Central Administrative Tribunal - Delhi
Rohit Kumar Parmar vs Union Of India on 30 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3410/2010 New Delhi this the 30th day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Rohit Kumar Parmar, S/o Late Shri Romesh Chander Parmar, Permanent r/o E-346, Greater Kailash II, New Delhi. Applicant (Through Shri K.K.Rai, Sr. Advocate with Shri R.N.Singh and Ms. Sangeeta Rai ) VERSUS 1. Union of India, Ministry of Finance, Department of Economic Affairs, IES Division, North Block, New Delhi-110001 (Through : The Secretary ) 2. Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110011 (Through : The Secretary ) 3. Ministry of Defence, South Block, New Delhi-110011 (Through : The Defence Secretary ) Respondents (By Advocate Ch. Shamsuddin Khan for Respondent No.1 and Smt. Jasmine Ahmed for Respondent No. 2) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
The Applicant, an officer of the 1984 batch of Indian Economic Service (IES), has been overlooked for promotion to Senior Administrative Grade (SAG), although officers junior to him have been promoted by order dated 05.06.2009 (Annex A-1), on the recommendation of the Departmental Promotion Committee (Annex A-3), which met on 02.03.2009. The DPC did not find the Applicant Fit for promotion because he did not meet the prescribed benchmark of Very Good grading in all the five Annual Confidential Reports (ACRs), from the year 2002-03 to 2007-08 (excluding 2004-05, when ACR could not be recorded). His grading in the ACR for part of the year 2003-04 and part of the year 2005-06 was Good. The Applicants representation against his not being promoted was sent to the competent authority by electronic-mail on 05.06.2009 and hard copy on 01.12.2009, which remained unheeded. The Respondents communicated to the Applicant the ACRs with below benchmark grading by a letter dated 04.05.2010. The Applicant made two separate representations against the below benchmark grading in the two ACRs on 16.05.2010 and 17.05.2010. These representations were rejected by the order dated 18.08.2010 by the Ministry of Defence, the third Respondent herein (Annex A-2). The Applicant is assailing the orders dated 05.06.2009 (Annex A-1) and 18.08.2010 (Annex A-2) and the minutes of the DPC dated 02.03.2009 as illegal, arbitrary and discriminatory and seeking these to be quashed to the extent these affect him and direction to the Respondents to promote him to SAG from the date the officers junior to him have been promoted.
2. The Indian Economic Service Rules, 1961 and amended Rules, 2008 (the Recruitment Rules) provide for promotion to the SAG from among the Junior Administrative Grade (JAG) Officers with combined regular service of eight years in JAG and its Non- Functional Selection Grade (NFSG). The authorized cadre strength of the IES is 501, out of which 52 posts are in the SAG. In view of the acute stagnation of the IES Officers at NFSG level, approval of the Cabinet was obtained for upgrading 48 posts of the JAG (NFSG) Officers of the 1981 to 1984 batches of the IES to SAG till such time as the promoted officers either retired or were covered within the sanctioned SAG posts in the IES, after which the posts would revert to the NFSG. The Cabinet had also directed that the same procedure as followed for normal promotion to SAG would be followed in this case also. By notification dated 10.09.2008, 48 posts of NFSG occupied by the officers of 1981 to 1984 batches were upgraded to SAG. As per the instructions of the Department of Personnel and Training (DOP&T) dated 18.02.2008 the prescribed benchmark for promotion to SAG and above was that grading in all the five ACRs to be considered should be Very Good. Thirty-four officers of 1981 to 1984 batches of IES, including the Applicant, were considered for promotion to the grade of SAG. He was found unfit for promotion by the DPC because he did not have five Very Good grading in his ACRs for the period under consideration. Meanwhile, on the recommendation of the Sixth Central Pay Commission (VI CPC), the DOP&T issued an OM dated 24.04.2009 providing that whenever an Indian Administrative Service Officer is posted at the Centre to a particular grade carrying specific grade pay in Pay Band 3 or Pay Band 4, Officers belonging to Organized Group A services that are senior by two years or more would be granted the same grade on non-functional basis from the date of posting of the IAS Officer in that grade at the Centre. The same conditions, as applicable to the normal promotion to SAG, including the benchmark, were applicable to promotion on non-functional basis. The Applicant became eligible for promotion to non-functional SAG under this scheme with effect from 26.10.2006. A meeting of the screening committee was held on 15.07.2009 for considering, IES Officers of 1984 batch for promotion on non-functional basis to SAG from 26.10.2006. The screening Committee adopted the benchmark of four Very Good grading out of five ACRs, as the vacancy was considered to be pre-2008, when the benchmark of five out of five Very Good grading was introduced. The ACRs of the Applicant for the period 2000-01 to 2004-05 were considered and he sailed through on the basis of four Very Good grading for this period.
3. It is in the above backdrop that the arguments have been addressed. It was pointed out by the learned senior counsel for the Applicant that the ACR for part of the year 2003-04, which contained below benchmark grading Good had been reviewed after an inordinate delay of more than two years by the reviewing authority. The Applicant had submitted his self-assessment to the reporting officer on 10.06.2004. The reporting officer did not record the date on which the ACR was recorded, although there is a specific column at the end to indicate the date and place of recording the ACRs. This was omitted deliberately, it was argued, because the ACR had been recorded after an inordinate delay. The reviewing officer had recorded his comments and grading on 20.02.2007, after a delay of two-and-a-half years. This was a very casual and irresponsible approach to the recoding of ACRs, as one could hardly expect the reporting and reviewing officers to remember the performance of the officer reported upon after a lapse of more than two years. The DOP&T had issued instructions from time to time about timely recording of the ACRs. The Office Memorandum number 21011/1/77-Estt.(A) dated 30.01.1978, issued by the Department of Personnel and Administrative Reforms has mandated time limit of one month for recording the ACRs. It reads thus:
2.1.3. The existing system of writing confidential reports has been reviewed and the following decisions have been taken.
The Annual Reports should be recorded within one month of the expiry of the report period and the delay in this regard on the part of the reporting officer should be adversely commented upon. If the officer to be reported upon delays submission of the self-appraisal, this should be adversely commented.
When the reporting officer retires or demits office, he may be allowed to give the report on his subordinates within a month of his retirement or demission of office. The DOP&T reiterated the need for timely completion of ACRs again in its Office Memorandum number 21011/02/98-Estt.(A) dated 20.04.1998. Fresh instructions were issued as recently as 16.02.2009 by the DOP&T for timely preparation and proper maintenance of ACRs. The OM has been reproduced below in toto:
Subject: Timely preparation and proper maintenance of ACRs.
The undersigned is directed to say that this Department has been emphasizing from time to time the need to complete the Annual Confidential Reports of all classes of employees in time for smooth consideration of cases pertaining to confirmation, promotion, deputation to ex-cadre posts, etc. A time schedule was prescribed for various stages in the matter of writing of Confidential Reports in this Departments O.M. No. 35014/4/83-Estt. (A) dated 23.9.1985. The writing of ACR is a public trust and responsibility. All Ministries/Departments are again requested to ensure that the time schedule for preparation of Confidential Reports and other instructions as laid down in this Departments O.M. dated 23.9.1985 are followed to ensure that ACRs are completed in time.
2. As cases continue to occur where confirmation, regular promotion, appointment to sensitive posts, etc., could not be considered in time because of non-availability of ACRs for the relevant period, the matter of timely completion of ACRs was further reviewed in this Department and it has been found necessary to prescribe a time limit after which the Reporting/Reviewing Officer shall forfeit his right to record the ACR. It has been decided that while the time-limits prescribed in the aforesaid O.M. dated 23.9.1985 should be adhered to as far as possible, in case the ACR is not initiated by the Reporting Officer for any reason beyond 30th June of the year in which the financial year ended, he shall forfeit his right to enter any remarks in the ACR of the officer to be reported upon and he shall submit all ACRs held by him for reporting to the Reviewing Officer on the next working day. Similarly, the Reviewing Officer shall also forfeit his right to enter any remarks in the ACR beyond 31st August of the year in which the financial year ended. The Section entrusted with maintaining the ACRs shall, while forwarding the ACRs for self-appraisal with copy to the Reporting/Reviewing Officers, also annex the schedule of dates as enclosed herewith. It shall also bring to the notice of the Secretary concerned in the case of Ministry/Department and the Head of the organization in the case of attached and subordinate offices, the names of those Group A and B Reporting Officers and Group A Reviewing Officers in the month of October after receiving the completed CRs who have failed to initiate/review the ACRs even by 30th June or 31st August as the case may be. The Secretary in the Department/Head of the organization in the case of attached/subordinate offices may direct to call for the explanation of the concerned officers for not having performed the public duty of writing the ACRs within the due date and in the absence of proper justification direct that a written warning for delay in completing the ACR be placed in the ACR folder of the defaulting officer concerned.
3. In case the remarks of the Reporting officer or Reviewing Officer as the case may be have not been entered in the ACR due to the concerned officer forfeiting his right to make any entry as per the provision in para 2 above, a certificate to this effect shall be added in his ACR for the relevant period. In case both the Reporting officer and Reviewing officer had forfeited their rights to enter any remarks, the CR format with the self appraisal given by the officer to be reported upon will be placed in his ACR dossier.
4. All the Ministries /Departments are requested to kindly bring to the notice of all concerned the above instructions for future preparation and maintenance of ACRs. These instructions shall be applicable for the ACRs for the period 2008-09 onwards. In case any CR for the past period is pending completion, the concerned Head of the Organisation in the case of attached/subordinate offices and the Joint Secretary concerned in the Ministries/Departments may take appropriate measures to ensure that the CR dossier is complete within the next 6 months either with the relevant CR or the required No Report Certificate for valid reasons. Although the aforesaid OM was issued in February, 2009, yet it demonstrated how much importance had been paid to timely completion of ACRs by the DOP&T, contended the learned senior counsel. The ACR for the year 2005-06 was also reported upon in February 2007, after a delay of one year and reviewed on 27.02.2008, after two years. The Applicant had specifically pointed to this delay in great detail by his representation dated 16.05.2010. The Applicant pointed out that:
This is an instance of undue delay in Reporting of an ACR, absence of reminders to expedite the same, absence of record on forwarding of the same from the Reporting Officer, without the mandatory date and place on which the Reporting Officer has signed after completion of the Report suggests a need for a review. It has also been urged that the competent authoritys consideration of two representations of the Applicant, one each for the ACRs of two years which contain below benchmark grading, each running into fifteen pages, has also been casual and flippant. The two representations have been rejected by a single, one short paragraph, non-speaking order dated 18.08.2010. There has been no discussion whatsoever about the issues raised by the Applicant in his representations even in the office note of the Ministry of Defence, which was obtained by the Applicant under the Right to Information Act, 2005. Relevant portion of the note dated 09.07.2010 has been reproduced below:
5. The ACR for the period 2003-04 (F/Y) in respect of Shri R.K.Parmar was reported upon by Shri Gautam Mukhopadhaya, formerly JS (PIC), MoD and the report was reviewed by Shri Ranjit Issar, former AS who has since retired. The ACR pertaining to the assessment year 2005-06 (F/X) was reported upon by Shri Gautam Chatterjee, formerly JS (O/N), MoD and again reviewed by Shri Ranjit Issar, former AS.
6. The representations of Shri R.K.Parmar, formerly Director, MoD, against the remarks/final grading in the ACRs pertaining to the assessment years 2003-04 and 2005-06, were forwarded to the respective Reporting Officers for comments. However, the comments of the Reviewing Authority could not called for as he has retired.
7. The comments of Shri Gautam Mukhopadhaya, Reporting Officer for the assessment year 2003-04 have since been received and the same could be perused at Encl. 12 A. He has stated that he stands by his observations and the overall assessment of Good as recorded, as he does not believe that the officer merits Very Good or Outstanding on the basis of his performance during the period. Since the Reviewing Authority has retired, his comments were not called for.
8. The comments of Shri Gautam Chatterjee, Reporting Officer for the assessment year 2005-06 have also been received and the same could be perused at Encl. 11 A. He has stated that the officer reported upon has been correctly assessed on the basis of performance given by him in the period from April, 2005 to January, 2006. Since the Reviewing Authority has retired, his comments were not called for.
9. It may be seen that the ACRs of the officer were reported by Joint Secretary level officers and reviewed by an Additional Secretary. The competent authority to take a decision in the matter in the instant case would be an authority higher than the Reviewing Authority viz. the Defence Secretary.
10. It is reiterated that as per ibid instructions, representations against the remarks or for upgradation of the final grading given in the ACR should be examined by the competent authority, in consultation, if necessary, with the Reporting and /or Reviewing officer if they are still in service and thereafter decide the matter objectively in a quasi-judicial manner based on the material placed before him. The Competent authority after due consideration may reject the representation or may accept and modify the APAR accordingly. In case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority.
11. In this backdrop, the matter may please be placed before Defence Secretary for a decision regarding rejection/acceptance of representations on ACRs pertaining to the assessment years 2005-2006 and 2003-2004 in respect of Shri R.K. Parmar, formerly Director, MoD. The Defence Secretary has rejected the representations by a terse note, quoted below:
I find no reason to intervene in the assessment made by the reporting and reviewing authority.
Representation rejected. The learned senior counsel would contend that the note clearly revealed that the Defence Secretary had scarcely applied his mind to the issues raised in his representation by the Applicant. There was hardly any input provided by the office to the Defence Secretary for proper appreciation of the representation. It has further been urged that the reviewing officer had already retired when the representations of the Applicant were considered by the Respondents. The learned senior counsel would contend that it is now an accepted principle that in case the reporting and/or reviewing officers have retired from service and their comments on the representation are not available, such ACRs should be ignored by the DPC. In OA number 34524/2009, V.K.Singhal V. Commissioner of Income Tax this Tribunal had held that such ACRs should not be taken into account and instead ACRs of the earlier period should be considered. Later in OA number 1142/2009, Ranjana Kale V. Chief Economic Adviser and another, in a similar case, the Tribunal gave directions for communicating similar ACR, in which reviewing officer had retired, to Applicant therein to obtain her comments. She approached the Honourable Delhi High Court in Writ Petition (C) number 13488/2009 against the order of the Tribunal. It was held thus by the High Court:
1. The short point involved in this petition is as to whether the Tribunal was justified in directing communication of ACRs for the year 2004-05 and 2005-06 where the ACRs given to the petitioner were below benchmark and were causing obstacle in his further promotion despite the fact that in his earlier 4 years he has outstanding ACRs and in subsequent years also he has outstanding ACRs.
2. The petitioner submits that in view of a judgment delivered by the Principal Bench of Central Administrative Tribunal in V.K.Singhal Vs. Commissioner of Income Tax i.e. OA No. 3524/2009, the procedure to be followed was to just ignore the two ACRs for the two years which were below the benchmark and the petitioners case for promotion should have been considered on the basis of 4 ACRs prior to 2004-05 and by taking into consideration the subsequent ACRs instead of directing him to make a representation and then wait for re-consideration that also by persons who are no more in service inasmuch as at the time when the matter was taken up before the Tribunal, the Review Officer has retired and subsequent thereto even the initiating officer is no more in service.
3. The case of the petitioner is fully covered by the judgment delivered in the case of V.K.Singhal (supra) as also in the case of Abhijit Ghosh Dastidar Vs. UOI and Ors. delivered by the Honble Supreme Court in Civil Appeal No. 6227/2008.
4. In these circumstances, we find it appropriate to modify the order of the Tribunal dated 10.09.2009 to the extent that instead of asking the petitioner to submit a representation and then pass orders about his ACRs for the year 2004-05 and 2005-06, the respondents will consider the issue of promotion of petitioner by convening a review DPC by taking into consideration the ACRs for the year 2000-01, 2001-02, 2002-03, 2003-04 and 2006-07 by ignoring ACRs of the two years namely 2004-05 and 2005-06.
5. The needful shall be done by the respondents within 12 weeks from today.
6. With these observations, the writ petition is disposed of. The SLP against the same was dismissed by the Honourable Supreme Court. On the same analogy these ACRs had to be ignored, contended the learned senior counsel. It was further submitted that the ACRs, in which adverse remarks were given in the form of below benchmark grading, were considered by the DPC on 02.03.2009, when these had not even been communicated to the Applicant. It is again a well established principle that the DPC has to ignore the un-communicated adverse remarks. The Honourable Supreme Court had laid down the law in Dev Dutt Vs. Union of India, (2008) 8 SCC 725 that below benchmark grading would be considered to be an adverse remark. The DPC ought not, therefore, have considered the adverse ACRs of 2003-04 and 2005-06 because these had not been communicated to the Applicant. In Abhijit Ghosh Dastidar V. Union of India and Others, (2009) 16 SCC 146, the Honourable Supreme Court held that un-communicated adverse remarks should be ignored by the DPC. Paragraph 8 of the judgment has been extracted below:
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 abovereferred 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.
4. The Respondents would, however, oppose the cause of the Applicant by stating that the OA was devoid of any substance or merit. It has been pleaded in the counter affidavit that before the year 2009, it was not necessary for the competent authority to communicate below benchmark remarks to the officer reported upon as these were not considered adverse remarks. In view of this it was perfectly in order for the DPC to consider the ACRs containing below benchmark grading. DOP&T issued instructions for communicating below benchmark grading only on 14.05.2009. It is further pleaded that Abhijit Ghosh Dastidar (supra) would not apply in the facts of this case. No other argument has been pressed on behalf of the Respondents.
5. Having considered the rival contentions, we are of the considered opinion that the process of recording of ACRs, rejection of representations against below benchmark grading and their consideration by the DPC suffer from several infirmities. The grading of the Applicant in the ACRs of the years 1999-2000 to 2008-09, is as follows:-
Year Grading 1999-2000 Very Good 2000-01 Outstanding 2001-02 Very Good 01.04.2003-04.07.2002 Very Good 07.2003 -03.2004 Good 2004-05 Not recorded 2005-06 Good 2006-07 Very Good 2008-09 Very Good The record of the Applicant has been Very Good in six years out of the eight years for which ACRs have been recorded between 1999-2000 to 2008-09. These ACRs of the two years have been recorded after considerable delay, as discussed above, contrary to the repeated instructions, which provide a time limit of one month. The reason for such time limit is not far to seek. The officers at the level
of Joint Secretary and Additional Secretary are required to act as reporting and reviewing authorities in cases of large number of officers. It is reasonable to expect that with highly taxing load of work and need to record on a large number of ACRs, the impressions about the work of an individual officer would get blurred with passage of time and eventually get obliterated. Reporting and reviewing after a lapse of more than two years can result in unjust assessment of an officer. Further, the report has been communicated almost five years after it was recorded. The reviewing officer has retired on superannuation. This should have been sufficient reason for ignoring the ACR. However, the competent authority proceeds to reject the representation only on the comments of the reporting officer, which only reiterate that he would stick by the grading given by him to the officer reported upon. The reporting officer has not answered the points raised in the representation of the Applicant. The representation has not been examined at all by the officials who submitted the relevant file to the Defence Secretary, who perfunctorily records that he saw no reason to intervene in the assessment made by the reporting and reviewing authority, apparently without knowing anything about the Applicants representation. The Applicant has been treated unjustly. The rejection of his representation has been without proper application of mind. Moreover, in the light of the judgment of the Honourable High Court in Ranjana Kale (supra), upheld by the Honourable Supreme Court and the judgment in Abhijit Ghosh Dastidar (supra), the DPC should not have considered the ACRs of 2003-04 and 2005-06 and instead should have considered ACRs of earlier two years.
6. On the basis of the above discussion, the OA succeeds. The impugned orders are quashed to the extent they affect the Applicant. The Respondents are directed to convene a meeting of review DPC to consider the Applicant for promotion to SAG by ignoring his ACRs for the period 2003-04 and 2005-06 and instead consider his ACRs for two earlier years. If the Applicant is found fit for promotion by the DPC, he would be promoted from the date his immediate junior was promoted. These directions would be complied with within three months from the date of receipt of a copy of this order. No costs.
( L.K.Joshi ) ( V. K. Bali ) Vice Chairman (A) Chairman sk