Central Administrative Tribunal - Delhi
Mohd Shahnvaj vs Dmrc on 17 April, 2025
1
OA No. 912/2022
Item No.24/C-5
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 912/2022
Reserved on : 28.03.2025
Pronounced on : 17.04.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Mohd. Shahnvaj, aged 33 years, Group 'B'
S/o Sh. Maksood Ali
Working as AM (Civil)/P.Way/Track/Machine
Delhi Metro
R/o K-402, DMRC Staff Quarters
Model Town, Mukandpur
Metro Depot, Delhi-110033.
.. Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Delhi Metro Rail Corporation Limited
Through its' Managing Director
Metro Bhawan, Barakhamba Road
New Delhi-110001.
2. The Director (Infrastructure)
Delhi Metro Rail Corporation Limited
Metro Bhawan, Barakhamba Road
New Delhi-110001.
3. The Sr. General Manager/Civil/O&M
Delhi Metro Rail Corporation Limited
Metro Bhawan, Barakhamba Road
New Delhi-110001.
.. Respondents
(By Advocate: Mr. V.S.R. Krishna with
Mr. Tarun Kumar, departmental representative)
2
OA No. 912/2022
Item No.24/C-5
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought for the following reliefs:-
"(i) That the Hon'ble Tribunal may further graciously be pleased to pass an order of quashing the impugned order dated 14.3.2022 and order dated 25.1.2022 (Annex.A/2 & A/3) by which the representation of the applicant has been rejected by incompetent authority and consequently pass an order directing the respondents No l who is next higher authority to the accepting authority to consider the representation of the applicant against the impugned APAR 2020-21.
(ii) That the Hon'ble Tribunal may further graciously be pleased to pass an order of quashing the impugned Grading 'Very Good' awarding in the APAR of the applicant for the assessment year year 202-2021(Annex.A/1), declaring to the effect that the same are illegal, arbitrary and without any basis and consequently, pass an order directing the respondents to re-assess the grading in the APAR 2020-21 while considering the facts that the applicant has been deprived from his promotion due to impugned APAR.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
2. Brief facts of the case as narrated by learned counsel for the applicant are as under:-
2.1 The applicant was initially appointed in Delhi Metro Railway Corporation Limited (DMRCL) to the post of Junior Engineer on 28.05.2010. He was promoted to the post of Assistant Manager/Assistant Engineer on 15.11.2016 and since then, he is 3 OA No. 912/2022 Item No.24/C-5 working on the same post. The next promotion from the post of Assistant Manager is to the post of Manager (Civil) after completion of five years of service.
2.2 Vide office order dated 05.04.2019, the respondents modified the selection procedure for promotion to various posts including the post of Manager, for which the Manager is required minimum 34 points in last four years APAR, meaning thereby, one is required at least 3 'Very Good' and 1 'Outstanding' APAR for his promotion.
Accordingly, the applicant was required at least one 'Outstanding' APAR for promotion due to modified promotion scheme, for which he worked hard during the entire year and submitted his self assessment APAR for the year 2020-21. The Reporting Officer agreed with the self assessment but awarded 'Very Good' grading and the same has been approved by the Reviewing as well as Accepting Authorities (Annexure A/1).
2.3 Against the impugned grading, the applicant submitted a representation dated 10.08.2021. According to him, as per the procedure and well settled law, the representation should be considered by the next higher authority then the Accepting Authority but the Accepting Authority himself considered his representation and rejected the same vide order dated 31.01.2021 only after considering the comments of the Reporting/Reviewing Officer, without application of mind.
4OA No. 912/2022 Item No.24/C-5 2.4 Being aggrieved, the applicant approached this Tribunal by filing O.A. No.2732/2021, which was disposed of vide Order dated 17.12.2021 with the following directions:
"In view of the above, we direct the applicant to make a fresh representation to the appropriate authority by highlighting his grievance within 15 days from the date of receipt of a copy of this order. Thereafter, respondents are directed to decide the representation so made by the applicant, in accordance with law, by passing a reasoned and speaking order within a period of three months from the date of representation from the applicant. There shall be no orders as to costs."
2.5 In compliance of the aforesaid directions, the applicant submitted a representation dated 04.01.2022 to the Managing Director, who is the next higher authority than the Accepting authority and competent authority as per law, but the same was not forwarded and the respondents No.3 vide order dated 25.01.2022 directed the applicant to submit his representation to the Director (Infrastructure), who is the Accepting Authority of the applicant and finally written his APAR.
2.6 Being an order binding employee, the applicant submitted another representation dated 07.02.2022 in which he specially requested to forward his representation to the next higher authority then the accepting authority, i.e. to the Managing Director, highlighting the law on the subject. However, the Accepting Authority instead of forwarding his representation to the next higher authority, himself considered and rejected the same vide order dated 5 OA No. 912/2022 Item No.24/C-5 14.03.2022, in para 3 whereof in respect of the competent authority, it has been observed as under:
"3. Based on the record available in the file, at the outset, I have noted that APAR 2020-21 Guidelines were issued vide Office Order No.PP/3098/2021, dated 25/03/2021 and vide Para No.:A.13), the APAR representation would follow the following channel: Reporting Authority (Remarks) → Reviewing Authority (Remarks) → Accepting Authority (Remarks/decision). Only the accepting authority should give the ultimate rating which should be final and binding on the employee and hence undersigned is the appropriate authority as per the APAR guidelines for DMRS and is competent to decide on the representation dated 07/02/2022, of Mr. Mohd. Shahnvaj, in compliance of the Orders dated 17/12/2021, of Hon'ble CAT."
which is totally illegal and against the law of the land.
3. Learned counsel for the applicant argued that even in the impugned order dated 14.03.2022, the Accepting Authority has not given any reason and justification. Once the Accepting Authority accepted that the applicant performed his duties without any complaint with the entire satisfaction of his seniors, there is no reason for depriving him from promotion.
4. The learned counsel for the applicant has also relied upon the following decisions rendered by this Tribunal in identical cases:
(i) In O.A. No. 1679/2015 titled S.D. Pandey Vs Union of India & Ors. dated 08.09.2016;
(ii) In OA No. 934/2018 titled Vaibhav Singh vs Union of India & Ors. dated 10.01.2020.6 OA No. 912/2022
Item No.24/C-5
5. Per contra, learned counsel for the respondents reiterated the averments made in the counter affidavit. He submitted that as per the DMRC Promotion Policy, minimum 34 points in APAR are required for promotion from the post of Assistant Manager to Manager. The rating of Very Good and Outstanding have been awarded a value of 8 and 10, respectively, thus minimum 1 Outstanding and 3 Very Good ratings are required for such promotion. The applicant was awarded 'Very Good' for the years 2017-18, 2018-19 and 2019-20. For the year 2020-21 also, he was rated as 'Very Good' by the Reporting Authority (JGM/Tract - Dy. HOD), which was accepted by the Reviewing Authority (Sr. GM/Civil - HOD) and Accepting Authority (Director/Infrastructure). The representation preferred by the applicant against the APAR rating was disposed of by the Accepting Authority, i.e. Director (Infrastructure) by retaining the 'Very Good' rating in the APAR 2020-21, vide order dated 31.01.2021. 5.1 The Performance Management Rules circulated vide Office Order dated 25.03.2021 are uniformly followed for all the employees of DMRC. As per the extant rules, only the Accepting Authority's remarks/decision shall be final and binding on the employee, which in the instant case is Director (Infrastructure). Accordingly, pursuant to the directions issued by the Hon'ble Tribunal dated 17.12.2021, reasoned and speaking order dated 14.03.2022 was passed by the appropriate authority.
7OA No. 912/2022 Item No.24/C-5 5.2 He further clarified that the applicant was given rating of 'Very Good' on majority of the attributes, i.e. 21 out of 29 attributes precisely, and was also given rating of 'Outstanding' on 2 attributes and 'Good' on 6 attributes, therefore, he was awarded overall rating of 'Very Good' in his APAR for the year 2020-21. Since he could not meet the eligibility criteria for promotion as Manager as per the DMRC Promotion Policy, he could not be promoted. The case laws relied upon by the applicant has no application to the facts of the present case and, hence, the O.A. is liable to be dismissed.
6. Heard the learned counsel for the respective parties at length and perused the pleadings/judgments placed on record.
7. The stand taken by the respondents is that as per para A.3-B.1 of the APAR guidelines 2020-21 issued by the DMRC vide Office Order dated 25.03.2021, the Competent Authority for the post of Assistant Manager/Manager is as under:
S.No. Description of Reporting Reviewing Accepting Category Level Level Level
1. AM & Manager Dy. HoD HoD Director (DGM/ Sr. (GM/sGM/ DGM/JGM/ CGM/ED) AGM/Sr.AGM) Further, as per para A.13 of the said guidelines, the APAR representation will follow the following channel: Reporting Authority (Remarks) → Reviewing Authority (Remarks) → Accepting Authority (Remarks/ decision). Only the Accepting Authority shall 8 OA No. 912/2022 Item No.24/C-5 give the ultimate rating, which should be final and binding on the employee.
8. In the instant case, pursuant to the directions issued by this Tribunal vide Order dated 17.12.2021 in O.A. No.2732/2021, the applicant submitted his representation to the Managing Director, DMRC vide Note dated 04.01.2022. However, he was advised vide Note dated 25.01.2022 by the JGM/HR/P that in terms of the orders of the Hon'ble CAT, the disposal of the representation would be done by the Appropriate Authority, i.e. Director (Infrastructure), and reiterated to submit his representation to the Director (Infrastructure). Accordingly, the applicant preferred representation dated 07.02.2022 through proper channel, which was forwarded by the Reporting and Reviewing Officers to the Director (Infrastructure), i.e. the Accepting Authority. The fact, however, remains that despite clear directions issued by this Tribunal vide Order dated 17.12.2021, the representation of the applicant was again rejected by the same Authority, i.e. Director (Infrastructure), who is not an appropriate and higher authority than the Accepting Authority, as per the law.
9. We have carefully gone through various decisions rendered by coordinate Benches of this Tribunal in identical cases, relied upon by the applicant. In O.A. No. 1679/2015 titled S.D. Pandey vs Union of India & Ors., this Tribunal vide Order dated 08.09.2016 observed and directed as under:-
9OA No. 912/2022
Item No.24/C-5 "The applicant, who is Deputy Chief Engineer (DCE) in the Railways, is aggrieved by the below bench mark entries in the APARs for the year 2012-2013 and 2013 -2014. For the post of DCE the reporting officer is the Chief Engineer, the reviewing officer is Chief Administrative Officer and General Manager (GM) is the accepting authority. He made representation dated 11.12.2014 against the below bench mark APARs for their upgradation, which was rejected by the Ministry of Railways, Railway Board vide order dated 28.11.2014 at the level of General Manager. He filed appeal before Member Engineering on 09.12.2014, which was again rejected at the level of GM vide order dated 29.01.2015. This order has been challenged on the ground that this order has been passed by the authority who is not competent. In this regard, learned counsel for the applicant relied upon the following judgments passed by the Hon'ble High Court of Delhi (i) Shri Tarsem Kumar vs Union of India and anothers, in W.P. C No. 5649/2013, decided on 01.10.2014.(ii) Union of India vs. Krishna Mohan Dixit, in W.P (C) No. 6013/2010, decided on 0.10.2010. He also relied upon the judgment dated 06.12.2012 passed by the Principal Bench, of this Tribunal in OA No.983/2012 in Dr.Rajendra Prasad vs. Union of India.
The ratio decided in these judgments is that any representation against the adverse entries of ACR/APAR has to be decided by an authority higher than the authority who was made entries in the ACR/APAR. xxx xxx xxx xxx Heard the learned counsel for the parties and perused the various judgments cited above and the ratio settled by the Apex Court. It is crystal clear that the ratio decided by the Courts is that representation against adverse ACRS/APARs should be decided by the authority higher than who have recorded the ACR/APAR. Since in the applicant's case the representation was decided by the same authority who recorded his APAR in the capacity of General Manager, therefore, the representation has to be decided by the next higher authority i.e. the Member Engineer. We, therefore, dispose of this OA with a direction to the Member Engineer, Railway Board to decide the representation dated 09.12.2014 and 02.01.2015 submitted by the applicant against the APARs for the year 2012-13 and 2013-14 on merits, giving detailed reasons. In case the Member Engineer takes a favourable view and upgrades these ACRS/APARS entries to 'bench mark level, the respondents shall consider the case of the applicant for promotion taking in view the new upgraded APARs. We set a time frame of 60 days from receipt of a certified copy of this order for Member Engineer to decide on the representation. No costs."
10. Similarly, in OA No. 934/2018 titled Vaibhav Singh vs Union of India & Ors. allowed vide Order dated 10.01.2020, it has been observed as under:
10OA No. 912/2022
Item No.24/C-5 "5. Invariably, the competent authority is the one, who is superior to the accepting authority. Assuming that the 3rd respondent is the highest authority in the establishment, the representation ought to have been considered by someone in the Railway Board or Ministry. There was absolutely no basis for the 3rd respondent in functioning as the competent authority, particularly when he has already acted as reviewing and accepting authority. If such a course is permitted, the entire exercise becomes futile.
6. We, therefore, allow the OA and set aside the impugned orders. The representation made shall be dealt with by a competent authority, who shall be superior to the third respondent. It is needless to mention that the competent authority shall call for the comments of the reporting authority and the reviewing authority and pass a detailed order on a consideration of the same, within a period of two months. There shall be no order as to costs."
11. We are further fortified by the observations made by the Hon'ble High Court of Delhi vide Judgment dated 01.10.2014 in W.P.(C) No. 5649/2013 titled Shri Tarsem Kumar vs Union of India and Another, which read as under:
"16. On who would be the Competent Authority to decide the representation made by an officer against the adverse remarks, it would be relevant to reproduce the extracts of OM No. 21011/1/ 2014- Estt. (A) Dy. No. 959029 dated 13.02.2014. "Department of Personnel and Training (Estt (A) Desk-II Ref: Ministry of home Affairs Notes (ITBP) on pre- pages regarding competent authority to decide the representation given in respect of entries in the ACR/APAR. (F. No. I.17015/10/APAR CELL/Inst/2009).
2. In terms of this Department OM No. 21011/1/2010- Estt.A dated 13.4.2010 and ON No. 21011/1/2005-Estt (A) (Petitioner-II) dated 14.5.2009, the representation of the officer concerned is to be decided by the competent authority. ON dated 14.5.2009 provided that the competent authority for considering adverse remarks under the existing instructions may consider the representation, if necessary, in consolation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation.
3. In terms of this Departments OM No. 51/5/72- EStt (A) dated 20.5.1972, all representations against adverse remarks should be examined by an Authority superior to the Reviewing Officer, in consultation, if necessary, with 11 OA No. 912/2022 Item No.24/C-5 the Reporting and Reviewing officers. The said Superior Authority shall be regarded as the Competent Authority to deal with such representations."
4. Under OM 21011/1/2005-Estt(A) (Petitioner-II) dated 14.5.2009 issued after the Supreme Court decision in Dev Dutt case, all entries in the APAR from 2008-09 onwards are being conveyed to the officer reported upon the representation. The Supreme Court had held as follows in Dev Dutt case:-
"We also hold that the representation must be decided by an authority higher than the one who gave entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness to public servants."
5. The representation preferred against the entries in the ACR/APAR by the concerned officer should be decided by an authority superior to one who gave the entry ACR/APAR in both situation either the organisation is following two tier (Reporting and Reviewing) or three tier (Reporting, Reviewing and Accepting Officer) system in writing of APAR.
JS (E) has seen.
Sd/-
(Prem Chand) Under Secretary (Estt. A) Desk-II"
17. Before we examine the aforesaid DoPT guidelines and the instructions annexed with the Appraisal report, let us recapitulate the brief controversy at hand. The case of the petitioner is for his promotion from the rank of Commandant to Senior Commandant came up for consideration before the DPC, which was held on 18th April 2011 and 23rd April 2012 and on both the occasions he was assessed as unfit; his juniors were promoted as against the vacancies of 2011-2011 and 2012-2013. As per the laid down guidelines, the five ACRs of the preceding years, with the benchmark of 'Very Good' were to be taken into consideration by the DPC; only in the ACR of the year 2008-2009 the petitioner had been assessed as 'Average' while in the other ACRs, he had been assessed as 'Very Good'. This 'Average' ACR of 2008-2009 is in fact the heart of controversy between the parties. (The respondents have not disputed the fact that the said below benchmark grading in the year 2008-2009 was conveyed to the petitioner at a belated stage, i.e., after a delay of about 10 months.) The petitioner had also made a representation dated 2nd August 2010 to challenge his downgrading in the ACR for the year 2008-2009, but his grievance is that his representation was decided on 17th February 2011 in total disregard to the various 12 OA No. 912/2022 Item No.24/C-5 guidelines issued by the DoPT time and again; and the same being conveyed by a non speaking order, without expressly dealing with the contentions raised by the petitioner in his representation. As per the petitioner, his representation should have been decided by the Officer higher to the rank of Accepting Officer in terms of the DoPT guidelines and therefore, there is no valid decision accorded by the Competent Authority on the said representation of the petitioner."
12. In view of the above settled position of law, it is crystal clear that the representation against adverse ACRs/APARs should be decided by the authority higher than who have recorded the ACR/APAR. Since in the present case, the representation has been decided by the same authority, i.e. the Accepting Authority in the capacity of Director (Infrastructure), we are of the considered opinion that the applicant's representation ought to have been decided by the next higher/superior authority, i.e. the Managing Director, the Respondent No.1 herein.
13. Resultantly, the O.A. is allowed and the impugned order dated 14.03.2022 is quashed and set aside. The Respondent No.1 is directed to consider and dispose of the applicant's representation dated 07.02.2022 within a period of four weeks from the date of receipt of a copy of this order. It is further directed that if his grading in the APAR for the year 2020-21 is upgraded, the applicant shall be considered for promotion as Manager retrospectively by the Departmental Promotion Committee within two months thereafter. It is made clear that if the applicant gets selected for promotion retrospectively, he shall be entitled for the benefit of seniority from 13 OA No. 912/2022 Item No.24/C-5 such date along with arrears of pay and other consequential benefits. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/