Central Administrative Tribunal - Delhi
S. L. Gupta vs Union Of India Through on 17 January, 2012
Central Administrative Tribunal Principal Bench OA No.3377/2011 New Delhi, this the 17th day of January, 2012 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) S. L. Gupta Retired SP, CBI, R/o 27, Type-IV, Nivedita Kunj, Sector-10, R. K. Puram, New Delhi 110 022. . Applicant. (Applicant is present in person) Versus 1. Union of India through Secretary Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, North Block, New Delhi. 2. Central Bureau of Investigation 58, New CBI Building, CGO Complex, Lodhi Road, New Delhi through its Director 3. Union Public Service Commission Through its Secretary Shahjahan Road, New Delhi. . Respondents. (By Advocate : Dr. Cha. Sahmsuddin Khan) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri S. L. Gupta, retired SP of CBI, the applicant herein, is aggrieved by the Memorandum dated 01.08.2011 (Annexure-A1) by which he was intimated that he would not be granted the benefit of representation against below benchmark grading as the OM dated 13.04.2010 issued by DOP&T would not be retrospectively applicable since the review DPC was held on 04.03.2009 prior to the issue of the said OM. He is also aggrieved of the Memorandum dated 7.09.2011 (Anneuxre-A2) issued by the second respondent conveying him that his request made in the representation against the below benchmark grading of ACR was not acceded to. He is also challenging the vires of the DOP&T OM dated 13.04.2010 only in respect of its applicability for future DPCs where the recommendations would be implemented prospectively. Challenging the above OMs and Memoranda dated 01.08.2011 and 07.09.2011, the applicant is before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
(a) to make applicable OM dated 13.04.2010 (Annexure A-3) of DOP&T to the review DPC to be held for the post of SSP in the case of the applicant also who has since retired.
(b) to direct the Respondent No.2 to consider the representations submitted by the applicant against the below benchmark grading of the ACRs for the years 2004 & 2006 and to give the benefit of the said representations in the review DPC.
(c) to direct all the Respondents to hold the review DPC for the post of SSP immediately and to convey the decision to the applicant within a period of one month and to re-fix the pension and pay the dues in the next one month.
(d) to direct the respondents to pay cost to the applicant for the harassment and mentally agony caused to him for no fault of his;
(e) to grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case.
2. This is the second visit of the applicant to the Tribunal. The first application he filed in OA No.2328/2009 relates to the imposition of punishment of censure in 2009 after 13 years for the alleged misconduct he committed in investigating a criminal case in 1986. This penalty was an impediment for his promotion and his juniors marched over him and got promotion and the recommendation of the DPC was put in sealed cover. He, therefore, agitated before the this Tribunal in the OA No.2328/2009 which was decided on 05.02.2010 allowing the OA and even the charge memo was quashed. The pertinent part of the Tribunal order reads as follows:-
14. In totality of the facts and circumstances of this case, while allowing this Application, we set aside the memorandum dated 27.6.1996 initiating departmental proceedings against the applicant, all proceedings taken in the matter, as also order dated 10.6.2009 inflicting the punishment of censure upon the applicant. In consequence of setting aside of the memorandum, proceedings and the order aforesaid, the applicant would be considered for promotion for all posts on which his juniors may have been promoted from the date they were promoted, and would be fixed in proper pay scales accordingly, which would be notional, but the pay and emoluments of the applicant shall be worked out as mentioned above and he would be paid post-retiral dues accordingly. These directions shall be complied with within six weeks from today. As we have already mentioned, the applicant has suffered irreparable damage which cannot be compensated, but surely, the applicant, for putting him through untold misery and hardship, would be entitled to costs, which we quantify at Rupees twenty thousand, which, we may mention, are only conciliatory and not compensatory.
Pursuant to the above order, his sealed cover was opened and he was promoted to the rank of Additional S.P. w.e.f. 31.05.2001 vide order dated 16.07.2010 (Annexure-A5) and was further promoted as S.P. w.e.f. 31.12.2004 vide order dated 22.03.2011 (Annexure-A6). It is the case of the applicant that he was conveyed below benchmark ACRs for the year 2004 and 2006 requesting him to submit his representations. He did submit representations on 31.05.2011 and 4.07.2011 (Annexure-A7 colly). The respondents, it is averred, have informed the applicant vide impugned Memorandum dated 01.08.2011 that the benefit of representation against below benchmark ACR grading cannot be granted to him as the review DPC has been held on 04.03.2009 when the OM dated 13.04.2010 has not been even in existence. Being aggrieved he submitted a representation dated 10.08.2011 (Annexure-A8) to which he was responded by stating that such benefit of representation could not be granted. As the said grading stood as impediment for his promotion to the rank of SSP when his juniors were promoted in April 2009, the applicant has approached the Tribunal in the instant OA.
3. The applicant who argued his case in person would submit that the action of the respondents in not giving him the benefit of representation against the below benchmark ACR gradings for 2004 and 2006 was in violation of the principles of natural justice and the law laid by Apex Court in Dev Dutt versus Union of India and Others [2008-7-SCALE-403]. His another contention was that the action of Respondent No.2 of first obtaining the representations of the applicant on the below benchmark grading by conveying him the ACRs for the years 2004 and 2006 on the basis of OM dated 13.04.2010 of DOP&T (Annexure A-3) and forwarding the same to the concerned reviewing / accepting authorities for their comments and thereafter to deny the benefit of the said representations and comments of the reviewing / accepting authorities on the basis of the same OM dated 13.04.2010 is totally illogical, illegal, baseless and it adversely affects the applicant. He cited the judgment of this Tribunal in Ashok Kumar Aneja versus Union of India [OA No.24/2007 decided on 7.5.2008] wherein this Tribunal held that downgrading from Very Good to Good and similar downgrading does amount to making of an adverse entry. Mandatorily these are required to be communicated to the persons who stand to be affected thereby. It was held that the reporting officer / reviewing officer who would be aware of the benchmark as laid down by the relevant orders, would be obliged to communicate the presence of the Good entry, as and when they recorded to the knowledge of the concerned officer, for him to avail steps to resort to appropriate measures. Referring to the OMs dated 13.04.2010 and 19.05.2011, he submits that law laid by the Supreme Court and this Tribunal is applicable prospectively and retrospectively and urges that to the extent both OMs indicate that those will be effective only prospectively should be declared illegal and appropriate direction should be issued to the respondents.
4. On receipt of the notice from the Tribunal, the respondents have entered appearance and filed the reply affidavit through Dr. Chaudhary Shamsuddin Khan, learned Senior Government Counsel. He would submit that the photocopies of his ACRs for the year 2004 and 2006 were provided to him vide Head Office letter dated 25.05.2011 and 29.06.2011 for submitting his representation, in case, he desired. The applicant submitted his representation dated 31.05.2011 and 04.07.2011. In order to get the comments of the officers concerned, Head office letters dated 01.07.2011 and 08.07.2011 were sent to them. In the meantime, DOP&T issued an OM No.21011/1/2005-Estt.A (Pt.II) dt. 19.05.2011 (Annexure A-4) directing therein that .Since, the provisions of the above OM dated 13.04.2010 (Annexure A-3) are applicable only for future DPCs where the recommendations will be implemented prospectively from the date of assuming charge of the higher appointment, the provisions will not be applicable to retired officers. Since the applicant retired on 31.01.2010, his case was put up for taking decision on his representation. The Review DPC was held on 04.03.2009. On this date the provisions of OM dated 13.04.2010 were not applicable. Thus, this benefit of representation against below benchmark grading was not granted to the applicant. Accordingly, the applicant was informed vide Head Office Memo dated 01.08.2011. That the applicant had submitted one more representation dated 10.08.2011 to the Director/CBI for grant of benefit of representations against below benchmark grindings to him in his ACRs for the year 2004 and 2006. The applicant was informed vide Memo dated 07.09.2011 that his representation had already been disposed off in view of the instructions issued vide OM dated 13.04.2010. In view of the Government guidelines, he submits that both OMs dated 13.04.2010 and 19.05.2011 are legally valid and impugned Memorandum dated 01.08.2011 and 7.09.2011 are legally sustainable. Hence, he submits to dismiss the OA.
5. Having heard the contentions of the parties with their assistance we perused the pleadings. The controversy for our determination is in narrow compass. Whether the impugned Memorandum dated 01.08.2011 and 7.09.2011 issued by the respondents basing on the OM dated 13.04.2010 and 19.05.2011 are legally sustainable?
6. We may refer to the legally settled position in the controversy. With regard to the below benchmark and downgrading of ACRs, it is now legally well settled principle in the service jurisprudence that any grading in the Annual Confidential Report of an employee of the Government, (a) which is below the benchmark prescribed for promotion to a higher grade in the employees service and (b) in case the Reviewing / Accepting Authority has down graded the grading given by the Reporting Authority, such ACR would be considered to be adverse remark. In this context, the Honble Apex Court in U. P. Jal Nigam Versus Prabhat Chandra Jain reported in JT 1996 (1) SC 641 (para 3) laid the ratio that any grading which has adverse civil consequences for an employee should be considered as adverse remark/grading. If the grading given to an officer is Good and is not considered Fit for promotion on the basis of such grading that being below the prescribed benchmark should be considered as adverse grading. The Honble Supreme Court in U. P. Jal Nigam case (supra) held as follows :-
3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. (emphasis supplied)
7. Though the above decision of the Apex Court remained confined to the employees of the U.P. Jal Nigam, the Honble Supreme Court in Dev Dutt Versus Union of India and Others [2008 (8) SCC 725] has taken up similar issues and in an elaborate judgment decided that irrespective of the grading the employees should be given the ACRs in order to represent if they feel like against any of the entries to ensure fairness and transparency in administration. In Dev Dutt case (supra), the law set is that non communication of below benchmark ACR is not only denial of opportunity to the employee but also illegal. We take the extract of paragraph 10, 11 and 45 of the judgment which reads as follows "10. In the present case the bench-mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appel-lant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the re-spondent are distinguishable."
.. 45. In our opinion, non-communication of entries in the Annual Confidential Re-port of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances fo promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
8. In Dev Dutt case (supra) the Honourable Apex Court developing the new principles of natural justice has held that fairness and transparency in public administration requires that all en-tries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant must be communicated to him within a reasonable period so that he can make a representation for its up gradation. This in the opinion of the Honourable Apex Court is the correct legal position even though there may be no Rule / Government Orders requiring communica-tion of the entry, or even if there is a Rule / Government Order prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution requires such communication and Article 14 overrides all rules or gov-ernment orders. The same view was upheld by the Honble Supreme Court in the case of Abhijit Ghosh Dastidar versus Union of India & Others decided on 22.10.2008 (Civil Appeal No.6227/2008). Further, a Larger Bench of this Tribunal considered the issue of downgrading of the grades by the Reviewing Officer in A. K. Aneja versus Union of India & Ors. decided on 7.05.2008 in OA NO.24/2007. In the said case, the Tribunal held that although the Reporting Officer had recorded Very Good grading, yet the officer reviewing the ACR had downgraded it to Good, which was below the bench mark of Very Good prescribed for promotion. The Tribunal took a view that such grading in the ACR was decidedly an adverse remark/grading and should be communicated to the Applicant, in that case, his representation be obtained and considered. The present case in this OA exposes that some of the ACRs were downgraded and as such the dicta in A. K. Aneja case (supra), would be applicable. We take the extract of Para 24 of the judgment which reads as follows :-
24. We have to presume that adopting a routine procedure; the downgrading of the entry for the year 2002-2003 brought about in respect of the applicant might have been for reasons, which have been considered as germane, adequate and relevant by the reporting authority. We can give them that much credit. In other words, he/she was of a definite opinion that markedly there occurred deficiency on the side of the applicant, either in the matter of work or conduct. When this surfaced, an assessment necessarily was to be incorporated in the service records as a truthful entry. On a corollary, if he had been maintaining his efficiency, there would not have been necessity for a downgrading. He was graded, therefore, as `Good. Although the term `Good cannot be considered as having a negative aura, the circumstances that it had replaced `Very Good amounted to downgrading, it was presumably for lapses detected, and necessarily it was, therefore, to be considered as adverse. The assessment Very Good, Good and Average are expressions, given in a nutshell, and it precedes opinions formed after a meticulous consideration. If the officer thought it fit not to give `Very Good and `Good alone, the opinion might have been formed only by a fall in the efficiency of the officer, of which he might not have been aware even. If the opinions formed were adverse, then alone, the final entry would have been the one, which in a syllable or two reflected the fall. Therefore, presence of adverse entries necessarily has to be inferred as available in the records. If that be so, the person concerned was not to be kept in dark about the assessment, we feel.
9. Pursuant to the law set in Dev Dutt case (supra) and A. K. Anjeja case (supra) Government of India issued guidelines in various OMs. Present OA brings to our notice whether two OMs dated 13.04.2010 and 19.05.2011 issued by the DOP&T are legally sustainable? We note that these two OMs have guided the respondents to issue the impugned Memorandum. We may dwell on these OMs in the first instance. The DOP&T OM dated 13.04.2010 deals with the procedure to be adopted by the DPC to deal with below benchmark gradings in the ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR for upgradation of the final grading. The relevant part of the OM reads as follows:-
.The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
10. The OM dated 19.05.2011 only reiterates the above clause. This OM inter alia provides the following:
it may be noted that only below benchmark ACR for the period relevant to promotion need be sent. This OM dated 13.4.2010 specifically provided that in case of upgradation of the final grading given in the APAR, specific reasons therefore may also be given in the order of the Competent Authority. Since the provisions of the above OM dated 13.4.2010 are applicable only for future DPCs where the recommendations will be implemented prospectively from the date of assuming charge of the higher appointment, the provisions will not be applicable to retired officers. In the instant case, the review DPC to promote the applicant took place on 4.03.2009 for which the ACRs of the applicant for the years 2004 and 2006, being relevant, the OM would cover the applicants claim to up grade his grading for those 2 ACRs. This is a typical case where the review DPC has to take place later on due to the quashing of the punishment imposed on the applicant. The clause future DPC appearing in the OM has been interpreted in the applicants case against him in the sense that the review DPC took place in 2009 whereas the Government OMs were issued in 2010 and 2011. We do not agree with the interpretation given by the respondents. Even if, the main DPC is to be considered as the basis, the law laid by Honble Apex Court in Dev Dutt case (supra) will also be retrospectively applicable. The issue raised is regarding the applicability of the judgment of Honble Supreme Court in Dev Dutt case (supra) prospectively and not retrospectively. It is trite law that the judicial decision and pronouncements where the ratio deci dendi is set, it is applicable retrospectively unless such pronouncements specifically mentioned that the law laid by the Honble Supreme Court would not have any retrospective effect. In this regard, we draw our strength from the judgment of Honble Supreme Court in the case of General Manager, Uttranchal Jal Sansthan versus Laxmi Devi & Others [2010 (1) SC 43]. In the background of the above settled position in law, the instant case if examined, we note that the judgment of the Honble Supreme Court in Dev Dutt (supra) is binding precedent and would have retrospective effect. Therefore, relying on the above DPCs/review DPC meeting prior to or later on the date of Apex court judgment in Dev Dutts case (supra) the law laid by the Apex Court in the case will be applicable. In view of the above, though the OMs issued by the DOPT dated 13.04.2010 and 19.05.2011 and the DPC/review DPC took place on 04.03.2009, we direct that the said OMs based on the Honble Apex Court judgment in Dev Dutts case (supra) will also apply for the DPCs / review DPC convened or to be convened for applicants promotion to SSP. It is admitted by the respondents that the below benchmark ACRs have been communicated and applicants representations have been received and even the views of the reporting and reviewing officers have been received. Instead of taking forward the same to logical conclusion, the respondents have done U turn by issuing two impugned orders. The response of the respondents not granting him the benefits of representation is not valid as per the extant law set by Honourable Supreme Court in Dev Dutts case (supra). .
11. The applicant has also challenged the vires of the DOP&T OMs dated 13.04.2010 and 19.05.2011 on the ground that that interpretation given by the respondents to mean that the future DPCs would not cover the DPCs held earlier for which review DPC is necessary or DPCs being held for the years prior to the date of issue of the DOP&T OMs. We have given our considerable thought to the above issue. We find that the OMs indicate that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period of 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion before such ACRs are placed before the DPC the concerned employee will be given a copy of the relevant ACR for his representation. This in our opinion is in no way infringes the rights of the applicant. The review DPC in his case held in 2009 will get covered by the OM dated 13.04.2010 and 19.5.2011 as (i) the ACRs for him relate to the years 2004 and 2006; and (ii) the applicants promotion case to the SSP grade needs to be considered only after respondents decide his representation again below benchmark gradings in the ACRs. Even if the applicant has retired in the year 2009 when his juniors got promoted he was in service. The said OMs of DOP&T need to have clarification. The respondents are directed to consider issuing specific clarification that where the review DPCs being held or DPCs being held prior to the issue of the Supreme court judgment in Dev Dutt case (supra) in such cases also the below benchmark ACRs are to be communicated to the official concerned, receive representation and decide whether to upgrade the overall grading or not. Once such clarificatory OM is issued by the respondents, misinterpretations being given or misinterpretations being done on the OM dated 13.4.2010 and 19.5.2011 may not advise and such clarification will meet the ends of justice and meet the grievances of those employees who suffer from non-consideration for promotion as applicant has faced in the present OA.
12. Taking into consideration the totality of facts and circumstances of the case, we come to the considered conclusion that the Memorandum dated 01.08.2011 and 7.09.2011 are legally unsustainable. Therefore, these two Memorandum are quashed and set aside. We direct the respondents to adopt the following procedure in the present case. (i) The respondents are directed to decide the applicants representation on the below benchmark ACR for the year 2004 and 2006; (ii) in case the applicant is successful in getting his grading for those 2 years ACR upgraded to the benchmark, the respondents are directed to convene a review DPC to consider applicants case for promotion to the post of SSP; (iii) if he is found fit for promotion to the SSP grade, the same shall be granted to him w.e.f. the date his juniors were promoted; (iv) he would be entitled to all consequential benefits in respect of seniority, and his pay shall be notionally fixed from that date to the date of his retirement; and (v) however his pension and other retiral dues are to be revised and arrears of pension and retiral dues shall be paid to him. Let the exercise, as ordained above, be completed within three months from the date of receipt of a certified copy of this order.
13. In the result, in terms of the above orders and directions, the Original Application having merits is allowed, leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/