Central Administrative Tribunal - Delhi
Chunni Lal vs Uoi & Ors. Through on 5 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.1203/2013 New Delhi this the 05th day of November, 2014 HONBLE MR. ASHOK KUMAR, MEMBER (A) HONBLE MR. RAJ VIR SHARMA, MEMBER (J) Chunni Lal, S/o Sh. Dhani Ram, R/o Qtr. No.2, Military Farm, Jhansi. Applicant (By Advocate: Mr. M.K. Bhardwaj) VERSUS UOI & Ors. through 1. The Secretary, Ministry of Defence, North Block, New Delhi. 2. The Quarter Master General, Quarter Master General Branch, Integrated Headquarters, MoD, West Block No.3, R.K. Puram, New Delhi. 3. The Dy. Director General, MF, Quarter Master General Branch, Integrated Headquarters, MoD, West Block No.3, R.K. Puram, New Delhi. Respondents (By Advocate: Ms. Sonia Sharma) :ORDER: SHRI ASHOK KUMAR, MEMBER (A):
Applicant is aggrieved with the respondents for not promoting him to the post of Manager in spite of outstanding service record and despite promotion of his juniors.
2. It is stated by the applicant in the OA that despite the improvement in performance in a commercial organization, such as Military Farm Jhansi, where the applicant was working and despite the performance of the organization being found outstanding in the inspections carried out in the years 2010, 2011-12 and 2012-13, he was not included in the panel for promotion to the post of Manager in the year 2012-13, issued on 30.01.2013, whereas the name of his juniors was included in the panel. He was never communicated reasons for not including his name in the panel, never got any below benchmark or adverse grading nor was he facing any disability which could be made basis to deny him promotion and / or resorting to sealed cover. He, therefore, submitted representation on 11.02.2013 which the respondents ignored and issued promotion order dated 21.02.2012 for promoting his juniors while ignoring the applicant.
3. Even in the matter of grant of financial upgradation under the MACP Scheme, he was discriminated against. Though persons similarly placed were granted financial upgradation under MACP Scheme, he was deprived of such benefit and was informed ultimately vide impugned letter dated 21.02.2013 that his case was considered but not recommended. No reasons were assigned for rejecting the claim of the applicant for grant of financial upgradation under MACP Scheme. The benchmark for grant of promotion as well as MACP was Good, and the applicant was never communicated any grading below the benchmark. In such a situation, he was required to be promoted. Even assuming that there was any below benchmark grading not communicated to him, the same was required to be ignored as per the judgment of the Honble Supreme Court in the case of Abhijeet Ghosh Dastidhar, which was also followed by the Honble High Court of Delhi in Union of India & Another Versus V.S. Arora & Others.
4. The applicant sought the following reliefs in this OA:-
(i) To declare the action of respondents in not promoting the applicant to the post of Manager from the date of his juniors namely Daljit Singh Rakhi and similarly placed person Pawan Kumar as illegal, arbitrary and unjustified and issue directions for promoting the applicant to the post of Manager and grant of financial upgradation under MACP Scheme from due date i.e. completion of 20/30 years of service by ignoring below benchmark un-communicated grading in the relevant ACRs.
(ii) To direct the respondents to hold review DPC for the year 2012-13 and consider the claim of applicant for promotion to the post of Manager and financial upgradation under MACP Scheme with all consequential benefits by ignoring the below benchmark grading in the ACRs for relevant period.
(iii) To quash and set aside the letter/order No.85681/MACP/Q/MF-1 dated 21.02.2013 & order dated 13.03.2013 and direct the respondents to hold review DPC and reconsider the case of applicant for promotion to the post of Manager with all consequential benefits including arrears of pay by ignoring below benchmark gradings contained in relevant ACRs considered by DPC which recommended promotion of juniors of applicant.
(iv) To quash and set aside the letter dated 30.01.2013 and order dated 21.02.2013 to the extent the applicant has not been promoted.
(v) To allow the OA with exemplary cost.
(vi) pass any further orders as this Honble Tribunal may deemed fit and proper considering the peculiar facts and circumstances of the case.
5. Counter reply has been filed on behalf of respondents stating that the applicant was awarded Censure vide letter dated 30.07.1984 (Annexure-R/1) and another Censure vide letter dated 28.11.1996 (Annexure-R/2). Thereafter, the applicant was awarded Censure again vide letter dated 27.08.1999 (Annexure-R/3). Objection has also been raised regarding the jurisdiction of this Bench in the absence of any Transfer Application being allowed stating that the present OA can only be filed before the Jabalpur Bench. Referring to the performance of Military Farm Jhansi, it is stated that it was the combined effort of the farm and the applicant cannot claim it to be his own personal performance. The applicant has been adjudged on the basis of instructions contained in letter dated 24.05.1989 and his performance has been found below average on account of punishments being awarded to him from time to time. He was considered by the DPC for promotion to the post of Manager but not found fit for promotion as he did not secure the prescribed benchmark. He was intimated the reasons for not being included in the panel of promotion vide letter dated 13.03.2013 (Annexure-R/4). It is also stated that the adverse remarks have been communicated to the applicant from time to time and a copy of such communication has been filed as Annexure-R/5 to Annexure-R/7 (colly). Respondents have, therefore, prayed that the OA be dismissed.
6. Rejoinder has been filed by the applicant reiterating the facts and also stating that the mention of Censure in the years 1984, 1996 and 1999 are misleading because he was promoted as Assistant Supervisor on 30.10.2002. It has been contended that if the applicant could be promoted in 2002 in spite of the aforesaid three censures, he could not be denied further promotion and upgradation after 2002 on the basis of the above referred three censures. As regards the jurisdiction of this Bench to adjudicate this OA, it has been stated in the rejoinder that the impugned order has been challenged before this Bench because the same has been passed in Delhi and, therefore, the cause of action has arisen in Delhi. It is stated that for this reason the OA is maintainable before this Bench. It is also stated that it has been wrongly mentioned by the respondents that the below benchmark remarks considered by the DPC for financial upgradation and promotion were communicated to the applicant from time to time. It has been alleged that the extracts of APARs referred in Annexure-R/5 to Annexure-R/7 were never provided to him and that he was made to sign the ACRs with the understanding that in all the three years i.e. 2010-11, 2011-12 and 2012-13, he had been granted Outstanding grading. The signatures were taken by the Presiding Officer in the beginning itself without copies being provided to him.
7. We have heard learned counsel for the applicant Mr. M.K. Bhardwaj, who urged the grounds stated in the OA and has also filed written submissions. Copies have been provided of the judgment of the Tribunal in OA No.1374/2012 dated 14.02.2013 in which the Tribunal while allowing the OA recorded as follows in para-9 & 10 of the order:
9. We have heard the learned counsel for the Applicant, Shri Mahesh Shrivastava and the learned counsel for the Respondents, Shri M.K. Bhardwaj. We have also perused the entire documents available on record. It is an undisputed fact that the Applicant was entitled for grant of the 1st and 2nd ACP benefits with effect from 09.08.1999 but they were granted to him only w.e.f. 01.10.2003. Though there were other reasons for not granting him the Ist and 2nd ACP benefits from the due date, i.e. 9.8.1999, the only surviving reason was that he did not have the ACRs of the required benchmark for the said purpose. Admittedly, those ACRs have never been communicated to the Applicant. Therefore, undoubtedly, the decision of the Apex Court in Abhijit Ghosh Dastidars case (supra) would apply in the case of the Applicant.
10. We, therefore, dispose of this OA and with direction to the respondents to follow the judgment of the Honble High Court of Delhi in Union of India and Another with connected cases Vs. V.S. Arora and Others (supra) in this case also. In other words, the Respondents shall hold a Review Meeting of the Screening Committee ignoring the uncommunicated below benchmark ACRs of the Applicant which have been considered by it in its meeting held on 17.05.2010. Instead it shall consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered. If this is also not possible, all the available CRs should be taken into account. Thereafter, if the Applicant is found fit, he shall be granted the 1st and 2nd ACP benefits with effect from 09.08.1999 considering the fact that he was working as SDO-III in the scale of Rs.5000-8000 as admitted by the Respondents themselves. We further direct the respondents that they shall give all the consequential benefits including arrears of pay and allowances to the Applicant till his date of retirement and revision in pensionary benefits thereafter. It goes without saying that the Applicant will also be entitled for consideration for the benefit of 3rd ACP under the Modified Assured Career Progression Scheme which came into effect from 19.05.2009 as he has retired from service only on 30.06.2009. We also direct the respondents that they shall comply with the above directions within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
8. Copy of the judgment in the case of Abhijeet Ghosh Dastidhar Versus Union of India, 2009 (16) SCC 146 has also been produced. In that judgment, the Honble Apex Court has held as follows regarding the issue of non-communication of below benchmark entries:-
8. Coming to the second aspect, that though the benchmark very good is required for being considered for promotion, admittedly the entry of good was not communicated to the appellant. The entry of good should have been communicated to him as he was having very good in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case, SCC p.738, para 41) relied on by the appellant. Therefore, the entries good if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. (emphasis added)
9. In the judgment of the Honble High Court of Delhi in Writ Petition (C) No.5042/2002 delivered on 31.05.2012 in Union of India & Another Versus V.S. Arora & others, it was observed as follows in para-25:-
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above.
10. On the other hand, counsel for respondents, argued as per the contention in the counter reply, that the below benchmark ACR has been communicated to the applicant, and further that because of his below benchmark entries, the DPC has not found him fit for promotion. It was stated that this was duly communicated to the applicant on 13.03.2013, copy of which is enclosed as Annexure-R/4.
11. We have perused the intimation at Annexure-R/4 on the subject of non-consideration of applicants name in the DPC panel in which in para-2 it has been stated that the applicant was included in the DPC for promotion but was not found fit for promotion as he had not secured the minimum prescribed benchmark. At annexure-R/5 is a copy of the receipt of the Confidential Report duly signed by the applicant which does not contain any details except the signature of the applicant and does not even state the contents of APAR communicated to him nor any signature with remarks of the Head of Service in the relevant column. At Annexure-R/6 is a copy of another receipt signed by the applicant regarding receipt of the contents of APAR communicated to him on 18.10.2012. At Annexure-R/7 is a similar receipt of contents of APAR communicated to the applicant on 11.09.2012. These documents do not at all provide any information as to what was communicated to the applicant, nor is there any authentication as to what remarks had been recorded in the related ACRs or the name/designation of the Official who had written the said remarks. Annexure-R/5, Annexure-R/6 and Annexure-R/7 are extremely vague and lack in details and, therefore, cannot be relied upon. The respondents have thus not been able to establish specifically as to which ACRs were below benchmark and what was communicated to the applicant. In the absence of any such details in the ACRs of the relevant years, the aforenoted contention of the respondents cannot be accepted.
12. In view of above, we are not satisfied with the explanation offered by the respondents for not granting the MACP benefits, as well as the denial of benefit of promotion to the applicant and thereby overlooking the applicants case while giving the benefit of MACP/promotion to his juniors or other similarly situated persons. The decision of the Honble Supreme Court in the matter of Abhijeet Ghosh Dastidhar (supra) would definitely be applicable in this case.
13. In so far as the denial of benefit of MACP/promotion to the applicant on the ground that he had been awarded censure on three occasions in 1994, 1996 & 1999 are concerned, we agree with the applicants contention that having been granted the benefit of promotion as Assistant Supervisor in the year 2002, this could not have come in way of grant of MACP/promotion to the applicant subsequently, if he otherwise fulfilled the criteria for such benefit.
14. Yet another objection raised by the respondents is regarding the filing of the OA before the Principal Bench of the Tribunal instead of at Jabalpur since the applicant was posted at Jhansi at the time of filing the OA. We have considered this aspect and find that as pointed out by the applicant, the impugned order dated 13.03.2013 at Annexure-A/1 has been issued at Delhi. The applicant is, therefore, entitled to file the OA before this Bench in terms of Rule 6(ii) of the Central Administrative Tribunal (Procedure) Rules, 1987 since the cause of action has partly arisen within the jurisdiction of this Bench.
15. The OA is, therefore, disposed of with the directions to the respondents to hold a review DPC meeting as well as review meeting of the screening committee for considering the applicants case afresh for promotion as well as for MACP. While doing so, the non-communicated ACRs which were considered below benchmark relating to the applicant will need to be ignored and in case ACR of a particular year is not available, ACR of the preceding year shall be considered. The recommendations of the review DPC and the review screening committee shall, thereafter, be considered by the respondents under the rules and regulations and decision taken shall be communicated to the applicant through a reasoned and speaking order. The exercise shall be completed within a period of four months from the date of receipt of a copy of this order.
16. It is clarified that we have made no observations or passed any order regarding the suitability of the applicant, or otherwise with respect to his claim for MACP/promotion.
17. O.A. is allowed to the extent indicated above. No costs.
(Raj Vir Sharma) (Ashok Kumar)
Member (J) Member (A)
/jk/