Central Administrative Tribunal - Allahabad
Rajesh Tiwari vs General Manager N C Rly on 30 August, 2017
(Reserved)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Original Application No. 330/01462/2016
ALLAHABAD this the 30th day of August, 2017
HON'BLE MR. JUSTICE DINESH GUPTA, MEMBER (J)
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
Rajesh Tiwari aged about 56 years son of Sri Shaligram
resident of Quarter No. 572, Railway Officers‟ Colony, Rail
Gaon, Subedarganj, Allahabad-211011 (U.P.) presently posted
as Senior Deputy General Manager, North Central Railway,
Headquarters Office, Allahabad.
Applicant
By Advocate: Sri Shyamal Narain
Versus
1. Union of India through General Manager, North Central
Railway, Allahabad.
2. The Chairman, Railway Board, Rail Bhawan, New Delhi.
3. The Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training), Govt.
of India, New Delhi through the Secretary, DOP&T.
4. The Appointments Committee of the Cabinet, Govt. of
India, New Delhi.
5. Sri Sudheer Kumar HAD/IRSSE, presently posted as
Adviser, Electrical (RS), Railway Board, Rail Board, New
Delhi.
6. O.P. Kesari aged about 57 years son of Sri Gopal Prasad
resident of RDSO, Colony Manak Nagar Lucknow
presently posted as Executive Director , STDS Electrical,
RDSO, Lucknow.
2 O.A No. 1462/16
7. A.K. Singhal, Bungalow No. 24, DLW Officers Colony,
Varanasi-221004, presently posted as Chief Electrical
Engineer, DLW, Varanasi.
Respondents
By Advocate : Sri Vivek Rai (Official respondents)
Sri K.P. Singh (Respondent No. 5).
ORDER
DELIVERED BY:-
HON'BLE MR. GOKUL CHANDRA PATI, (MEMBER-A) The applicant has filed this O.A. u/s 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
"a) Quash the impugned order dated 24.10.2016 (Annexure A-1 to compilation I) issued by the respondents, rejecting the applicant‟s representation dated 9.9.2016 preferred by him against the arbitrary and illegal denial of promotion to him, and his supersession by his junior, in the matter of promotion to the Higher Administrative Grade (HAG in short) of the Indian Railway Service of Electrical Engineers (IRSEE in short).
b) Issue a positive and time bound order or direction to the respondents , commanding them to convene a Review DPC/Review meeting of Appointments Committee of the Cabinet, Govt. of India, New Delhi for considering the case of the applicant for promotion to the Higher Administrative Grade of the Indian Railway Service of Electrical Engineers, in accordance with law and if found fit to promote him to the said Grade w.e.f. the date his next junior in service ,Sri Sudheer Kumar/ respondent No. 5 was 3 O.A No. 1462/16 so promoted with all consequential benefits, including assignment of proper and due seniority in the said grade and payment of arrears of salary and all other emoluments admissible to him by virtue of promotion to the said grade from the due date, along with interest, at such rates as might be considered just and proper in the facts of the case.
c) Issue such other suitable orders or direction as might be found just and proper in the facts and circumstances of the present case.
d) Award the costs of this Original Application in favour of the applicant, throughout.
2. The brief facts emerging from the O.A. are that applicant had entered in the Railway Service as a member of Indian Railway Service of Electrical Engineer on the post of Assistant Electrical Engineer in July, 1983 through the Indian Railway Service Examination, 1981.
2.1 The applicant was promoted to the Senior Scale in January,1987, Junior Administrative Grade in 1990, Selection Grade in May 1997 and Senior Administrative Grade in February, 2004. The applicant was also granted promotion to the Non-Functional Higher Grade of service w.e.f.10.7.2014 vide an order dated 15.12.2014 (Annexure A-2 to compilation II).
4 O.A No. 1462/162.2 The applicant‟s track record in service has been totally unblemished and no disciplinary action has been initiated against him.
2.3 It is also mentioned that ACR grading awarded to the applicant have always been of a high order and in his last five ACRs for the years 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15 he has been graded once as „Very Good‟ and four times "Outstanding‟.
2.4 It is submitted that the eligibility and selection criteria for promotion to the regular HAG are the same as that for promotion to the HAG (Non-functional) which the applicant had already been granted vide order dated 15.12.2014. In this regard, applicant has also annexed copy of Railway Board order dated 15th December, 2015 (Annexure No.A-6) giving out the existing and revised benchmarks for promotion to administrative grades and for non-functional up-gradation. 2.5 Applicant was hopefully awaiting his next promotion to the HAG but the respondents in the end of August, 2016 proceeded to issue an order of promotion whereby one Sri Sudheer Kumar (Respondent No. 5) junior to applicant in the seniority list was promoted and posted in the HAG while the case of the applicant was not considered. Promotion order of Sudheer Kumar dated 29.8.2016 is annexed as Annexure No.A- 7 to compilation No. II. 5 O.A No. 1462/16 2.6 Seniority list of PHOD/Heads of Department dated 4th April 2005 annexed as Annexure No. A-8 to Compilation No. II, shows that applicant‟s name appears above the names of Sri Sudheer Kumar, Sri Naimul Had, Sri O.P. Kesari, Sri D.C. Pattanayak and Sri A.K. Singhal, all of whom have been recommended by the DPC for promotion to the HAG superseding the applicant. A reading of the list of SAG/IRSEE promotees to the HAG on non-functional basis as contained in order of promotion dated 15.12.2014 (Annexure No.A-2) in which the applicant‟s name appears at Sl. No. 6 whereas name of Sri Sudheer Kumar, Sri Naimul Haq, Sri O.P.Kesari , Sri D.C. Pattanayak and Sri A.K.Singhal appear at Sl. No. 8,11,12,13 and 16 respectively.
2.7 Various Railway Board orders/circular and directives governing the subject of promotion to administrative grades in Railway Services dated 3.6.2002, 23.9.2002, 11.6.2010, 8.12.2015 and 15.12.2015 are annexed as Annexure No. A-9, A- 10, A-11, A-12 and A-13 to compilation No. II respectively. The latest Railway Board order dated 15.12.2015 on the subject of Bench marks for promotion to Administrative Grades in Railway Services revised the benchmark for promotion to both the HAG and non-functional upgradation HAG has been fixed as „Very Good plus" meaning two outstanding and three very Good grading in the last five APARs.
6 O.A No. 1462/162.8 Due to denial of promotion of HAG to him by the DPC and undeserved supersession by his next junior, the applicant moved a representation dated 9.9.2016 through proper channel before the Secretary, Railway board which was duly forwarded by the office of General Manager, North Central Railway , Allahabad vide letter dated 15.9.2016. Copy of representation dated 9.9.2016 along with forwarding letter dated 15.9.2016 are annexed as Annexure No. A-14 to compilation No. II. Applicant also moved an application dated 6.10.2016 under RTI and received reply on 4.11.2016 (Annexure A-15 to compilation No. II) furnishing him relevant portion of DPC proceedings which he had asked for.
2.9 On careful reading of the DPC deliberations, qua the applicant‟s candidature for promotion to HAG, as supplied to the applicant under RTI , it would be clear that the applicant was declared „unfit‟ for promotion by the DPC upon a wholly distorted, skewed and misconceived understanding and interpretation of the extent Railway Board orders on the subject. DPC have completely ignored the fact that the applicant had been given one „Very Good‟ and four „Outstanding‟ grading in last five year APARs under consideration, but DPC has chosen to selectively focus on only one APAR relating to the year 2010-11 part II wherein he was originally graded as „Good‟ by the reporting and Reviewing 7 O.A No. 1462/16 Officer but had ultimately been given the final grading of „Very Good‟ by the Accepting authority. DPC decided to downgrade the APAR for 2010-11 to „Good‟. The applicant‟s representation dated 9.9.2016 has also been rejected by means of a cryptic, unreasoned and non-speaking order dated 24.10.2016 (Annexure A-1) which is challenged in the present O.A.
3. Sri Kaushlesh Pratap Singh, Advocate filed impleadment application No. 330/00572/2017 for impleading Sri O.P. Kesari and Sri A.K. Singhal as respondents No. 6 and 7 which was allowed by this Tribunal‟s order on 10.4.2017.
4. Vide order dated 15.12.2016, by means of interim order, this Tribunal directed the respondents not to promote the officers junior to the applicant in service till the next date of hearing.
5. Notices were issued to the respondents who in turn filed the counter reply. Respondents No.1 to 4 through their Counter reply have stated that applicant was considered for empanelment to Higher Administrative Grade in HAS/IRSEE panel for 2016-17 approved by the ACC on 16.8.2016. However, selection Committee did not recommend his empanelment in HAG which was approved by ACC also. While 8 O.A No. 1462/16 considering the applicant, the DPC made the following assessment in regard to the applicant:-
"Selection Committee has noted that Sri Rajesh Tiwari (Sl No. 20 of the statement of Annexure IX) has been assessed as „Good‟ in his 2010-11 (part II) APAR by the Reporting and Reviewing Authorities and all the attributes (except for attitude towards R&D) have been graded as „Good‟ in the APAR. Selection Committee noted that the then GM/NCR as the Reviewing Authority has recorded that although "output of the officer has fallen short of the expectation" in the APAR. Selection Committee noted that although the Accepting Authority upgraded the grading to „Very Good‟, none of the attributes against Management Qualities was upgraded by the said authority. Moreover, Selection Committee also noted that Sri Tiwari has been graded as „Good‟ in a number of APARs in his career. Therefore, Selection Committee decided to treat the overall grading of the APAR for the entire period of 2010-11 as „Good‟ only for the purpose of its own assessment. Taking this into account, Selection Committee found that Sri Rajesh Tiwari does not meet the performance benchmark of „Very Good‟ and accordingly, has not recommended his empanelment in HA Grade."9 O.A No. 1462/16
5.1 It is submitted that applicant was duly considered for promotion to HAG. However, he was not found fit for the same on the basis of his performance whereas the officers including his juniors were empanelled in HAG as they had been found fit for the same on the basis of their performance. Thus, the applicant does not have any claim for promotion to HAG for the panel year 2016-17.
5.2 It is further submitted that applicant was granted Non- functional HAG in 2014 by considering the APAR for the years 2008-09 to 2012-13 by the DPC which consisted of the functional Member of Railway Board, Member Staff and Chairman, Railway Board. He was considered for regular HAG in 2016 by considering the APAR for the years 2010-11 to 2014-15 by the DPC which consisted of one Member of Railway Board, Secretary, DOP&T and Chairman, Railway Board and their recommendations were approved by the Government at the highest level (ACC). Therefore, no comparison can be drawn between consideration for grant of non-functional HAG Grade in 2014 and regular HAG in 2016 in the basis of different set of APARs. Learned counsel for respondents No. 1 to 4 in the counter reply has also placed reliance on the following case laws:-
i) R.S. Dass Vs. UOI and others 1986 (Suppl )SCC 617/
ii) UPSC Vs. H.L. Dev and others AIR 1988 SC 1069 10 O.A No. 1462/16
iii) Dalpat Abasaheb Solanke Vs. B.S. Mahajan AIR 1990 SC 434
iv) Nutan Arvind Vs. UOI (1996) 2 Supreme Court Cases 488
v) Anil Katiyar Vs. UOI 1997 (1) SLR 153
vi) Durga Devi Vs. State of Himachal Pradesh (1997) 4 SCC 575
vii) UPSC Vs. L.P. Tiwari 2006 (12) Scale 278
viii) Union of India Vs. S.K. Goel (Appeal (Civil) No. 689 of 2007.
6. Learned counsel for respondents No. 6 and 7 filed Short Counter Reply through which he has stated that as per instructions /guidelines issued on DPC (promotions) by UPSC, Clause 15 thereof provides for the circumstances in which Review DPC can take place. It provides that Review DPC can only take place if all material facts were not taken into consideration or if the material facts were not placed before the DPC. The situation in which a Review DPC can be held includes, among others, non-reporting of vacancies due to error, eligible persons were not considered, where some procedural irregularities were omitted, where adverse remarks in the APARs were toned down or expunged after the DPC was held. However, the case of applicant is not covered in any of the conditions laid down in the instructions/Guidelines issued on DPC (Promotions) issued by UPSC. Hence the applicant is not entitled for any reconsideration by the Select Committee. 11 O.A No. 1462/16 Learned counsel for respondents No. 6 and 7 in their short C.A. also placed reliance on the following case laws:-
i) Dalpat Abhasaheb Solanke Vs. B.S. Mahajan AIR 1990 SC 434;
ii) Durga Devi Vs. State of H.P. 1997 (2) SLR 797.
7. Learned counsel for respondents No. 6 and 7 also filed Counter reply through which he has relied upon on the following case laws:-
i) Union of India and others Vs. S.K. Goel ( (SLP No. 2410/2007) decided on12.2.2007
ii) K.A. Nagmani Vs. Indian Airlines 2009 (5) SCC
515.
8. Written submission is also filed by respondents Nos. 1 to 4 through which he has reiterated the facts as stated in the Counter Reply.
9. Rejoinder Reply has not been filed by the counsel for applicant.
10. Heard the learned counsel for applicant Sri Shyamal Narain and learned counsel for official respondents Sri Vivek Rai and Sri K.P. Singh learned counsel for private respondents and perused the pleadings available on record. 12 O.A No. 1462/16
11. Learned counsel for the applicant argued that while courts should not interfere with the findings of Selection Committee unless the prescribed procedure is vitiated, in this case the Selection Committee / DPC wrongly downgraded the APAR grading of the applicant for the year 2010-11 from „Very Good‟ to „Good‟ which is not permissible as per the guidelines of the Railway Board (Annexure A-9) which stipulate that DPC will assess the suitability of officers for promotion on the basis of their service records with particular reference to 5 preceding years. DPC shall consider various factors and assign an overall grading for each of the officer under consideration and should assess officers as „fit‟ or „unfit‟ for promotion which was not done in this case. These guidelines are binding on the DPC. No such overall assessment has been done in case of the applicant by the DPC which deviated from the guidelines of Railway Board by downgrading APAR for the year 2010-11 to „Good‟ and for this reason the applicant was taken out of consideration due to the requirement of at least „Very Good‟ assessment in each year APAR as per the Railway Board guidelines dated 15.12.2015 (Annexure A-6). Thus the applicant was taken out of consideration by this decision of the DPC for 2010-11 APAR to downgrade in violation of the Railway Board guidelines dated 03.06.2002 (Annexure A-9). The learned counsel for the applicant also argued that the benchmarks for 13 O.A No. 1462/16 non-functional up-gradation as HAG or promotion to HAG are same and as the applicant was found fit for non-functional up- gradation HAG there was no justification on the part of the DPC to consider the applicant unfit for promotion to HAG. It was pointed out that the reason furnished by the DPC for downgrading the APAR for 2010-11 to „Good‟ is that although the Accepting Authority modified the grading from „Good‟ to „Very Good‟ but none of the attributes of Management Qualities was upgraded by the said authority. The learned counsel argued that there was no scope for Accepting Authority to upgrade each management qualities in the APAR and the said Authority has recorded the reasons for „Very Good‟ grading in para 5(iii) of para IV of APAR with following remarks "The reporting officer in Part III agrees with all entries in Part II, then a „good‟ rating is an under assessment.". Hence he argued that the Accepting Authority has given reasons for „Very Good‟ grading in the APAR and this was not considered by the DPC. Further, the downgrading in the APAR to below benchmark should have been communicated to the applicant as per the judgment of Hon‟ble Supreme Court in the case of Dev Dutt Vs. U.O.I - (2008) 8 SCC 725. Hence, the DPC‟s findings in respect of the applicant are illegal and the court can interfere in this case.
14 O.A No. 1462/16
12. The learned counsel for respondents broadly reiterated the points raised in the Court Affidavit. It was pointed out in a similar case in O.A No. 153/2015, this Tribunal has upheld the decision of the review Selection Committee which ignored „Very Good‟ assessments in the ACR while assessing a candidate overall as „Good‟. It was also pointed out that there are number of judgments of Hon‟ble Supreme Court which laid down the law that the DPC can overlook the assessment in APAR while assessing suitability of officers for promotion and court cannot interfere with the findings of the DPC/Selection Committee. The judgments of Hon‟ble Supreme Court on similar subject cited by the respondents in the Counter Affidavit and other pleadings include the following cases : -
i. Mrs. Anil Katiyar Vs. U.O.I & Ors - AIR 1997 SC 2656 ii. Union Public Service Commission Vs. L.P. Tiwari & Ors - 2006 (12) SCC 317.
iii. U.O.I & Another Vs. S.K. Goel and Another - AIR 2007 SC 1199.
13. In the case of Mrs. Anil Katiyar (Supra), the Hon‟ble Apex Court has held in para 5 as under: -
"Having regard to the said confidential procedure which is followed by the Union Public Service Commission, we are unable to hold that the decision 15 O.A No. 1462/16 of the DPC in grading the appellate as "very good"
instead of "Outstanding" can be said to be arbitrary. .......But, at the same time, it must be held that the Tribunal was in error in going into the question whether the appellant had been rightly graded as "Outstanding" in the ACRs for the year 1990-1991 and 1991-1992. The observations of the Tribunal that out of the two outstanding grading given to the appellant one "Outstanding" grading does not flow from various parameters given and the reports entered therein, cannot, therefore, be upheld and are accordingly set aside."
14. The Hon‟ble Apex Court in the case of Union Public Service Commission (Supra) has held in para 9 as under: -
"It is now more or less well settled that the evaluation made by an expert committee should not be easily interfered with by the courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose."
15. The Hon‟ble Supreme Court in the case of U.O.I & Anr. Vs. S.K. Goel ( Supra) has held in para 23 which reads as under: -
"23. For the forgoing reasons, we hold that the DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it.16 O.A No. 1462/16
Hence, the interference by the High Court is not called for."
16. After going through the pleadings available on record and submissions made at the time of hearing and keeping in view the judgments of Hon‟ble Supreme Court as indicated above, we are unable to accept the submissions of the learned counsel for the applicant that the finding of the DPC / Selection Committee in the case of the applicant is illegal and the applicant being considered suitable for non-functional up- gradation to HAG (NFU HAG) should have been considered suitable for promotion to HAG. Although as per the Railway Board guidelines dated 15.12.2015 (Annexure A-6) regarding benchmarks for promotion to administrative grades in Railway Services, the benchmark for NFU HAG and HAG are same, that would mean that the eligibility criteria of officers for being considered by the DPC / Selection Committee for NFU HAG and promotion to HAG would be same. This does not imply that once an officer is found fit for NFU HAG , he/she will have to be found fit for HAG. This is in view of the discretions given to DPC and criteria stipulated for regular promotion to administrative grades including HAG as per Railway Board‟s guidelines dated 03.06.2002 (Annexure A-9). As per these guidelines, the DPC can assign overall grading taking into account several years‟ performance and not merely relate to the entries / assessment 17 O.A No. 1462/16 recorded in the ACR. The authority of the DPC to assess the suitability of officers for promotion based on ACR as well as other criteria that may be decided by the DPC has been reiterated in catena of judgments passed by Hon‟ble Supreme Court. DPC has the freedom to decide the criteria to be applied to decide which officers are found „fit‟ or „unfit‟ for promotion. Moreover, as pointed out by the respondents in the Counter Affidavit, the constitution of DPC for promotion to HAG is different from that for NFU HAG. DPC for NFU HAG consisted of Chairman of Railway Board, Member Staff and the functional Member of Railway Board, whereas DPC for promotion to HAG consisted of Chairman Railway Board, Secretary DOP&T and the Member of Railway Board. Further, selection of the applicant for NFU HAG was on the basis of APARs for the years 2008-09 to 2012-13 whereas the DPC for promotion to HAG considered the APARs for the years 2010-11 to 2014-15. The criteria for promotion to HAG as would be followed by DPC can be different from the criteria for suitability for NFU HAG. Hence, we cannot accept the argument that since the applicant was found suitable for NFU HAG, he should also be found suitable for promotion to HAG by DPC as the benchmark for HAG and NFU HAG are same as per Railway Board guidelines. 18 O.A No. 1462/16
17. We are also not able to accept the contention of the learned counsel for the applicant that the Accepting Authority has recorded the reasons for his grading of the 2010-11 APAR of the applicant. Perusal of the copy of APAR for 2010-11 (for period 27.09.2010 to 31.03.2011) at para 5, part IV of the APAR it is seen that the Accepting Authority has recorded „No‟ in the column for „Suitability as DRM‟ although the overall grading was recorded as „Very Good‟. In other words, even the Accepting Authority has found the applicant not suitable for promotion as DRM as per the said APAR. In this context, the observation of the Selection Committee that none of the Management Qualities was upgraded by the Accepting Authority is correct and appropriate since when an officer is not found suitable for promotion as DRM even as per the assessment of the Accepting Authority who has graded the officer as „Very Good‟ for the period 2010-11 (27.09.2010 to 31.03.2011), it would have been difficult for the Selection Committee to find him suitable for promotion to HAG which is of higher rank than that of DRM. We also note that there is nothing on record to show that the applicant has objected to this assessment of the Accepting Authority in the APAR for the year 2010-11. The finding of the Selection Committee that the applicant does not meet the performance benchmark of „Very Good+‟ for promotion to HAG is based on the APAR for 2010-11 19 O.A No. 1462/16 as well as the grading in other years in the applicant‟s career as mentioned in the proceedings of the meeting of the Selection Committee (Annexure A-15). In view of the judgments of Hon‟ble Supreme Court in catena of cases, the Selection Committee was competent to make its own assessment of suitability of the candidates for promotion. Therefore, the decision of the Selection Committee not recommending the applicant for promotion to HAG is justified and cannot be interfered by this Tribunal.
18. Accordingly, the O.A is dismissed and the interim order dated 15.12.2016 is vacated. No costs.
(GOKUL CHANDRA PATI) (JUSTICE DINESH GUPTA) MEMBER-A MEMBER-J Anand...