief Secretary,
Delhi Govt. Secretariat, IP Estate,
New Delhi-110002.
2. Director of Education,
Govt. of National Capital Territory of Delhi,
Old Secretariat, Delhi-110002.
3. Union Public Service Commission,
Through its Chairman,
Shahjahan Road, New Delhi.
4. Sh. Satpal,
DDE (sports) on ad hoc,
Chattarshal Stadium, Delhi.
..Respondents
(By Advocate: Sh. Amit Anand)
O R D E R
Mr. V.N. Gaur, Member (A) The applicant has been working as Assistant Director (PE & NI) in the Organisation of Respondent no.2 (Directorate of Education, Govt. of NCT of Delhi). According to the applicant he is now eligible for promotion to the grade of Dy. Director of Education (PE & NI), a post which has been lying vacant for the last 10-15 years. According to the Recruitment Rules (RR) as notified by the Governments notification dated 09.08.1994, an Assistant Director with 2 years regular service in the grade is eligible for promotion to the post of Deputy Director of Education (PE & NI). When the respondents did not take any action on several representations made by the applicant, she filed OA no.3184/2012 which was disposed of by this Tribunal on 21.09.2012 with the following directions:
2. In view of the aforesaid submission of the applicant, we dispose of this OA at the admission stage itself without notice to the respondents but with the direction to them to consider the Applicants representations dated 23.05.2012 and 13/14.08.2012. They shall also consider the aforesaid tentative seniority list, in the light of the objections raised by the Applicant. Thereafter, they shall intimate their decisions on both matters, within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
2. The respondent no.2 disposed of the representation of the applicant vide letter dated 27.11.2012 (impugned) relying on the instructions issued by the DOP&T dated 13.04.2010. The ACRs below bench mark grading were communicated to the applicant. The applicant was informed that her ACRs for the years 2006-07 and 2008-09 were graded as Good and, therefore, was below the bench mark of Very Good for promotion to the post of Deputy Director of Education. The applicant made representations following which the competent authority upgraded her ACR for the year 2006-07 to Very Good while retaining the overall grading of Good in the year of 2008-09. The OA has been filed by the applicant with several prayers including some related to appointment and promotion of private respondent no.4. Allegations of mala fide have also been made in the OA against the respondent no.4. However, today when the matter was taken up for hearing, on instructions from the applicant who was personally present in the grade, the learned counsel for the applicant stated that he would be pressing for the following prayers:
a. Quash/set aside order No. F.9(5)/Edn./Sectt.Br./2012/1122-24 dated 20.09.2012 and upgrade the ACR of 2008-09 from good to very good to meet the bench mark for promotion to the post of Deputy Director of Education (Physical Education & NI) c. Declare the instructions of DOPT keeping benchmark as very good for promotion from Assistant Director to Deputy Director as not binding instructions in view of Notification dated 09.08.1994 by Education Department in Delhi Gazette, where there is no such bench mark prescribed for promotion to the post of DDE(PE&NI).
3. Learned counsel for the applicant referring to the recruitment rules for the post of Deputy Director of Education stated that the rules did not specify any bench mark for promotion. It only stated that an Assistant Director (PE&NI) with 2 years regular service in the grade is eligible for promotion to the post of Deputy Director of Education. Therefore, the respondents ought to have considered ACRs for only 2 years and that too without applying the condition of bench mark which is an extraneous consideration. The RRs envisage this promotion to be effective only on the basis of seniority. According to the learned counsel, the element of bench mark has been introduced by respondent no.2 and respondent no.3 on the basis of the DOP&T instructions dated 13.04.2010 which stipulates that all the below bench mark grading ACRs should be communicated to the concerned officers. It is further argued that it is an established fact that the instructions issued by the Govt. of India meant for Central Govt. Ministries and Departments are not automatically applicable to the departments of Delhi Govt. unless the same is adopted by the Govt. of NCT of Delhi. Referring to the stand taken by the respondents that they have already taken action with regard to the filling up the post of Deputy Director of Education (PE & NI) on regular basis by referring the matter to UPSC for holding DPC, the learned counsel stated that no such reference to UPSC was required. Column 14 of the RR states that consultation with UPSC not necessary.
4. With reference to the ACR gradings of the applicant for the year 2006-07 and 2008-09 it was submitted by the learned counsel for the applicant that in the ACR for the year 2006-07 the reporting officer had assessed the applicant as Very Good but the same was downgraded to Good by the reviewing officer with the remark she has capacity for planning in sport activities. She needs monitoring. The respondent no.2 after considering the representation of the applicant has upgraded the ACR for the year 2006-07 to Very Good. However, the same reporting and reviewing officers have graded her as Good. The respondent no.2 while disposing of the representation of the applicant against this grading has not considered her request and retained the overall grading of ACR of 2008-09 as Good. It was contended that if the remarks of the reporting and reviewing officers in the two ACRs are compared the assessment of the work of the applicant in the year 2008-09 is superior to that in 2006-07 which has been upgraded as Very Good. In the ACR for the year 2006-07 the reviewing officer has written that she needed monitoring while there was no such remark in the ACR of 2008-09. It clearly shows that there was no application of mind on the part of the respondent no.2 in disposing of the representation of the applicant. Applying the same yardstick, as the ACR of 2006-07, the respondent no.2 ought to have upgraded the ACR of 2008-09 as Very Good. Accordingly, the learned counsel pleaded that respondents should be directed to upgrade the ACR for the year 2008-09 of the applicant to Very Good and consider the applicant for promotion to the post of Deputy Director of Education (PE & NI) without applying the criteria of bench mark on merits.
5. Learned counsel for respondents argued that it is not true to say that RRs did not envisage any selection on the basis of ACR gradings. He pointed out that as provided in Column 5 of the RRs the post was to be filled up through selection and, therefore, the respondents were within their rights to prescribe a bench mark while selecting an incumbent for the post. He also submitted that DOP&Ts OM dated 13.04.2010 was relevant only to the extent that the below bench mark ACR gradings of the applicant were communicated to her in terms of these instructions. It was not true that the bench mark of Very Good was introduced as an extraneous element in the selection process on the basis of this memorandum. It was pointed out that there are general instructions/guidelines for the conduct of DPCs in the Government which envisage that the DPCs shall consider 5 years ACRs of the candidates. The stipulation of 2 years regular service in the grade of Assistant Director in the RRs only prescribe the eligibility condition and it did not mean that the ACR of only 2 years will be considered in respect of the candidates. Learned counsel submitted letters to establish that the respondents had initiated a proposal for holding DPC to fill up the post of Dy. Director of Education and the same was under correspondence with the UPSC. The UPSC has in its letter dated 12.07.2013 stated that when there is no residency period for granting higher pay scale and feeder post as well as promotional post have been given the same pay scale, there is no scope to hold the DPC for promotion on the basis of 1994 RRs which have now become unworkable and cannot be operated at this stage. UPSC has further advised that department should consider taking necessary action immediately for amendment in the RRs and thereafter furnish any such proposal for holding DPC, if required as per amended RRs. The respondents have initiated the process of amending the RRs and proposal to hold the DPC can be submitted to UPSC only after the RRs have been amended. Learned counsel further pointed out while it was true that consultation with UPSC was not necessary, as mentioned in the RRs, the composition of the DPC as given in column 13 therein includes Chairman/Member, UPSC as Chairman of the DPC and, therefore, a reference to UPSC has to be made. With regard to the disposal of representation of the applicant regarding upgradation of ACR grading, the learned counsel stated that respondent no.2 has passed the impugned order after due application of mind and considering the grounds taken by the applicant. It was not appropriate to compare the ACRs for the year 2006-07 and 2008-09 to argue that there should have been identical disposal of the representation by the competent authority. The reporting officer had graded the applicant as Very Good in 2006-07 while the reviewing officer has downgraded the same to Good grading. The same was not true in the ACR of 2008-09 as both the reporting and reviewing officers have graded the applicant as Good. Therefore, it cannot be said that the situations were identical in two years.
6. We have considered the submissions made by the learned counsel of both the sides. Mainly there are two issues to be considered:
i) whether the respondents can prescribe a bench mark for selection/promotion and there is no such stipulation in the RRs and
ii) whether the disposal of representation of the applicant for upgradation of ACR for the year 2008-09 by respondent no.2 was in a proper manner.
7. With regard to the first issue it is noted that column no.12 of the RRs for the post of Dy. Director Education provides that an Assistant Director (PE & NI) is required to have only 2 years regular service in the grade for consideration on the post. There is nothing written in the rules that can be taken to construe that the DPC shall not consider the performance of the candidate for a period beyond 2 years. There are general instructions issued by the Government that govern the conduct of DPC and the number of ACRs to be considered will depend on those instructions. It is further noted that as pointed out by the learned counsel for the respondents, the bench mark for promotion at the entry level post of Group A is Very Good and the post of Dy. Director of Education carries the pay scale of lowest level in the Group A. In that case, we cannot find fault with the decision of the respondents to insist on the bench mark of Very Good in the ACRs. The DPC, however, will have to follow its own methodology in accordance with the existing instructions while making the final assessment with regard to suitability of the applicant on the post on the basis of ACRs for the 5 years. We do not find any force in the argument of the learned counsel for the applicant that even though it is a selection post and an entry level post of Group A, the respondents cannot prescribe the bench mark of Very Good for promotion to the above post.
8. With regard to the upgradation of ACR for the year 2008-09 it is noted that the reporting officer and reviewing officer had made the following observation in the ACR for 2006-07:
Assessment by the Reporting Officer Good. Officer capable to take cooperation from PETs. Good management & planning. Over all V.Good.
Report of Reviewing Officer She has capacity for planning in sport activities. She needs monitoring. She is rated good.
9. Corresponding entries in the ACR for the year 2008-09 are given below:
Assessment by the Reporting Officer Good. The officer supervised conduct of zonal sports activities & also performed duty assigned by Sports Branch.
She also supervised other activities Drg & painting, competitions, cultural activities, competitions held at zonal & Distt. Levels.
Report of Reviewing Officer agreed with reporting officer. She is good worker.
10. On perusing the remarks of the reporting officer in ACRs of both the years, we cannot draw any inference as to why he had given grading of Very Good in one year and grading of Good in another year. The reviewing officer in both the years has rated the applicants as Good. In the given circumstances, when both the reporting and reviewing officers have already retired, the appellate authority has to take a decision on the basis of available documents only. It also needs to be emphasized that in the matter of assessment of performance of an employee it is the supervisory officer who is in the best position to make the assessment and not any other authority unless there are reasons to disbelieve the objectivity of the officers making the assessment. We do not find any such reasons in respect of the reporting and reviewing officers of the ACR for the year 2008-09. Therefore, we are not convinced with the submissions of learned counsel for the applicant that the impugned order dated 20.9.2012 has been passed by respondent no.2 without any application of mind.
11. The fact as it comes out from the submissions made by the respondents is that there are procedural hurdles in holding the DPC as it has been found to be unworkable to hold the DPC on the basis of the present RRs. What is intriguing is that the respondents have not reacted to the instructions issued after the implementation of recommendations of the 6th Pay Commission with regard to the revision of RRs in certain situations. It is nearly 5 years since then but the respondents initiated steps in that direction only now when the same has been pointed out by the UPSC. This is a sad commentary on the functioning of the concerned department as due to the negligence on the part of a few persons the officers like the applicant who are at the fag end of their career will miss consideration for promotion to higher post and retire as a disappointed and dissatisfied employee of the Government. This is not a desirable scenario for the morale of the employees. We hope that respondents shall at least now take expeditious action for amending the RRs.
12. Keeping in view the above discussion and the reasons stated, we do not find any merit in the OA and the same is dismissed. No order as to cost.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd