Central Administrative Tribunal - Delhi
V. K. Vashisht S/O Ram Prakash Vashisht vs Union Of India Through on 7 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3444 of 2011 Reserved on : 7th February, 2012 Date of decision : 7th March, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) V. K. Vashisht S/o Ram Prakash Vashisht, R/o .No.58, Sector 37, Faridabad, working as Deputy Secretary in Cabinet Secretariat, Govt. of India, Room No.7, Bikaner House Annexe, Shahjahan Road, New Delhi-110011. Applicant ( By Shri R. N. Singh, Advocate ) Versus 1. Union of India through Cabinet Secretary, Government of India, Rashtrapati Bhawan, New Delhi. 2. Secretary (R) Cabinet Secretariat, Room No.7, Bikaner House Annexe, Shahjahan Road, New Delhi. Respondents ( By Shri T. C. Gupta, Advocate ) O R D E R Justice V. K. Bali, Chairman:
The simple question raised by V. K. Vashisht, the applicant herein, in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, is as to whether there has to be a review Departmental Promotion Committee (DPC) in case the ACRs, on the basis of which an employee may have been found to be unfit by the DPC, on representation made by him, are upgraded commensurate to the prescribed benchmark.
2. The facts on which the question aforesaid emanates, in brief, reveal that the applicant joined the services of the respondents as Deputy Field Officer (Tele) in Telecom cadre on 07.06.1976. The applicant got his promotions as per his turn from 1984 to 1991, first on the post of Field Officer (Cr.) in Crypto cadre and then as Senior Field Officer. In 1998, once again, as per his turn, the applicant came to be promoted as Under Secretary. The next higher promotional post is that of Deputy Secretary. In the DPC held on 12.03.2007, the case of the applicant along with others came up for consideration on the post of Deputy Secretary, wherein ACRs for the period 2001-02 to 2005-06 were under consideration. The applicant was superseded in the matter of promotion on the post aforesaid by his juniors S/Shri K. M. Parihar, G. Narayan and Naresh Wadhwa. Another DPC was held in July, 2008, wherein too, the applicant was not recommended, and his juniors S/Shri Sudhir Khurana and S. Ramaswamy were promoted. On both occasions, the applicant was overlooked in the matter of promotion by his juniors as some of his ACRs were not commensurate to the benchmark. Aggrieved by his non-promotion, the applicant made a representation on 02.01.2008. The same was, however, rejected on 24.01.2008 by a non-speaking order stating that his case would be considered by the next DPC as and when the same would meet. The applicant submitted further representations on 29.07.2008, 31.12.2008 and 12.06.2009 for reviewing his ACRs. His last representation came to be rejected by the respondents vide order dated 06.07.2009 on the ground that the new system was introduced with effect from the reporting period 2008-09, and that the applicant should refrain from representing on the same ground. Aggrieved, the applicant issued a legal notice on 20.07.2009 calling upon the respondents to promote him on the post of Deputy Secretary from the date his juniors were promoted. The respondents would not react to the same, thus constraining him to approach this Tribunal by way of an Original Application bearing OA No.2888/2009. Pursuant to notice issued to the respondents, they entered appearance and by filing their counter reply pleaded that the benchmark for promotion to the post of Deputy Secretary is very good and that only those ACRs containing adverse entries need to be communicated, and further that the case of the applicant was considered by the DPC in 2007 as also in 2008 along with other eligible Under Secretaries, but it did not recommend his name. In the meanwhile, on 28.04.2010, the respondents themselves forwarded photo-copies of the ACRs of the applicant for the years 2004-05 and 2006-07 requiring him to submit representation, if any. On receipt of the ACRs aforesaid, the applicant submitted his representation on 11.05.2010. The same was considered by the competent authority, which decided to upgrade the grading from good to very good in respect of both the ACRs aforesaid. Communication dated 11.10.2010 in that regard was also sent to the applicant. In view of this favourable development, the applicant withdrew his OA No.2888/2009. On 08.11.2010, yet another DPC was held, by which time the two ACRs of the applicant, as mentioned above, had since been upgraded commensurate to the benchmark, and the applicant was found fit and promoted on the post of Deputy Secretary vide order dated 22.11.2010. When the ACRs of the applicant referred to above were upgraded commensurate to the benchmark, the applicant made representation on 25.11.2010 to promote him to the post of Deputy Secretary from the date his juniors were promoted, by constituting a review DPC. The applicant followed the representation aforesaid by two more representations dated 07.02.2011 and 23.03.2011. When the same, however, brought no tangible results, present Original Application seeking a direction to be issued to the respondents to constitute review DPC to consider the promotion of the applicant from the date when he was first so considered and ignored, and to promote him from the said date, came to be filed.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their counter reply contesting the cause of the applicant. Be it in the pleadings or during the course of arguments, it may be specifically mentioned that there is no dispute as regards factual matrix laid in the OA for the desired relief. All that is, however, pleaded and urged is that earlier there was no provision for communicating below benchmark ACRs, and that only adverse remarks were required to be communicated, and it is only recently vide DOP&T OM dated 13.04.2010 that instructions have been issued to provide ACRs for the earlier periods. The only defence projected by the respondents cannot be accepted. The law on the issue has been firmly settled by two decisions of the Honble Supreme Court in Dev Dutt v Union of India & others [(2008) 8 SCC 725] and Abhijit Ghosh Dastidar v Union of India & others [Civil Appeal No.6227 of 2008, decided on 22.10.2008]. All reports that may adversely affect an employee, including such reports which may be good, when the benchmark for promotion is very good, have to be communicated. The instructions issued by DOP&T, referred to above, came about in compliance of the judgments passed by the Apex Court as noted above, but that does not mean that if an employee had below benchmark ACRs prior to declaration of law, the same need not have been communicated at all. The Honble High Court of Delhi in a recent decision dated 08.10.2010 in WP(C) No.6013/2010 and connected writ petitions, in the matter of Union of India v Krishna Mohan Dixit, etc., which were filed against the orders of the Tribunal, while modifying the directions given by the Tribunal, and after referring to the entire case law on the subject available on that date, has held that the below benchmark ACRs have to be communicated, and if on representation made by the employee concerned, the same are upgraded commensurate to the benchmark, review DPC has to be constituted.
4. In view of the discussion made above, this Original Application is allowed. A direction is issued to the respondents to constitute review DPC as expeditiously as possible and preferably within a period of six weeks from today to consider promotion of the applicant on the post of Deputy Secretary when he was first overlooked by his juniors, as fully indicated hereinbefore. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/