Central Administrative Tribunal - Delhi
Dr. Indira Saranath vs Union Of India (Uoi) And Ors. on 22 May, 2007
Equivalent citations: [2008]1STJ194(NULL)
JUDGMENT V.K. Agnihotri, Member (A)
1. In this O.A. the applicant has sought quashing and setting aside of the orders of the official respondents dated 06.12.2006 and 08.12.2006 promoting private respondent Nos. 3 to 9, along with a direction to the official respondents to promote the applicant as Chief Medical Director (CMD, for short) in the Higher Administrative Grade (HAG, for short), with consequential benefits.
2. The bare facts of the case are that the applicant was recruited to Indian Railway Medical Service (IRMS, for short) in the year 1972. She was appointed as AMO, ADMO and then as DM0. She was promoted in the year 2002 to Senior Administrative Grade (SAG, for short) w.e.f. 20.10.2000. The next higher grade is CMD (HAG), for promotion to which she is eligible. However, the official respondents issued two promotion lists on 06.12.2006 in which allegedly certain juniors of the applicant were promoted as CMD (HAG) and some others were appointed as CMD (SAG), while the applicant was overlooked. Hence the O.A.
3. To put things in perspective, for a better appreciation of the facts and circumstances of the case, we would like to place on record certain dates, events and ad interim orders of this Tribunal as well as of the Hon'ble High Court of Delhi relating to the proceeding of the case before this Tribunal and the Hon'ble High Court of Delhi. When this O.A., filed on 13.12.2006, was listed for admission on 14.12.2006, this Tribunal directed as follows:
Heard.
Issue notice to the respondents, returnable on 29.01.2007.
The prayer for interim relief is kept open till the respondents appear. In the case of future promotion, the respondents are not precluded from considering the applicant's case, if she is otherwise eligible.
Issue DASTI.
4. Immediately thereafter, and before the next date of hearing, the applicant filed M.A. No. 2330/2006 on 18.12.2006, with the following prayer:
Clarify the order dtd. 14.12.2006 to state that the respondent Nos. 1 and 2 to consider the applicant's case for future vacancy of CMD (HAG), pending petitions....
When this M.A. No. 2330/2006 was taken up for consideration on 20.12.2006, the Tribunal ordered as follows:
M.A. 2330/2006:
No order need be recorded in the M.A. Accordingly, it is disposed of.
List the O.A. 05.01.2007.
Issue 'Dasti'.
On 25.01.2007, the Tribunal, after hearing the Counsel for the parties, reserved order on interim relief to be delivered on 29.01.2007. Accordingly the following order was pronounced:
ORDER (On Interim Relief) By Justice P. Shanmugam, Chairman: Applicant has prayed for the following interim reliefs:
(a) Stay the operation of the impugned communications dated 06.12.2006 and 08.12.2006 to the extent and pertaining to respondent Nos. 3 to 9 who are junior to the applicant but are being promoted/posted as CMD, pending disposal of this application; and/or
(b) Pass any other order or orders protecting the interest of the applicant including her rights and interest to the post of CMD(HAG).
2. Against the interlocutory order passed by this Tribunal dated 20.12.2006 in M.A. No. 2330/2006, the applicant moved the Hon'ble High Court and vide order dated 10.1.2007, the Hon'ble High Court recorded the statement of the Counsel for respondents 1 and 2 that the applicant's case shall be considered for the two vacancies said to arise in January, 2007 and the matter was directed to be listed on 8.2.2007.
3. Though in M.A. 2330/2006, the prayer of the applicant was for consideration of her case for the two vacancies and the stand of the respondents, before the Hon'ble High Court, was recorded that she would be considered for the two vacancies, the applicant presses for a stay order of the impugned communication or at the least to block the conversion of the two posts of CMD in the scale of Rs. 22,400-24,500 be converted or downgraded as S.A. Grade.
4. The applicant's contention is that by downgrading the two posts on the plea of non-availability of suitable officer, the respondents may make appointment on transfer instead of by promotion.
5. The learned Counsel appearing for the respondents has stated that it is true that the H.A. Grade posts are to be filled up on the basis of the positive act of selection on merit. However, some of the H.A. Grade posts are downgraded by the Competent Authority in administrative exigencies and in public interest. As and when the officers empanelled in H.A. Grade are available, these posts will be upgraded to that Grade. It is also stated that even against the downgraded posts of CMD, the performance of the officers, including that of the applicant, has to be taken into account. Therefore, they pray that no interim order may be granted in this matter especially when the matter is pending before the Hon'ble High Court.
6. We have heard the Counsel in extensio and considered the matter carefully. The Railway Board as per their resolution dated 28.3.2000 laid down the principles and procedure for making appointments to the posts in the scale of Rs. 22,400-24,500 for various Group 'A' Railway Services. The eligibility criteria and the method of empanelment have been set out.
7. The main submission of the learned Counsel for the applicant is that persons, who are ineligible for promotion to the post of CMD, H.A. Grade, were considered for those posts by downgrading the posts to S.A. Grade appointing them by transfer. The impugned order dated 6.12.2006 is one such order and it is stated that the officers at S1. No. 3 to 6 are not qualified as per the resolution of the Railway Board for promotion, they were appointed on transfer. But within two days thereafter, on 8.12.2006, a promotion order was issued to six officers on the basis of the recommendations of the DPC to H.A. Grade CMD.
8. Though it is submitted that the applicant was not found fit in the DPC for the purpose of consideration for appointment by promotion, there is no acceptable reason for appointment as per the list dated 6.12.2006 by transfer and downgrading the posts.
9. We are not convinced with the stand of the respondents that the H.A. Grade posts are downgraded in administrative exigencies and in public interest by the Competent Authority and appointments are made on transfer. In other words, what the respondents cannot do by promotion, they are indirectly posting the officers as CMD by downgrading the H.A. Grade to S.A. Grade. It will deprive of the eligible officers and the purpose for which the higher grade posts are created.
10. In the above circumstances, the applicant has made out a case for an interim order that two vacancies that are to be arouse should not be downgraded as S.A. Grade posts and should be considered as H.A. Grade as Chief Medical Director and consider as per the resolution of the Railway Board dated 28.3.2000.
11. We are satisfied that the applicant has made out a prima-facie case for an interim order on the basis of the existing Railway Board's order. Accordingly, we direct the respondents not to downgrade the two posts as S.A. Grade and treat those posts as H.A. Grade for the post of Chief Medical Director.
12. Post the O.A. on 20.2.2007. Dasti.
5. In the meanwhile, the applicant had filed W.P. (C) No. 210/2007 before the Hon'ble High Court of Delhi with reference to order of this Tribunal dated 20.12.2006 aforementioned. The Hon'ble High Court of Delhi ordered as follows on 10.01.2007:
We have noticed a rather disturbing trend in the order of the Tribunal dated 20th December, 2006 which reads as follows:M.A. 2330/2006
No order need be recorded in the M.A. Accordingly, it is disposed of.
List the O.A. on 05.01.2007.
Issue 'Dasti'.
We find that this method of disposing of an M.A. by saying that no reasons needs to be recorded and accordingly, the M.A. is disposed of, entirely unsatisfactory and it is not proper to dispose of a miscellaneous application (M.A.) in this manner without recording a reason. This clearly amounts to failure to exercise the jurisdiction warranting a writ of mandamus. We have no doubt that this must have been done inadvertently and quasi-judicial authority such as the Central Administrative Tribunal could not have intended such a disposal. However, we hope and trust that such non-reasoned orders shall not be passed while disposing of the application. In so far as the merit of the matter is concerned, the learned Counsel for respondents No. 1 and 2 on instructions of the instructing officer states that petitioner's case shall be considered for the two vacancies said to arise in January, 2007.
List on 8th February, 2007. Dasti.
6. W.P. (C) No. 210/2007 was finally disposed of on 13.02.2007 with the following directions:
1. Rule DB. With the consent of the learned Counsel for the parties this writ petition is taken up for final hearing. The petitioner has challenged the interim orders dated 14th December, 2006 and 20th December, 2006 passed by the Central Administrative Tribunal (hereinafter referred to as the "CAT') in O.A. No. 26.12.2006 and the matter is now listed on 20th February, 2007 before the CAT.
2. The learned Counsel for the respondent states that he will co-operate with the learned Counsel for the petitioner in the urgent disposal of the matter and consequently prays that this Court may direct the CAT to dispose of the matter not later than two months from 20th February, 2007. Accordingly, we request the CAT to dispose of the matter not later than two months from 20th February, 2007, as the pleadings are almost complete and the petitioner undertakes to file the rejoinder by the next date before the CAT. Needless to say that a DPC shall be constituted by the respondent according to DOPT Circular dated 10th April, 1989 bearing O.M. No. 22011/5/86, Estt. (D) and the concerned Resolution of the Railway Board dated 28th March, 2000. In this view of the matter, no further orders are called for and accordingly, the writ petition stands disposed of along with CM. 365/2007 and CM. 366/ 2007.
3. The fact that the petitioner would have less than one year's service left before her retirement at the time of consideration of her candidature shall not come in the way of promotion, in case she is found fit for the post as the lis was pending prior to this period becoming less than one year.
7. On 14.03.2007, when the matter came up for hearing before this Tribunal, it ordered as follows:
It is conceded position that the Resolution dated 28.03.2000 (Annexure R-2) has been challenged for the first time in the rejoinder after the respondents tried to contest the claim of the applicant on the basis thereof. During the course of the arguments, learned Counsel for the applicant contends that it would be better to amend the original application itself. Surely, in that event, the respondents would have chance to contest the application based upon challenge to Annexure R/2 dated 28.03.2000. Request made by the learned Counsel for the applicant to amend the original application necessitates adjournment. The amended application be filed two days before the date fixed, with an advance copy to the opposite Counsel who may file the counter on the date fixed itself.
Interim order shall continue till further orders. List the case on 21.03.2007.
The applicant filed M.A. No. 581/2007 accordingly on 17.03.2007 inter alia enclosing a copy of the Amended O.A.
8. On 21.3.2007, the Tribunal ordered as follows:
M.A. No. 581/2007, M.A. No. 582/2007 and M.A. No. 583/2007 Issue notice on M.A. Nos. 581/2007, 582/2007, and 583/2007. Mr. Krishna, learned Counsel appearing for respondents accepts notice.
List it on 29.3.2007. By which date, reply to M.As., if any, must be filed. The relevant records of the case would be made available at the time of final hearing.
9. On 29.03.2007, the Tribunal directed as follows:
It is seen that respondents ought to have filed their reply to M.As. Learned Counsel for applicant submitted that there is urgency because of the order of the High Court for expeditiously disposal. Respondents should ensure to file reply before the next date of hearing.
To be listed on 3.4.2007 as Item No. 1 in Regular Matters.
10. The official respondents filed the counter reply to the amended O.A. on 02.04.2007. On 03.04.2007, the Tribunal further directed as follows:
To be listed after lunch on 5.4.2007 since a copy of the reply affidavit is formerly served on the applicant only today.
On 05.04.2007, the Tribunal directed as follows:
Rejoinder is yet to be filed. Applicant seeks time, which is not opposed. To be listed on 17.4.2007 on top of the list after the part-heard matters.
Thereafter, the applicant filed the rejoinder on 13.04.2007. On 17.04.2007, the Tribunal ordered as follows:
Learned Counsel for applicant seeks an adjournment on the ground of personal difficulty. She also states that she has spoken to Sh. VSR Krishna, learned Counsel for respondents about the adjournment.
As prayed for, list on 20.4.2007 on the top of the list after the part-heard matters.
11. The O.A. was finally heard on 20.04.2007 and 21.04.2007. On the final date of hearing, the learned Counsel for the applicant was directed to provide a copy of the written brief, which was made available to us on 25.04.2007. The interim order of this Tribunal passed on 29.01.2007 has been continued till date.
12. The Hon'ble High Court of Delhi in order dated 13.02.2007 had directed that this Tribunal should dispose of the matter not later than two months from 20.02.2007 as the pleadings were almost complete and the petitioner had undertaken to file the rejoinder by the next date. However, as aforementioned, it so transpired that the applicant filed M. A. No. 581/2007 on 19.03.2007 seeking permission to amend the O.A. in order to challenge the Resolution of the official respondents dated 28.03.2000, which was filed by the official respondents along with their counter reply. The request of the applicant was allowed and notices in the said M.A. were issued on 21.03.2007. The official respondents filed their counter reply to the amended O.A. on 02.04.2007 and the applicant filed her rejoinder thereto on 13.4.2007. Thus pleading could be completed only on 13.04.2007. The matter was heard soon thereafter. However, on account of the developments mentioned above it has not been possible for this Tribunal to dispose of the O.A. within the period of two months from 20.02.2007, prescribed by the Hon'ble High Court of Delhi.
13. A couple of facts need to be clarified before we proceed further. The applicant had sought quashing of official respondents' communications dated 06.12.2006 and 08.12.2006. The learned Counsel for the official respondents has clarified that both the impugned orders were issued on 06.12.2006. It is on account of poor quality of facsimile copy of the second order that the date appears to be 08.12.2006. Secondly, the learned Counsel for the official respondents has clarified that the information given to this Tribunal and the Hon'ble High Court initially, that two vacancies of CMD (HAG) were to arise in January, 2007, was factually not correct. This point was clarified by the official respondents in their pleadings before the Hon'ble High Court follows:
10. That on 10.01.2007, on the instructions of the instructing officer, 1d. Counsel for respondent Nos. 1 and 2 had submitted before this Hon'ble Court that the petitioner's case shall be considered for two vacancies said to arise in January, 2007. The factual position, as can be seen from the submissions made above, is that the petitioner already stands considered both for promotion to H.A. Grade as CMD against vacancies arising up to 30.06.2007 as well as for the post of CMD by temporarily operating the H.A. Grade posts in S.A. Grade. The submission made before this Hon'ble Court was without knowledge of the factual position obtaining in the relevant records. Therefore, the deponent tenders unconditional apologies for the same.
Finally, the relevant meeting of the Selection Committee was held on 10.08.2006 and not on 21.08.2006, as stated by the applicant in her pleadings.
14. The applicant has stated that in 2002, when she was considered for promotion to the post of Senior Administrative Grade, her record upto the year 2000 was considered. The record would show that she definitely had a grading of "very good". But since 2001, after her promotion to the post of SAG, she has been subjected to frequent transfers. Her ACRs were written by several officers. There is no communication from the Railway Board or the authorities indicating that there has been a fall in the grading of her ACRs, which would disentitle her to future promotion. As per the brochure of the Railway Board pertaining to the Confidential Reports, including the writing of ACRs, the fact of fall in the grading requires to be communicated, The fact that the applicant was never communicated any adverse comments in her confidential reports clearly goes on to show that she was fit for promotion and ought to have been promoted. Further, if any grading is lower than the minimum required and is lower than the benchmark, which is considered as adverse, it has to be communicated to the officer concerned. Since it was not communicated to the applicant, it has to be ignored and the applicant's earlier "Good" and "Very Good" ratings have to form the basis of her evaluation for promotion. Moreover, the immediate superior, who writes the ACR of the applicant, is the DRM. The said person is a Non-medical Officer. It is not understood as to how a Non-medical Official could assess the performance of a Medical Officer.
15. The applicant has stated that during her tenure as SAG Officer, on account of being a tough task master, she had incurred the displeasure of her colleagues and subordinates. In this context, she had also written to the Director General, Railway Health Service (DG, RHS, for short) listing the good work done by her as well as expressing her concern that it may not be assessed properly and, therefore, the ACRs may not have been properly recorded. The applicant had also suggested constitution of a Central Moderating Authority to moderate the writing of the ACRs in order to ensure a level playing field. The applicant has stated that there might have been a biased attitude among her superiors during the years 2003 to 2005 on account of the apprehensions aforementioned in her letter to DG, RHS.
16. The applicant has further contended that respondent No. 3, who is junior to the applicant, has only 45 days of service left. He would retire on 31.01.2007. The post of CMD at South Central Railways is a HAG Post. With a view to accommodate respondent No. 3, the post has been downgraded to SAG. Similarly, respondent No. 9, Dr. Manju Seewal, who has been promoted as CMD to North Eastern Railways, which is an HAG post, has been downgraded to SAG only with a view to accommodate her. Dr. Vipin Pandey, respondent No. 7, has been posted as CMD by operating the HAG post of CMD at SAG in East Central Railways. Similarly, respondent No. 8, Dr. Nini Bawa, was allowed to function as Acting CMD in SAG for more than 6 months by the General Manager. Now she is being confirmed as CMD in SAG by the impugned orders of promotion. Again, respondent No. 6, Dr. Krishna Kumar, who is otherwise junior to the applicant, has been given promotion to the post of CMD, HAG overlooking the claim of the applicant. Moreover, respondent No. 4, Dr. K.C. Kar, and respondent No. 5, Dr. A.N. Patra, who are junior to the applicant, have been promoted as CMD in SAG. From the above, it is very clear that official respondents, who are conferring the status of CMD or promoting the personnel to the post of CMD, HAG, have adopted a discriminatory approach.
17. The applicant has further submitted that the Selection Committee was not constituted in accordance with the Resolution dated 28.3.2000 of the Railway Board, inasmuch as in Para 2 of the said Resolution, it is stated that a functional member should be a member of the Selection Committee, especially when the Chairman, Railway Board is also a functional member. The Railway Board does not consist of any member, who is from IRMS, and the Chairman, Railway Board, is also not from IRMS.
18. Government of India, Department of Personnel and Training (DoPT, for short) has issued a circular, O.M. 2201 l/5/86-Estt(D), as amended, dated 10.04.1989, which applies to all Departmental Promotion Committees (DPC, for short). The functions and compositions of the DPC and the procedure to be followed by them have been account in that circular, which was brought on record before the Hon'ble High Court in affidavit dated 06.02.2007 of the applicant. The Hon'ble High Court thereafter, on consideration of the matter, has held that Selection Committee ought to be constituted in accordance with the DoPT circular dated 10.04.1989 and the concerned Resolution of the Railway Board dated 28.03.2000. The applicant has, therefore, submitted that the Selection Committee ought to consist of a functional member dealing with officers of IRMS. The applicant has further argued that as there is no Member (Medical) in the Railway Board, the head of IRMS, i.e. DG, RHS, should have been associated with the Selection Committee.
19. The applicant has also contended that official respondents have not only violated Resolution dated 28.03.2000 by downgrading the post of CMD (HAG) and appointing 6 persons to the post of CMD (SAG) but have also acted in contravention of the interim order of this Tribunal dated 29.01.2007, which is not sustainable. They have not established expediency in public interest or consulted DoPT for the relaxation. On the while, the method of selection and appointment is not transparent and as such the selections made ought to be struck down.
20. The applicant has also argued that the method of writing of the ACRs of the applicant is wrong as the applicant, during five years from 2002-2006, served in 5 different assignments, and therefore, her ACRs were written by different officers from various divisions in different zones. There is no Central Moderating Authority to assess her work insofar as it has varied responsibilities in various situations. The procedure of assessment of ACRs by the Selection Committee is also not transparent. The applicant, therefore, has stated that it is in the interests of justice that the ACRs of the officers, who have been promoted as CMD (HAG) and also of those who have been given CMD (SAG), vide the two impugned orders dated 06.12.2006 and 08.12.2006 be called for and perused by this Tribunal, along with the records of the Selection Committee and its recommendations for promotion of IRMS Officers to the post of CMD (HAG).
21. The official respondents have stated that as regards the HAG/IRMS Panel for the year 2005-2006, the Competent Authority assessed the performance of eligible officers, including the applicant. However, some of them, including the applicant, were not recommended for promotion to HAG. Those who were recommended have been promoted to HAG in terms of Railway Board's letter dated 06.12.2006. Thus, having been considered for promotion to HAG by the Competent Authority and having not been recommended for the same, the applicant does not have any legitimate grievance. Therefore, the present O. A. is devoid of merits and deserves to be dismissed. None of the officers junior to the applicant have been promoted to HAG, vide order dated 06.12.2006. So far as the other order dated 06.12.2006 is concerned it will be seen that it relates to posting of SAG/IRMS Officers as CMD in SAG itself. There is no promotion involved and, hence, the applicant cannot have any grievance in that regard too.
22. As regards downgrading of certain HAG posts of CMDs to SAG, it was done by the Competent Authority to meet administrative exigencies and in public interest. As and when officers empanelled in HAG become available, these posts will be upgraded to HAG. It may be added that even for posting against the downgraded post of CMD, the performance of the officers, including that of the applicant, was taken into account.
23. The official respondents have further stated that there are 9 organized Group 'A' services in the Indian Railways, namely:
(i) Indian Railway Service of Engineers (IRSE)
(ii) Indian Railway Traffic Service (IRTS)
(iii) Indian Railway Service of Mechanical Engineers (IRSME)
(iv) Indian Railway Service of Electrical Engineers (IRSEE)
(v) Indian Railway Store Service (IRSS)
(vi) Indian Railway Service of Signal Engineers (IRSSE)
(vii) Indian Railway Personnel Service (IRPS)
(viii) Indian Railway Accounts Service (IRAS)
(ix) Indian Railway Medical Service (IRMS)
24. In addition to the above, there are a large number of other services/departments like Security, Legal, Printing and Stationery, Chemist and Metallurgist (CMT), Public Relations, Schools and Degree Colleges, etc. There are 7 Members of Railway Board headed by the Chairman. Their pay is Rs. 26,000 fixed. The distribution of their duties are as under:
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Sl. Name and status Services/Departments under No. their control
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1. Chairman & ex-officio Corporate Coordination, Planning, Principal Secy. to GOI Efficiency & Research Public Relations, Information & Publicity, etc.
2. Financial Commissioner Accounts, Finance, Statistics, & ex-officio Secy. Economics, Pay Commission, etc.
3. Member (Electrical) & Electrical Engg., Signal & Telecom.
ex-officio Secy. Engg., Railway Electrification, etc.
4. Member (Engineering) Civil Engg., Land Management,
& ex-officio Secy. Konkan Railway Corporation, etc.
5. Member (Mechanical) Mechanical Engg., Stores,
& ex-officio'Secy. Mechanical Workshops and PUs.
6. Member (Staff) & ex- Personnel, Medical, Security,
officio Secy. Law, Vig., Official Language, etc.
7. Member (Traffic) & ex- Transportation, Commercial &
officio Secy. Operations. Catering & Tourism,
Safety, Coaching, etc.
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25. There are two posts of Director General/Railway Health Services and Director General/Railway Protection Force in the Railway Board. Their pay is also Rs. 26,000 fixed, like that of Member of Railway Board. But they are neither members of Railway Board nor do they have the status of Member and ex-officio Secretary to Government of India. But these DGs report of Member (Staff):
26. The official respondents have further stated that DPC for promotion to the following grades:
(i) Jt. Administrative Grade Rs. 12,000-16,500 (ii) Selection Grade Rs. 14,300-18,300 (iii) Sr. Administrative Grade Rs. 18,400-22,400
consist of all Members of Railway Board as per letter dated 26.09.1989, amended on 03.06.2002. The letter dated 26.09.1989 was an adoption of DoPT O.M. dated 10.04.1989, referred to by the applicant. So far as IRMS is concerned, there is no Member from Medical Department on the DPC. However, the applicant was considered for promotions to the above grades by the DPC as aforesaid and was promoted from time to time. DPC for promotion to HAG (Rs. 22,400-24,500), comprises of members as laid down in Resolution dated 28.03.2000, i.e. Chairman/Railway Board, Secretary/DoPT and one Member of Railway Board. In the case of promotion to HAG of IRMS, the third Member is Member (Staff). The Resolution dated 28.03.2000 has been framed and issued with the approval of DoPT. Therefore, the contention of the applicant that the DPC for promotion to HAG/IRMS has not been constituted as per DoPT's guidelines is wrong. Moreover, since DG, RHS is not a Member of the Railway Board, he cannot be made a functional Member in the DPC for HAG of IRMS, as contended by the applicant.
27. The official respondents has further contended that letter dated 03.06.2002 nowhere states that the DPC can also go outside the ACRs and make its own assessment. What has been stated is that the DPC is not guided merely by the gradings recorded in the ACRs, but makes its own assessment on the basis of various entries in the ACRs, including several parameters and attributes. Therefore, the apprehensions of the applicant are unfounded.
28. The official respondents have also argued that in the case of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan etc. , the Hon'ble Supreme Court have held that "it is not the function of the Court to hear appeals over the decision of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee, which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure violating the selection, etc."
29. The applicant, in her rejoinder, apart from reiterating and elaborating on various averments made in the main O.A., has stated that the Hon'ble Supreme Court had held in the case of Union of India and Anr. v. Lalita S. Rao and Ors. , that the date of entry into the service is to be considered as the date of seniority, and the seniority shown in the list as on 01.08.2006 represents her correct position at the time of the meeting of the Selection Committee held on 21.08.2006/10.08.2006.
30. Shri M.A. Rangaswamy, ably supported by Mr. Shekhar, Senior Counsel and Ms. Radha Rangaswamy, all Counsel for applicant, during the course of oral arguments as well as in the written submissions presented later, raised the following main contentions, in addition to the averments aforementioned:
(i) The orders of the Hon'ble High Court of Delhi dated 10.01.2007 and 13.02.2007 are not independent of each other. The two orders read together necessarily mean that the official respondents are obliged to hold a properly constituted DPC to consider the case of the applicant for the post of CMD (HAG) against available vacancies.
(ii) Even if, for arguments sake, the validity of the grading 'VG+' for HAG is accepted, it is still clearly less than the grading 'outstanding'. The applicant having been promoted to SAG in the year 2002 had apparently already earned the grading 'Very Good' in terms of the criteria mentioned in the official respondents' Circular dated 03.06.2002 (supra). Thus, if in the year 2006 the DPC met to consider the applicant for promotion to HAG, they would have taken into consideration only three additional ACRs for the years 2003-04, 2004-05 and 2005-06 for the purpose. The applicant naturally had at least 'VG' ACRs for the earlier two years by virtue of already having been promoted to SAG on that basis. During the years 2003-04 and 2004-05, the applicant did outstanding work, which she had reported to DG, RHS. Thus, even with a 'Good' or 'Very Good' ACR for the year 2005-06, the total would have come to 2 VG + 2 Outstanding + 1 Good or VG, thus making a final grading of the applicant 'VG+'. In any case, if ACRs of the applicant were downgraded, they could not have been taken into consideration since the fact was not communicated to her. The ratio of the judgment of the Hon'ble Supreme Court in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. , still holds the field in this regard in spite of the subsequent judgment of the Hon'ble Supreme Court in the case of Union of India and Anr. v. Major Bahadur Singh . In this context, the learned Counsel also cited the judgment of the Hon'ble Supreme Court in the case of Badrinath v. Government of Tamil Nadu and Ors. , which summarizes the principles relating to assessment of ACRs by DPC by applying the Wednesbury principle. The learned Counsel for the applicant further cited judgments of the Hon'ble Supreme Court in the case of UPSC v. K. Rajaiah and Ors. ; Mrs. Anil Katiyar v. Union of India and Ors. and of Hon'ble Delhi High Court in the case of J.S. Garg v. Union of India and Ors. to argue that there is scope for confusion in evaluation of ACRs and, therefore, the DPC has to be extra careful in interpreting the criteria.
(iii) The system of writing ACRs has serious defects, particularly since the instructions for writing ACRs are not being meticulously followed. Moreover, as far as the applicant is concerned, DG, RHS should have a say in the writing of the ACRs of the applicant in order to ensure professional assessment of her performance.
(iv) The decision of the official respondents to appoint some of the SAG Officers as CMD is bad in law in view of the order of this Tribunal in the case of Sh. N.J. Pandya and Ors. v. Union of India and Ors. 1989(2) SLJ 192 (CAT).
(v) This Tribunal may compare the ACR of the applicant with the ACRs of all the persons who were promoted, particularly the ACRs of Dr. Krishna Kumar, in order to see whether the ACRs of the applicant are better or worse than those of the others, in order to arrive at an appropriate conclusion in respect of the relief prayed for by the applicant.
31. Mr. V.S.R. Krishna, learned Counsel for the official respondents, during the oral arguments, made the following submissions:
(i) In spite of the liberty granted by this Tribunal to file an amended O. A., the applicant has not specifically challenged the Resolution/Circular of the official respondents dated 28.03.2000 and 03.06.2002 as can be gathered from the relief clause of the amended O.A. This Tribunal cannot direct giving of promotion to the applicant. It can only issue a direction for conventing a review DPC to consider the case of the applicant. However, the applicant has not prayed for convening a review DPC in the amended O.A.
(ii) The genesis of the Resolution dated 28.03.2000 and Circular dated 03.06.2002 is the DoPT Circular dated 10.04.1989 and, therefore, they are in conformity with it. If Circular dated 03.06.2002 is bad in law according to the applicant, then her promotion to SAG in terms of the said Circular is also unsustainable.
(iii) As regards the seniority of the applicant vis-a-vis the others, who have been promoted/appointed as CMD, the Railway Board had issued order promoting various officers to SAG dated 12.04.2002 (a copy of which was supplied during the arguments). In the said order, in particular, Sh. Krishan Kumar is at serial No. 55 whereas the applicant is shown at serial No. 62. Hence, the contention of the applicant that her juniors have been promoted, bye-passing her, is wrong.
(iv) There is nothing wrong with the ACR system, which has been evolved over a period of time and has stood the test of time. The 3-tier system of recording ACRs has been designed to remove bias. As far as the applicant is concerned, the DRM, even though he is in the same grade as the applicant, has been authorized to initiate her ACRs because he is the Head of the Department/Organization at the Divisional level and the applicant reports to him. He is, therefore, legitimately the Reporting Officer. As regards incorporating the views of a medical expert in the ACR, the Reviewing Authority in the present system is CMD.
(v) As regards the issue of the official respondents having made a statement before this Tribunal regarding existence of two vacancies in January, 2007, it was incorrect and this matter was accordingly brought to the notice of the Hon'ble High Court of Delhi while tendering an unqualified apology.
(vi) The Hon'ble High Court, in order dated 13.02.2007, while directing constitution of DPC, had not only referred to the DoPT's Circular dated 10.04.1989 but also to the Resolution of the Railway Board dated 28.03.2000.
32. Private respondents have not participated in the proceedings.
33. We have heard the learned Counsel for the parties at length and perused the material on record, including the various citations as well as relevant orders and circulars so helpfully placed before us by the respective Counsel. We have also perused the Confidential Reports File of the applicant as well as the proceedings of the DPC constituted to prepare a panel for the year 2006-07, for promotion of SAG Officers of IRMS to HAG.
34. Before we proceed to decide the main application, we would like to record our orders on various miscellaneous applications filed by the parties.
MA. No. 380/200735. This M.A. has been filed by the applicant for grant of ad interim stay of the filling up of one vacancy, which has arisen in January, 2007 and/or any future vacancy of CMD (HAG) which would arise during the pendency of the O.A. It also seeks direction to the official respondents to consider the applicant for the post of CMD (HAG) by a validly constituted Selection Committee and appoint her to the post accordingly. The applicant has also enclosed copies of affidavits filed by her before the Hon'ble High Court of Delhi. The documents are taken on record. However, as far as consideration of applicant's case by DPC is concerned, since final orders in the O.A. itself are being recorded now, this M.A. will be decided along with the O.A. M.A. No. 581/2007
36. This M.A. has been filed by the applicant in compliance of the order of this Tribunal dated 14.03.2007 (supra). Notice was, thereafter, issued to the official respondents to file a reply, by the order of this Tribunal dated 21.03.2007. The official respondents filed their reply to which the applicant has filed her rejoinder. M. A. is allowed and revised O. A. along with the reply of official respondents and applicant's rejoinder thereto are taken on record.
MA. No. 582/200737. In this M.A. the applicant has sought direction of this Tribunal to the official respondents to produce the following documents:
(a) The records of the annual confidential records of the officers who were promoted, vide respondent's order dated 06.12.2006; and
(b) Proceedings of the meeting of the Selection Committee held on 21.08.2006.
Notice was issued to the official respondents, vide order of this Tribunal dated 01.03.2007, and on the final date of hearing, the official respondents produced the following documents:
(a) Confidential Report File of the applicant; and
(b) File relating to the meeting of the Selection Committee held on 10.08.2006, including its proceedings.
38. In our view, the production of the Confidential Report File of the applicant alone is relevant to adjudicate the relief sought by the applicant. No purpose would have been served by summoning the Confidential Report Files of all the private respondents. In any case, a summary of the gradings of the relevant ACRs of all the 10 eligible officers, who were considered by the Selection Committee (including those who were promoted/ appointed as CMD, vide orders dated 06.12.2006) is available in the file relating to the meeting of the Selection Committee held on 10.08.2006. Incidently, the date of the relevant meeting of the Selection Committee is 10.08.2006 and not 21.08.2006, as mentioned in the M.A. This M.A. stands disposed of accordingly.
MA. No. 583/200739. In this M.A. the applicant has sought direction to the official respondents to report compliance of the orders dated 10.01.2007 and 13.02.2007 passed by the Hon'ble High Court in W.P. (C) No. 210/2007. This would be dealt with and disposed of along with the O.A. MA. No. 617/2007
40. This M.A. has been filed by the official respondents to place on record certain documents relating to W.P. (C) No. 210/2007 filed by the applicant before the Hon'ble High Court of Delhi. Since the various orders of the Hon'ble High Court Delhi (particularly those dated 10.01.2007 and 13.02.2007) are already part of the record, and the applicant too has submitted some of her affidavits filed before the Hon'ble High Court in M.A. No. 380/2007, which has been ordered to be taken on record as aforementioned, there can be no objection to taking on record the pleadings of the two parties culminating in the orders of the Hon'ble High Court aforementioned. The M.A. is accordingly allowed.
O.A. No. 2612/200641. Upon a composite reading of the various contentions of the applicant, we fined that she would like this Tribunal to address a variety of issues in the context of the reliefs sought by her. Apart from the flaw of multiple reliefs underlying this approach, some of the issues, is our opinion, are beyond the scope of judicial review. We would, therefore, like to give primacy of place to the relief specifically sought by the applicant in the 0. A., which, in fact, is quite simple and direct. She would like a direction to the official respondents to promote her as CMD (HAG) ahead of private respondents Nos. 3 to 9. In this background, we would primarily like to address the following issues:
(i) Applicant's seniority vis-a-vis respondent Nos. 3 to 9;
(ii) The validity of the proceedings of the DPC.
42. From the pleadings, it is apparent that the main grievance of the applicant is that Shri Krishan Kumar who, according to the seniority list annexed by the applicant with her O.A. (Annexure-I), is junior to her, has been promoted as CMD (HAG) ahead of her. However, as pointed out by the learned Counsel for the official respondents, Anenxure-I is not an official documents issued by the respondents and, therefore, on the basis of seniority list in terms of promotion to SAG issued on 12.04.2002 (supra), Sh. Krishan Kumar was promoted to SAG on 28.07.2000 and is placed at serial No. 55 whereas the applicant was promoted to SAG on 20.10.2000 and has been placed at serial No. 62.
43. We are not convinced with the contention of the applicant that in all cases seniority has to be counted on the basis of entry of a person into service. A person substantively promoted earlier to a grade shall necessarily count her/his seniority in that grade ahead of those who were promoted later to that grade.
44. Coming to the meeting of DPC held on 10.08.2006 for promotion of certain SAG Officers of IRMS to the post of CMD (HAG), from the perusal of the records, we find that, as contended by the official respondents, names of 10 officers were considered by DPC for filling up 10 vacancies in order of seniority as per SAG seniority list dated 12.04.2002 (supra). The applicant made the cut for being considered for promotion, in spite of being ranked at No. 17 out of 20 persons in the zone of consideration, since 7 of her seniors were not considered, since their residual service was less than one year as on 01.07.2006. In the event, she was at S1. No. 10 out of the 10 officers who made the grade. Again, as mentioned by the official respondents, only 6 out of 10 persons were finally found fit for promotion to the post of CMD (HAG) on the basis of assessment of their performance. The applicant was one of the 4 persons, who were assessed as unfit by the Selection Committee. Obviously, none of the juniors of the applicant have been promoted to the post of CMD (HAG). Moreover, as far as the applicant is concerned, the assessment of her performance/ fitness for the years 2001-02 to 2005-06 by the DPC is based purely on the grading recorded in the ACRs for that period. In none of the years, she has been reportedly recorded as unfit in the ACRs. Thus, the primary reason for her being found unfit, on the whole, is that her overall grading has not been found to be VG+ as per the stringent criteria of selection for promotion to HAG prescribed in the Railway Board Circular dated 03.06.2002 (supra). In this context, we also hold that the prescription in Para 3.11, of the Brochure on Confidential Reports, regarding communication of remark 'Not Fit', if the officer has been graded as 'Good', is with reference to the entries made in the ACRs and has nothing to do with the proceedings of DPC. In passing, in the context of certain pleadings made by the applicant, we would also like to mention that all her ACRs referred to above have been countersigned by DG (RHS) before their submission to the Accepting Authority.
45. In view of the facts mentioned above, we do not find any deficiency in the assessment made by the DPC, in the context of the judgments cited by the learned Counsel for the applicant (Badrinath v. Government of Tamil Nadu and Ors. (supra); UPSC v. K. Rajaiah and Ors. (supra); and Mrs. Anil Katiyar v. Union of India and Ors. (supra)).
46. On the other hand, we are in agreement with the ratio of the judgments of the Hon'ble Supreme Court in the cases of Badrinath v. Government of Tamil Nadu and Ors. (supra); Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan etc. (supra) and Mrs. Anil Katiyar v. Union of India and Ors. (supra), wherein it has been held that the scope of judicial review with regard to the decision of the Selection Committee is very limited and Court cannot sit in judgment over the selections made by the Selection Committee unless the selection is assailed as vitiated by mala fides or being arbitrary.
47. As regards the contention of the applicant that if her ACRs were downgraded, this fact should have been communicated to her as per the ratio of the judgment of the Hon'ble Supreme Court in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. (supra), in spite of the averments of the learned Counsel for the applicant to the contrary, we find that the Hon'ble Supreme Court in the case of Union of India and Anr. v. Major Bahadur Singh (supra), has clearly held that the judgment of the Hon'ble Supreme Court in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. (supra) has no universal application. In any case, admittedly, the jury is still out on this subject.
48. With regard to the contentions of the applicant regarding the deficiencies in the ACR System and the impact of the frequent transfers on the writing of the ACRs, we would not like to get into a roving enquiry on such issues, which are primarily policy matters to be decided by the Government. In any case, pointing out defects in policies and prescriptions in the averments made in the context of a relief sought, is not, in our opinion, the same thing as specifically challenging those policies and prescriptions.
49. The applicant has contended that in the order of this Tribunal dated 29.01.2007, the official respondents were directed not to downgrade two posts of CMD to SAG till 20.02.2007, but the official respondents decided to operate 6 posts of CMD in SAG. In the first instance, the said order was issued on 06.12.2006, i.e. prior to the order of this Tribunal dated 29.01.2007 (supra). Moreover, as pointed out by the official respondents, they had mistakenly informed this Tribunal as well as the Hon'ble High Court of Delhi that two vacancies of CMD were likely to arise in the month of January, 2007. However, they have stated that subsequently they had sought to remove this misconception and also offered their apologies before the Hon'ble High Court of Delhi in this regard. Be that as it may, the fact remains that there are still three vacancies in the posts of CMD available as on date due to non-availability of suitable candidates.
50. As regards the contention of the learned Counsel for the applicant in the ratio of the judgment of the Hon'ble Supreme Court in the case of Sh. N.J. Pandya and Ors. v. Union of India and Ors. (supra) that promotions to the same grade is a contradiction in terms, in the first place, as explained by the official respondents, the posting of certain SAG Officers of IRMS as CMD, is a temporary arrangement, made to meet the exigencies of administration, due to non-availability of suitable officers for promotion. Moreover, the applicant, being already in SAG, is not particularly affected by this temporary arrangement.
51. The applicant has also contended that the official respondents are duty bound to implement the two orders of the Hon'ble High Court of Delhi dated 10.01.2007 and 13.02.2007, read together. Suffice it to say that we are sure that the official respondents would take necessary steps, if not done already, to implement the said orders of the Hon'ble High Court. We, therefore, do not have to give any further direction or verdict on the constitution of the Selection Committee. M.A. Nos. 380/2007 and 583/2007 stand disposed of accordingly.
52. Taking the totality of facts and circumstances of the case into consideration we find that the applicant has not been able to establish that she is senior to private respondent Nos. 3 to 9 and, therefore, should have been promoted ahead of them. We are also, therefore, not convinced that any purpose would be served by undertaking a roving exercise of comparing the ACRs of the applicant with those of the private respondents Nos. 3 to 9 to decide whether any injustice has been done to the applicant vis-a-vis private respondent Nos. 3 to 9. Circumambulating within the scope of judicial review of proceedings of Selection Committee, we also do not find any irregularity in the procedure adopted by the Selection Committee. As regards applicant's challenge to ACR System etc., suffice it to say that it is the same for the applicant as well as the private respondents and hence there is no hostile discrimination against her.
53. In the result, the O.A. is without merit and is, therefore, accordingly dismissed. Needless to mention, the interim order of this Tribunal dated 29.01.2007 also stands vacated. There will be no order as to costs.