Central Administrative Tribunal - Delhi
Sh. H. R. Bangia vs Union Of India Through on 16 January, 2014
Central Administrative Tribunal
Principal Bench
OA No.1653/2012
Reserved on : 10.01.2014
Pronounced on : 16.01.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Birendra Kumar Sinha, Member (A)
Sh. H. R. Bangia
S/o Sh. Nathu Ram Bangia
R/o B-71A of Platinum Independent Floors,
ArdeeCity,
Gurgaon 122011. Applicant.
(By Advocate : Ms. Jasvinder Kaur)
Versus
1. Union of India through
Secretary
Ministry of Women & Child Development,
Room No.601, A Wing,
Shastri Bhawan,
Dr. Rajendra Prasad Marg,
New Delhi 110 001.
2. National Institute of Public Cooperation &
Child Development through
Chairperson,
5, Siri Institutional Area,
Hauz Khas,
New Delhi 110 016.
3. Mr. P. K. Barua
(Retd. Deputy Director of NIPCD)
R/o D-4, NIPCD Campus,
Opposite PS Hauz Khas,
New Delhi 110 016. . Respondents.
(By Advocate : Sh. Gajendra Gir proxy for Mrs. P. K. Gupta for
Respondent No.1.
Sh. H.D. Sharma for Respondent No.2.
: O R D E R :
Dr. Birendra Kumar Sinha, Member (A) :
The instant OA is directed against the Memorandum dated 27.07.2011 (Annexure A-1) issued by Respondent No.2, being the principal Respondent, finding the applicant unfit for promotion to the post of Administrative Officer, which was communicated to him vide order dated 27.07.2011 (Annexure A-2).
2. The applicant has sought the following relief by this OA:-
(i) May quash and set aside the impugned Review DPC conducted on 27.04.2011 and order dated 13.3.2012 whereby the decision of review DPC has been communicated to Applicant;
(ii) Direct the Respondents to promote the Applicant to the post of Administrative Officer and consequently to Deputy Director (Admn.) with effect from the date Respondent No.3 was promoted;
(iii) Respondents No.1 & 2 be directed to fix the pay of applicant in view of Relief sought at (i) & (ii) and pay arrears of pay and emoluments to the applicant.
(iv) And, may pass such other further orders/directions deem fit and proper in the facts of the case in favour of the applicant.
(v) Allow the present Original Application with costs in favor of the applicant.
3. Further the applicant has filed MA No.814/2013 seeking an additional relief which the applicant contents had not been considered by this Tribunal while deciding the TA No.59/2010. The same is as under:-
In view of the aforesaid facts and circumstances and in the interest of justice and fair play this Honble Tribunal be pleased to allow the present Misc. Application and the relief sought be made part of para 8 (Relief sought) of main Original Application;
And, may direct the Respondents No.1&2 to release his increment withheld from April 1984 till July, 1997 on actual basis;
And, may pass such other orders/directions deem fit and proper in the facts and circumstances of the case.?
4. Admittedly, this is the second round of litigation amongst the contending parties. The case of the applicant in brief is that he had earned adverse remarks in respect to his ACRs for the years 1985-86 and 1987-88. These remarks were subsequently expunged vide order dated 9.07.1997. In the meantime, the DPC for the post of Administrative Officer had promoted his junior officer one Shri. P. K. Barua, who figures at Respondent No.3 in the instant OA. The applicant approached the Honble High Court of Delhi vide Writ Petition (Civil) No.2085/1998 which was remanded to this Tribunal vide order dated 13.05.2010 for consideration and the same was registered as TA No.59/2010. The said TA was decided on 3.02.2011 with a direction to Respondent No.1 to convene a review DPC for the year 1989 for consideration of applicants promotion to the post of Administrative Officer, the date from when the Respondent No.3, admittedly the applicants junior, was promoted. This Tribunal further directed that a review DPC for the post of Deputy Director (Administration) also needed to be convened for the year 1994 when the Respondent No.3 had been promoted with all the consequential benefits. The review DPC was accordingly held on 27.04.2011 wherein the applicant was found unfit for promotion. The applicant has challenged this order on the following grounds.
5. The principal ground adopted by the applicant in the OA is that the applicant is a whistle blower who has brought many of the misdeeds and acts of malfeasance to light. It was on this count that the respondents were unhappy with him and were determined to exit their vengeance on him by denying promotion to him. His ACRs had been purposely recorded adverse. Even after the order of expunction of adverse ACRs have been passed, his ACRs have been destroyed and the DPC held on 27.04.2011 was only an eye wash in order to avoid the contempt proceeding arising thereof. The records of ACRs were placed before the DPC and, therefore, the proceedings of the DPC were lawful and binding. The applicant further alleges that the Respondent No.3 was a favorite of the respondent organization and, therefore, though his ACRs were also missing in the year 1987-88, one S.A. Khan, Regional Director, Guwahati who was not a Member of the DPC was entrusted with the task of restructuring the ACRs of Respondent No.3. The applicant additionally alleges that though S. A. Khan was not even a Gazetted Officer and, therefore, he was not competent to attest the ACRs of Respondent No.3, yet the Respondent No.3 was assessed Very Good and promoted. Thus, the applicant contends that it is a apparent case of nexus and manipulations which needs to be deeply probed.
6. The respondents have filed the counter affidavit, wherein, they have denied the contentions made in the OA and prayed for its dismissal. The respondents have submitted that the applicant was charge sheeted on 16.04.1984 under Rule 11 of CCS (Conduct) Rules, 1964 for retaining copies/extracts of official documents unauthorizedly with himself and was imposed a penalty of withholding of one increment for a period of one year with cumulative effect. He was considered for promotion on 9.01.1989 along with Respondent No.3 and was found unfit. But he was promoted to the post of Section Officer on 12.10.1990. However, on 20.05.1997, the applicant was communicated the decision to expunge his adverse ACRs for the years 1985-86 and 1987-88 but the respondents had not agreed to his request for the review DPC and had released the increment withheld in April, 1984 on notional basis. The applicant retired on 30.06.1998 and has since indulged in mudslinging and character assassination of Section Officers including the Director of the Institute one Dinesh Paul.
7. Coming to the critical issue of destruction of ACRs, the respondents in Para 4.12 of their counter affidavit have admitted that the ACRs of the applicant had been destroyed but not due to malice, but instead in exercise of due discharge of the record management of the Institute. The respondents have referred to the instructions dated 20.05.1972 which inter alia provides that the ACRs of a retired government servant may be destroyed after a period of five years from the date of his retirement. For shake of better elucidation, the words of the counter affidavit are reproduced here:-
4.12.Shri H. R. Bangia retired on 30.06.198. And when the ACRs of similarly placed official were destroyed his also got destroyed. It was a routine act and not deliberate as alleged. However the other service records as are available in the respondent Institute were relied upon and considered by the review DPC as narrated above.
8. The respondents have further submitted that the ACRs of all persons falling within the retirement category were destroyed as a routine matter in discharge of official business and there is no malice or malafide to be read in it. Regarding the case of Respondent No.3, the Answering Respondent states that he was found fit for promotion by the DPC and the respondents had followed the instructions regarding the ACRs. The respondents have further submitted that despite the fact that the ACRs have been destroyed did not make any difference to the consideration by the review DPC as the review DPC had taken these facts into account and had found him unfit for promotion.
9. The agenda note prepared for the review DPC worth need to be gone into in order to shed light on the subject. We find that the following paragraphs are germane to the whole issue:-
3. The post of Administrative Officer in the pay scale of Rs.2200-4000 was to be filled up by promotion through Selection from amongst (i) Section Officer with three years of regular service (ii) Assistant Administrative Officers/Section Officer (A/Cs) with four years of regular service (iii) failing which by transfer on deputation. The zone of consideration for one post is five. Accordingly, the DPC held on 09.01.1989 considered the candidature of the following eligible candidates:
Shri H. R. Bangia, Assistant Administrative Officer Shri P. K. Barua, -do-
Shri S. C. Gawri, -do-
Shri G. B. Srivastava, Section Officer (Actts.) Shri P. K. Sarma, -do-
4. The DPC which met on 09.01.1989 considered the above candidates on the basis of their performances as reflected in their ACRs and recommended the following select list together with the finding of the said committee and the same is as under:-
S.No. Name Grading
1. Sh. H. R. Bangia Considered. Not fit for promotion
2. Shri P. K. Barua Very Good and found fit for promotion.
Xxxxx xxxxx xxxxx
9. It may be further mentioned that ACRs dossier of only Shri P. K. Barua and Shri G. B. Srivastava are available as on today. The ACRs dossiers of Shri H. R. Bangia, Shri S. C. Gawri and Shri P. K. Sarma are not available. However, Institute has a photocopy of Annual Confidential Report of Shri . R. Bangia for years 1985-86 and 1987-88 and a Comparative Assessment of ACRs of Sh. H. R. Bangia, Assistant Administrative Officer for the last ten years from file No.4-21/89-TR of the Department of Women and Child Development in which the matter for expunction of Adverse Remarks in ACRs in r/o Shri H. R. Bangia, AAO was processed. The General Assessment of ACRs is placed below at Annexure-B. The same may be perused by the Review DPC. It may further be mentioned that DPC on the basis of performance as reflected in the ACR had graded Shri P. K. Barua as Very Good as mentioned in the minutes of the meeting of DPC held on 9th January, 1989.
10. The Review DPC may also take into the account the then DP & AR OM No.22011/3/76-Est. (D), dated 22.12.1980 and 22011/6/75-Estt.(D), dated 30.12.76. Para 12.3 of the said OM provides that where promotions are to be made by selection method as prescribed in the Recruitment Rules, the field of choice viz., the number of officers to be considered should ordinarily extended to 5 or 6 times, the number of vacancies expected to be filled within a year. The Officers in the field of selection, excluding those considered unfit for promotion by Departmental Promotion Committee, should be classified by the Department Promotion Committee as outstanding, Very Good, and Good on the basis of their merit, as assessed by the DPC after examination of their respective records of service. In other words, it is entirely left to the DPC to make its own classification of the officers being considered by them for promotion to selection posts, irrespective of the grading that may be shown in the CRs. The panel should, thereafter, be drawn up to the extent necessary by placing the names of the Outstanding Officers first, followed by the officers categorized as Very Good and followed by the officer categorized as good. The inter se seniority of officers belonging to any one category would be the same as their seniority in the lower grade.
11. In view of he above, the Review DPC may access the suitability of Shri H. R. Bangia for promotion to the post of Administrative Officer from the date his junior was found fit and was promoted.
10. The respondents have cited the following decisions in support of their contentions:-
1. UPSC versus K. Rajaiah and Others (2005) 10 SCC 15.
2. Union of India and Another versus S. K. Goel and Others (2007) 14 SCC 641).
3. State of M. P. vs. Surendra Nath, IAS and Anr. decided on 8.12.2005 by the Madhya Pradesh High Court; 2006 (1) MPHT 215.
4. V. R. Reghuvarma vs. UOI & Others OA No.644 of 2012 decided on 3.01.2013
11. The entire issue now boils down to only one consideration that whether the review DPC was competent to decide on the basis of comparative statement of ACRs without the actual ACRs being available. It is an admitted fact that the ACRs were destroyed. The relevant files of the department have been produced before us. We find that the actual destruction has taken place in pursuance to the provisions of rules regarding the destruction and preservation of records and the ACRs of a large number of employees who fall within these categories have been destroyed including the officers senior and junior to the applicant. Therefore, we refused to have any malafide motive in this act of destruction.
12. Coming to the competence, the first point for our attention is that on whose satisfaction the decision of the DPC is taken. Whether it is the satisfaction of the members constituting the DPC or whether the judicial courts are competent to substitute their own satisfaction for that of the DPC. We may simply say that this matter is no longer res integra and there are a number of decisions on this subject.
13. In the case of UPSC versus K. Rajaiyah and others 2005 (10) SCC 15, the first respondent could not be selected on the ground that he did not get the gradation of Outstanding for four years in a block of five years. The Selection Committee graded him Outstanding for three years and Very Good for one year. It was the case of the 1st respondent that while making selection to the Indian Police Service from the Andhra Pradesh State cadre he was not selected while officers inferior to him in merit were selected. This contention was rejected by the Tribunal on the basis of his ACRs. However, the Honble High Court allowed the writ petition filed by the respondent on the ground that the Selection Committee had considered only the ACRs and not the service records. The Honble High Court further held that it was not possible to make categorization on the basis of ACRs. The Honble Supreme Court relied upon the decided case in National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana Raman 1992 (Suppl) 8 SCC 481 where the Hoble Court had held as under :-
9.
Even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R. S. Dass v. Union of India (SCC at p.633) In the next paragraph, the learned Judges indicated as to what is expected of the Selection Committee, in the following words (SCCp.485, para8) We may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The fairness or fair procedure in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. That being the legal position, the Court should not have faulted the so-called down gradation of the first respondent for one of the years. Legally speaking, the term downgradation is an inappropriate expression. The power to classify as outstanding, very good, good and unfit is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5 (4), it is not a legal requirement hat reasons should be recorded for classifying an officer at variance with the State Governments decision. xxx xxxx xxxx
13. Taking an overall view and having due regard to the limitations inherent in judicial review of selection process by an expert body, we are not inclined to nullify the decision taken by UPSC.
14. The above position has been supported in the case of Union of India and Another vs. S. K. Goel and Others (2007) 14 SCC 641, wherein the Honble Surpeme Court has held as under:-
27. In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. In the present case, DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent 1 did fulfill the benchmark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service and the Customs and Central Excise Service.
15. In the case of Surendra Nath (supra), the Honble High Court has supported this very provision that the scope of judicial review of the merits of a selection to a civil post is very limited and the Tribunal is not expected to play the role of an Appellate Authority or an umpire on the acts and proceedings of the DPC and it would not sit on judgment over the selection of the DPC unless the selection is assailed as being vitiated by malafides or arbitrariness.
16. In the case of V. R. Reghuvarma versus UOI & Others (OA No.644 of 2012 decided on 3.01.2013), the Ernakulam Bench of this Tribunal relied upon the case of Union of India vs. A. K. Narula [2007 (11) SCC 10], wherein it has been observed as under:-
the guidelines give a certain amount f play in the joints to DPC by providing that it need not be guided by the overall grading in Confidential Reports, but may make its own assessment on the basis of the entries in Confidential Reports. DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, malafides or arbitrariness, that the selection calls for interference. Where DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by DPC, the Court will not interfere.
17. Here we also consider; whether the comparative statement of the ACR was sufficient for the Review DPC to arrive at his satisfaction. In this regard, it is pertinent to extract the wordings of the minutes of the DPC meeting held on 27.04.2011, which reads as under:-
3. The Review DPC also considered the agenda and minutes of DPC held on 09.01.1989. It is noted that the DPC held on 09.01.1989, inter alia, considering the officers of the feeder cadre eligible for promotion as per Recruitment Rules of the post of Administrative Officer in the pay scale of Rs.2200-4000 (pre-revised) noted that the candidature of Shri H. R. Bangia along-with Shri P. K. Barua was considered and the grading awarded against Shri Bangia Considered. Not fit for promotion and against Shri P. K. Barua, the grading was given as Very Good and found fit for promotion.
4. Having considered the absence of ACRs being not available and the factum of expunging the adverse remarks in the ACRs for the year 1985-86 and 1987-88, all the official records made available as per agenda note including the grading available in the comparative assessment of ACRs available in the then Department of Women and Child Developments file bearing no.4-21/89-TR in which the matter for expunction of Adverse Remarks in ACRs in r/o Shri H. R. Bangia, AAO was processed, Shri H. R. Bangia does not meet the minimum bench mark of Good for promotion to the post of Administrative Officer and is Not fit for promotion. Accordingly, the Review DPC recommends that Shri Bangia is Not fit for promotion as Administrative Officer as per the then Recruitment Rules and the instructions issued by DP&AR OM No.22011/3/76-Estt.(D), dated 22.12.1980 and 22011/6/75-Estt.(D), dated 30.12.76 prevailing on the date of DPC i.e. 09.01.1989.
18. In this regard, the aforementioned judgments clearly enunciate that it is the DPC which is the best judge as to how it is going to arrive on his satisfaction and sets its own benchmarks. There is no case of interference for courts or Tribunals in that process. The same principles are also attracted to the facts of the instant case. Had the DPC being of the opinion that the material placed before him was insufficient for it to arrive at a decision, it would have so recorded. However, it is a conscious decision of the DPC to hold the applicant unfit. We feel that this cannot be interfered with as this would amount in sitting in judgment over the decisions of the DPC as an Appellate Authority.
19. Now, we may also take up the question of increment raised as an additional relief in MA No.814/2013 filed on 15.03.2013. To hold in this regard that this relief had already been claimed and was considered by this Tribunal vide its order dated 3.02.2011 passed in TA No.59/2010, the fact is that it does not find mention in the body of the order itself may be construed as a deliberate omission. In any case, we have no basis to interfere otherwise. Any interference with the same would tantamount to reversing previous order of the Tribunal which is not under challenge.
20. In consideration of the discussions above, we find that the applicant has failed to make out a cogent case for quashing the recommendations of the DPC and the impugned order, as totally devoid of substance and contrary to the pronouncements of the Honble superior courts. Therefore, we dismiss the Application without costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam) Member (A) Chairman /pj/