Central Administrative Tribunal - Ahmedabad
N.S. Bhatt vs Union Of India (Uoi) And Ors. on 16 March, 2000
JUDGMENT A.S. Sanghavi, Member (J)
1. The applicant who was working as Assistant Accounts Officer in the office of the Accounts Officer Field Pay Unit (CIT), Ahmedabad is aggrieved by the promotions of his juniors w.e.f. 24.9.90 and refusal of the respondents to promote him as Assistant Accounts Officer w.e.f. 20.12.87. He was moved this O.A. praying that he be promoted to the post of AAO from 20.12.87, the date on which he became eligible to be considered for the post of AAO on completion of three years service as JAO and further praying that the instructions No. 6.1.4 dated 10.4.89 issued by GIDP of Personnel and Training O.M. No. 22011/5/86-Estt.(D), be declared as ultra vires to the Article 14 and 16 of the Constitution and be quashed and set aside. According to the case of the applicant, he was promoted to the post of JAO (Group "C") on dated 20.12.84 and had become eligible for promotion to the AAO (Group "B") when the DPC of CGA's office met in September 1990. However, his name did not figure in the candidates to be screened by the DPC though about 5 persons junior to him in the cadre of JAO were listed for screening. No reason was given for his omission for consideration for promotion in the DPC of September 1990. He had therefore, made representation asking the authorities to promote him from 24.9.90 to the post of AAO i.e. the date from which about 100-JAO's junior to him were promoted. His representation was, however turned down on the ground that he was not found fit for promotion to the post of AAO. However, subsequently, the Principal C.C.A vide its Office Order dated 14.11.91 considered his promotion to the post of AAO and he has been given promotion to the said post w.e.f. 4.11.91. The grievance of the applicant is that his representation for promotion w.e.f. 24.4.90 is not considered by the authorities and about 100 JAOs junior to him were promoted w.e.f. 24.9.90. He had represented thereafter also but he is not given any convincing reply and therefore, this O.A. is filed. During the pendency of the O.A., in view of the reply given by the respondents, the applicant has amended the O.A. praying for declaring the instructions 6.1.4. dated 10.4.89 issued by the GIDP of Personnel and Training as ultra virus to the Article 14 and 16 of the Constitution and be quashed and set aside.
2. The respondents have resisted the O.A. and in their reply contended inter alia that the post of AAO is a gazetted supervisory post and the promotion to the said post is governed by the Central Civil Accounts Service (Assistant Accounts Officer) Recruitment Rules, 1990. According to the respondents, this is a non selection post wherein the promotion is based on seniority cum fitness criteria and the candidate is also required to have put in minimum 3 years service as JAO. They have also contended that the applicant was considered for promotion by the DPC of 1990 along with other candidates and after taking into account over all performance, as reflected in the CR, had not found him fit for promotion and therefore they had not recommended him for promotion. The DPC had however, recommended that the performance and the conduct of the applicant should be watched during 1990-1991 and pursuant to this recommendation on the basis of the ACRs for the next year, the applicant was promoted w.e.f. 4.11.91. Relying on the O.M. dated 10.4.89, the respondents have contended that the performance of the applicant was "average" and therefore, he was not considered fit for promotion in the DPC of 1990. It is also contended that the application is barred by limitation as the same is not moved by the applicant in time. They have prayed that the application be dismissed with costs.
3. The applicant has filed rejoinder to the reply filed by the respondents and the respondents have also filed sur rejoinder. Both the learned advocates of the parties have submitted written arguments and have also made oral submissions.
4. At the outset, we may point out that so far as the question of condonation of delay in filing the application is concerned, the delay has already been condoned by the order dated 27.3.92 and therefore, the question is now not open for consideration. There is no dispute that the post of AAO is a promotional post to be filled up on the basis of seniority-cum-merit from the cadre of JAO. It is also not in dispute that the applicant had become eligible for promotion to the post of AAO on his completion of 3 years service as JAO in the year 1987. It appears that he was not considered for promotion till 1990 and the reason for his non consideration for promotion till 1990 is not forthcoming from the record but we are not concerned with this aspectas the applicant has challenged his non promotion to the post of AAO w.e.f. 24.9.90. The DPC which met on dated 10/11/14-9-90 for promotion to JAOs and AAOs had admittedly considered the case of the applicant for promotion to the post of AAO. According to the respondents, the DPC had not found him fit to be promoted as the applicant did not fulfill the standard laid down in para 6.1.4. of the O.M. dated 10.4.89 and thereby did not satisfy the requirements for the promotion.
5. On our directions the respondents have produced the minutes of the 1990 DPC along with ACRs of the applicant for the period from 1.1.87 to 31.3.90. The proceedings of the DPC as well as the ACRs of the applicant for the aforesaid period are shown to the learned advocate appearing for the applicant and pursuant to their inspection, the applicant has even amended the O.A. challenging the virus of the O.M. dated 10.4.89,
6. The DPC in its recorded proceedings has observed inter alia that the following officers are not considered fit for promotion at this stage for the reasons (a) integrity was doubtful (b) performance did not satisfy the benchmark as per the DPT orders and (c) conduct had been irresponsible.
7. Thereafter names of 13 candidates are given which includes the name of the applicant also. It is also further observed by the DPC that it felt that their performance and conduct should be watched during 1990-91 before they are considered again for promotion.
8. It is to be borne in mind that non selection of the applicant by the DPC is not challenged on the grounds of mala fides or prejudice by the DPC against the applicant. So far as the applicant is concerned, his ACRs for the year 1989-90 did not stand him in good stead as the reporting officer had assessed him "average". This assessment of "average" was admittedly not communicated to the applicant as the same was not considered as adverse remarks. The reliance was sought to be placed on the O.M. dated 10.4.89 which lay down following guide lines for consideration by the DPC.
"Government also desires to clear the misconception about 'average' performance. While "average" may not be taken as adverse remark in respect of an officer, at the same time, it cannot be regarded as complimentary to the officer as 'average' performance should be regarded as routine and undistinguished. It is only performance that is above average; and performance that is really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion."
9. In view of the above instructions, the "average" entry not being adverse one, was not communicated to the applicant and a grievance to that effect is also made by Mr. Pathak, learned advocate appearing for the applicant. According to Mr. Pathak, in his case since entry of average grading was not communicated to the applicant, he had not been given an opportunity to make any representation against that entry and this has led to the deprivation of the promotion to the applicant. Mr. Pathak has also pointed out that except the grading of "average" for the year 1989-90, the CRs for the other years give a grading of 'good' to the applicant and even showed that his services were very much appreciated. Even for the year 1989-90 when the reporting officer has assessed him as 'average', the reviewing officer had stated that it would have been better if the comments were explanatory and he has stated that Mr. Bhatt is a good officer. The reviewing officer has added that assessment could have been little liberal in view of it being a difficult charge. Mr. Pathak has further submitted that if the applicant had been given a chance to represent against the 'average' grading, considering the reviewing officer's remarks, there was every possibility that his representation would have been accepted or 'average' grading might have been changed. He has further pointed out that immediately i.e. next year the applicant is found fit for promotion and has been promoted also which suggests that the ACR for the year 1989-90 were not properly written. Since the rejection of the applicant for promotion to the post of AAO was made only on the basis of the 'average' grading in the ACR, the same grading given to him deserves to be interfered with and requires to be set aside.
10. There appears to be some substance in the submission of Mr. Pathak but so far as the ACRs of the applicant for the year 1989-90 is concerned though the reviewing officer has said that it could have been written more liberal, and that the applicant was a good officer, he had accepted the 'average' grading and not changed the same. The reviewing officer has also commented that the applicant was holding a difficult charge but he had not disagreed with the reporting officer that performance of the applicant was not up to the standard. The Accepting Authority who happened to be the Assistant Controller of Accounts has also accepted the remarks of the reporting officer as well the reviewing officer and has not made any changes in the grading. Under the circumstances, it cannot be said that the performance of the applicant was above "average" and that he was entitled to be promoted to the post of AAO. No allegations of mala fides or prejudice against the reviewing, reporting or accepting authorities are made by the applicant and therefore, there is nothing on record to suggest that the ACRs of the applicant were not correctly written. So far as the non communication of the 'average' remarks to the applicant, the authorities were justified in not communicating these remarks as the O.M. dated 10.4.89 clearly stipulates that it should not be taken as adverse remarks. We feel that in the case where the officer concerned is due for consideration for promotion or is coming within the zone of consideration for promotion, the assessment of "average" in his ACR should be communicated to him, so that he can take necessary steps in the event of his being aggrieved by those remarks. This is all more necessary when the promotion is to be based on seniority-cum merit or seniority-cum-fitness. However, this cannot be considered to be applicable in all cases, as the "average" performance on the part of an officer cannot be considered to be a below level performance to invite the wrath of the administration, at the same time, it also cannot be said that the administration should promote officers who are not up to the mark and whose performance is not worth noting. The Government is always at liberty to lay down some standard for promoting the officers and if a standard of above "average" is laid down for securing better officers in the promotional posts, it cannot be said that the same is contravening the provisions of constitution. The O.M. dated 10.4.89 therefore, cannot be held to be contravening the Articles 14 and 16 of the Constitution and cannot be struck down.
11. So far as the case of the applicant for promotion in 1990 DPC is concerned, the DPC had made its own assessment about the petitioner's performance along with the other 12 candidates and it has found that they were not fit for promotion. The DPC has also given reasons for considering them not fit for promotion and has recommended that their performance and conduct should be watched during the year 1990-91. The DPC no where states that they were not considered fit for promotion on account of specific entry in ACR as "average", it has made its own independent assessment and therefore there is no reason for interfering with the recommendation of the DPC. If the DPC followed the norms laid down by the DPT, there was nothing wrong in that process. It is also settled position that this Tribunal cannot sit as an appellate Court and re-appreciate the performance of the candidates in the DPC of 1990. In the case of Durgadevi v. State of H.P., AIR 1997 SC 2618, the Supreme Court has observed as under:-
"It is needless to emphasize that it is not the function of the Court to hear appeals over the decisions of the selection committees and to scrutinize the relative merits of the candidates. Where a candidate is fit for a particular post or not has to be decided by the duly continued selection committee which has the expertise on the subject, The Court has no such expertise. The decision o!' the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection of proved mala fides affecting the selection etc.
12. So far as the instant case is concerned, there is no challenge to the constitution of the DPC nor its procedure nor any allegations of mala fides affecting the selection. Hence, this Tribunal cannot interfere with the findings of the DPC regarding unfitness of the applicant for the promotion to the post of AAO and cannot grant any of the prayers made by the applicant in this O.A. The O.A. is therefore devoid of any merit and in the conclusion, the same is rejected with no order as to costs.