Central Administrative Tribunal - Delhi
S.R. Verma vs Kendriya Vidyalaya Sangathan on 11 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1240/2012 Reserved On:05.12.2013 Pronounced on:11.12.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) S.R. Verma Vice Principal, Kendriya Vidyalaya No.1, Alwar (Rajasthan). .Applicant By Advocate: Shri M.K. Bhardwaj. Versus Kendriya Vidyalaya Sangathan Through: Additional Commissioner (Admin.) 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. ..Respondents By Advocate: Shri U.N. Singh. ORDER
Honble Mr. G. George Paracken, Member (J) The Applicants grievance is against the following decision of the Kendriya Vidyalaya Sangathan (KVS for short), Headquarters, New Delhi conveyed to him by the Annexure-A letter dated 24.03.2011 of the Assistant Commissioner, KVS, Regional Office, Jaipur:-
Name of Shri S.R. Verma for promotion from the post of Vice Principal to the post of Principal along with others was considered by the DPC for the year 2007-08 and 2008-09 but the DPC had not found him FIT for promotion as he did not meet the prescribed bench mark. His representation regarding reconsideration of his case for promotion to the post of Principal has been considered sympathetically but could not be acceded to.
2. The brief facts of the case are that the Applicant is working as Vice Principal with the Respondents. They have considered him for promotion to the post of Principal. The Departmental Promotion Committee (DPC for short) met on 12.01.2007 for the year 2007-08, on 17.03.2008 for the year 2008-09, on 15.04.2009 for the year 2009-10, on 04.08.2010 for the year 2010-11, on 14.03.2011 for the year 2011-12 and on 13.04.2012 for the year 2012-13. None of those DPCs recommended the Applicant for promotion as he did not meet the prescribed benchmark.
3. The Applicant has, therefore, made his representation dated 09.02.2011 stating that he belongs to SC category and he was promoted to the present post of Vice Principal with effect from 23.06.2004. He has further submitted that in terms of the instructions issued by the DOP&T vide OM dated 23.12.2010, OM No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000 while considering the promotion of SC/ST categories of candidates to the post of Principal, lower standard of grading, i.e., Average instead of Good should be considered as the benchmark. According to him, he had four Good and one Average grading for the ACR preceding 5 years, before the DPC met on 12.01.2007. Again for the year 2008, he had four Good plus one Average grading that is why his name has not been cleared for promotion in SC category though benchmark prescribed for general category is Good and the benchmark for the SC/ST category was Average. He has, therefore, submitted that he was deprived of his legitimate right for promotion under the reserved category. He has also submitted that even though in terms of judgment of Supreme Court in Dev Dutt Vs. Union of India and Others AIR 2008 SC 2513 it has been held that every entry needs to be communicated within a reasonable period so that the Government servant can make a representation for its upgradation. The Respondent-KVS have not followed those directions. He has also pointed out that the Larger Bench of this Tribunal in OA No.270/1999 Dr. R. Bhardwaj Vs. U.O.I. & Others decided on 09.07.2003 held that a grading below the benchmark amounts to adverse remarks and those adverse remarks, not communicated amounts to denial of promotion. He has also referred to an order of the Calcutta Bench of this Tribunal in OA No.328/2001 Gourisankar Rao Vs. U.O.I. and Others wherein it was held that the aforesaid decision is equally applicable to all similarly situated persons.
4. The learned counsel for the Applicant has also relied upon the judgment of the Honble High Court of Delhi in W.P. (C) 5042/2002 - U.O.I & Another Vs. V.S. Arora and & Others etc. and connected cases decided on 31.05.2012 wherein it has been held that the below benchmark ACRs should not be considered by the DPC. On the other hand, the DPC should follow the procedure prescribed in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices. The relevant part of the said order reads as under:-
24.Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC shouldconsider the CRs of the years preceding the period in question and if in any case even these are not vailable, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx He has also relied upon the operative part of the said judgment which reads as under:-
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.
26. In view of the foregoing discussion, the writ petitions are dismissed. There shall be no order as to costs. The impugned orders of the Tribunal stand modified to the extent indicated above. The compliance time is extended by a further period of 3 months from today.
5. The Applicant has also relied upon an order of the co-ordinate Bench of this Tribunal in OA No. 1473/2012 Shri Iqbal Beg Vs U.O.I. & Others decided on 14.02.2013 wherein this Tribunal had disposed of the said OA following the aforesaid judgment of the High Court in V.S. Aroras case (Supra). The operative part of the said order reads as under:-
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.
6. The Respondents in their reply have submitted that the post of Principal, being a Group A post, there is no reservation in promotion to that post. As the contention of the Applicant is that his grading with below benchmark should be considered is without any substance. They have also stated that the case law relied upon by the Applicant is not relevant and applicable in his case because, according to them, only the adverse remarks in the ACRs should be communicated to the Applicant. There is no such requirement of communicating the below benchmark grading.
7. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri U.N. Singh. It is seen that after the decision of the Division Bench of the High Court in V.S. Aroras case (supra), another Division Bench of the High Court has considered the same issue in the case of Union of India and Others Vs. Swati S. Patil in W.P. ( C) No.4018/2011 decided on 01.04.2013 wherein the Honble Division Bench has held as follows:-
14. Our attention was drawn to an opinion dated May 31, 2012 in a batch of writ petitions, lead matter being W.P.(C) No.5042/2002 UOI & Anr. Vs. V.S.Arora & Ors. wherein a Division Bench of this Court has opined to the contrary i.e. the view taken by a Division Bench of this Court Krishna Mohan Dixits case.
15. The said decision by the Division Bench traces the chronology of decisions, which actually are orders, passed by various benches of the Supreme Court after the decision in Dev Dutts case and Abhijit Ghosh Dastidars case. With reference to the decision in Abhijit Ghosh Dastidars case the Division Bench opined, in para 15 of its opinion as under:-
15.. The Supreme Court did two things. First of all, it affirmed the view taken by Dev Dutt (supra) to the extent that non-communication of an ACR would be arbitrary and would be violative of Article 14 of the Constitution. Secondly, it concluded that such entries which are not communicated should not be taken into consideration for being considered for promotion to the next higher grade. Thus, while Dev Dutt (supra) has been affirmed by the Supreme Court in Abhijit Ghosh Dastidar (supra) on the first aspect, as regards what has to be done with a non-communicated below benchmark ACR, the Supreme Court in Abhijit Ghosh Dastidar (supra) took the view that such an ACR ought not to be considered.
16. We note that the Division Bench which has authored the opinion in V.S.Aroras case has overlooked para 37 of the opinion of the Supreme Court in Dev Dutts case. The Division Bench has overlooked that there is not conscious reasoning in Abhijit Ghosh Dastidars case as to what should happen when the Reporting and the Reviewing as also the Accepting Authority have retired. In fact, the decision in Abhijit Ghosh Dastidars case does not even record the fact that the Reporting, Reviewing or Accepting Authority had retired. Noting, in the brief order, which forms the decision in Abhijit Ghosh Dastidars case, that as per Dev Dutts case below benchmark ACR gradings were required to be communicated, noting further that Abhijit Ghosh Dastidar had superannuated from service, the Supreme Court directed his notional promotion from the date the person junior to him was promoted. Thus, to read into the decision of the Supreme Court in Abhijit Ghosh Dastidars case a reasoning that if the Reviewing and/or Accepting Officers have retired, the below benchmark ACR gradings have to be ignored, would be to read something into the decision which does not exist. And said imaginary reasoning would then result in an apparent head on conflict of the law declared in para 37 of the opinion in Dev Dutts case (supra) and the decision in Abhijit Ghosh Dastidars case (supra).
17. In ordinary course we would have settled the question of law and referred the matter to a larger Bench, for we note a presumptive reasoning read by the Division Bench while reflecting upon the law declared by the Supreme Court in Abhijit Ghosh Dastidars case and on said presumptive reasoning, read an opinion expressed contrary to the view expressed by a Division Bench in Krishna Mohan Dixits case as to the reading of the two decisions in Dev Dutts case (supra) and Abhijit Ghosh Dastidars case (supra), but we do not do so for the reason as regards the facts of the instant case we find that the law applicable is as declared by the Supreme Court in Kashi Nath Khers case (supra), which decision deals with the situation as to what should be done with incomplete ACR gradings i.e. where the ACR proforma has been filled up only by the Initiating/Recording Officer and not countersigned by the Reviewing and/or the Accepting Officer.
A reading of the aforesaid order makes the position clear. It says that the judgment of the Apex Court in Dev Dutts case (supra) has to be followed in all cases. In other words, the ACRs having below benchmark gradings have to be communicated to the Government servant within a reasonable time and Government employee should have an opportunity to make a representation to the higher authority who shall consider them and dispose it of by a reasoned order. Para 37 of the said judgment is relevant in this regard and it is extracted below:-
37. We further hold that when the entry is communicated to him the public ser-vant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair man-ner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the like-lihood is that the representation will be summarily rejected without adequate con-sideration as it would be an appeal from Caesar to Caesar. All this would be condu-cive to fairness and transparency in public administration, and would result in fair-ness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
8. In the above facts and circumstances, the contention of the Respondents that only adverse remarks containing the ACRs were required to be communicated to the Applicant is wrong. In view of the judgment of the Apex Court in Dev Dutts case (Supra) and the various other judgments which have been followed the law laid down therein, the Respondents should have communicated all the below benchmark ACRs of the Applicant to him.
9. In the above facts and circumstances of the case, we direct the Respondents to furnish the copies of all the ACRs of the Applicant which have been considered by the DPCs from time to time and give him an opportunity to make representations against them, if he so desires within a period of 2 months from the date of receipt of a copy of this order. On receipt of such representations from the Applicant, if any, the higher authority shall consider them and decide whether the gradings given to him was appropriate or not. In case any of the ACRs are upgraded on the basis of the aforesaid representations, the Respondents shall convene a review DPC and place it before the same for reconsideration of the case of the Applicant for promotion. With the above directions, this OA is disposed of.
10. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh