Central Administrative Tribunal - Delhi
Sh. Bhoopal Singh vs Chairman on 15 September, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3023/2012
Reserved on : 05.09.2014.
Pronounced on :15.09.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Bhoopal Singh,
S/o late Sh. Raghuvir Singh,
H.No. 2732, Sector-49,
Sainik Colony,
Faridabad-121001. .. Applicant
(through Sh. K.K. Bhardwaj, Advocate)
Versus
1. Chairman,
Kendriya Vidyalaya Sangathan,
C-Wing, Shashtri Bhavan,
Dr. Rajendra Prasad Road,
New Delhi-1.
2. Commissioner,
Kendirya Vidyalaya Sangathan,
18-Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-67.
3. Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
19-Institutional Area, Shaheed Jeet
Singh Marg, New Delhi-67. .... Respondents
(through Sh. K.M. Singh for Sh. S. Rajappa, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was working as PGT in Kendriya Vidyalaya Sangathan (KVS). During his tenure in IVRI Mukteshwar he got involved in disciplinary proceedings and was placed under suspension w.e.f. 04.07.2001. He was terminated w.e.f. 27.06.2003. However, after prolonged legal battle the applicant was reinstated w.e.f. 14.02.2006. By an order dated 10/17.08.2007 the respondents also decided to pay him full pay and allowances for the intervening period from 04.07.2001 to 13.02.2006. His grievance is that during the period he faced the disciplinary proceedings, his case for promotion to the post of Vice-Principal has not been considered by the respondents despite the fact that he was senior enough to be so considered and his seniority also stood restored after completion of disciplinary proceedings pending against him. According to him through RTI he has come to know that in his ACR for the year 2001 his performance has been graded as average. He apprehends that it was because of this ACR that he was found unfit for promotion. The applicant has further stated that this ACR has never been communicated to him. As such, the respondents erred in taking this into account. He has, therefore, prayed that the respondents be directed to consider his promotion after ignoring the ACR for the year 2001. In this regard, he has relied on the judgment of this Tribunal in OA-1671/2007 (Mrs. P. Kathuria Rtd PGT Vs. KVS) in which this Tribunal had held that ACR for the period 2004 of the applicant therein should be communicated to her and she may be given an opportunity to make a representation against the same. Directions were also issued to the respondents to consider the representation of the applicant therein and communicate their decision by passing a reasoned and speaking order. Thereafter, the same applicant again filed OA-3887/2010 in which this Tribunal had directed reconsideration of her case for promotion ignoring the ACR for the year 2004. The applicant has prayed that same relief as was extended to Mrs. P. Kathuria be extended to him as well.
2. In their reply, the respondents have stated that the applicant was under suspension w.e.f. 27.07.2001 to 26.06.2003. He was terminated w.e.f. 27.06.2003 and remained under termination upto 15.08.2005. He again joined duty at KVS Joshimath on 14.02.2006. A DPC meeting was held on 22.03.2005 to consider promotion of PGTs to the post of Vice-Principal for the year 2005-2006. However, since on the date of DPC the applicant stood terminated, his case was not considered. Thereafter, the name of the applicant was considered by DPC meeting held on 27.07.2006 for the year 2006-2007 but was kept pending for want of ACR. Again, DPC meeting was held on 19.09.2006 in which his case was considered along with other pending cases. He was, however, found unfit for promotion. The applicants name was again considered by DPC meeting held on 21.11.2007 for the year 2007-2008. He was again found to be unfit for promotion. The applicant retired from the services of the Sangathan on superannuation in January, 2008.
2.1 As far as communication of ACR to the applicant is concerned, the respondents have stated that the grading of average was not considered as an adverse entry and, therefore, was not communicated to him.
3. We have heard both sides and have perused the material on record. From the facts narrated above, it is clear that the applicant had become due for promotion to the post of Vice-Principal in the year 2005-2006. However, his name was not considered in the DPC meeting held on 22.03.2005 on account of the fact that he was under termination on that date. Thereafter, he had been considered in the DPC for the years 2006-2007 and 2007-2008 as well but was found to be unfit The applicant apprehends that he was found to be unfit for promotion because of uncommunicated ACR of the year 2001 being taken into account by the DPC. The respondents have admitted that his ACR for the year 2001 was average against the bench-mark for promotion of good but was not communicated to him because it was not treated to be adverse. In the case of Dev Dutt Vs. UOI & Ors., AIR 2008 SC 2513 Honble Supreme Court has held that non-communication of ACR which is below the bench-mark for promotion is violative of the Constitution. In the case of Sukhdev Singh Vs. UOI & Ors., (CA No. 5892/2006) decided on 23.04.2013 Honble Supreme Court has observed as follows:-
6. We are in complete agreement with the view in Dev Dutt particularly paragraphs 17, 18, 22, 37 & 41 as quoted above. We approve the same.
7. A three Judge Bench of this Court in Abhijit Ghosh Dastidar vs. Union of India and others followed Dev Dutt. In paragraph 8 of the Report, this Court with reference to the case under consideration held as under:
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 ACR 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 for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision 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.
8. In our opinion, the view taken in Dev Dutt that (2009)16 SCC 146 every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR poor, fair, average, good or very good must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others and K.M. Mishra vs. Central Bank of India and others and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.
10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law.
11. I.A. No. 3 of 2011 for intervention is rejected. It will be open to the applicant to pursue his legal remedy in accordance with law.
Therefore, in terms of law laid down by the Honble Supreme Court the respondents were duty bound to communicate not only this ACR but also any other ACR which was below bench-mark and which was to be taken into consideration for promotion. They may do so now.
3.1 Secondly, since the applicant had been reinstated in service with full honors his case for promotion to the post of Vice-Principal for the year 2005-2006 also needed to be considered as he had not been considered earlier on account of being under termination.
4. The applicant had pleaded that the case of the applicant for promotion be considered after ignoring his ACR for the year 2001 as was done in the case of Mrs. P. Kathura (supra). We are aware that relief was granted to Mrs. P. Kathuria in the light of judgments of the Honble Supreme Court in the cases of Abhijit Ghosh Dastidar Vs. UOI & Ors., (Special Leave to Appeal (Civil) No. 26556/2004) dated 22.10.2008. Thereafter pursuant to the judgments of Honble Supreme Court in Sukhdev Singh Vs. UOI & Ors., (Civil Appeal No. 5892 of 2006) dated 23.04.2013 and UOI Vs. A.K. Goel & Ors., (Civil Appeal No. 2872/2010) dated 20.11.2013 and Honble Delhi High in the case of UOI & Ors. Vs. Swati Patil (WP(C) No. 4018/2011 decided on 01.04.2013, the legal position has under gone a change and this relief cannot now be allowed.
5. We allow this O.A. and direct the respondents to communicate to the applicant all the below bench-mark ACRs including the ACR for the year 2001, which would be taken into consideration for the purpose of promotion to the post of Vice-Principal. Thereafter, the applicant may be given an opportunity to represent against the below bench-mark gradings. In case any of the ACRs of the applicant is upgraded, the applicant will be considered for promotion to the post of Vice-Principal for the years 2005-2006, 2006-2007 and 2007-2008 and will be promoted in the earliest years in which he is found fit. If so promoted, he will also be entitled to consequential benefits of pay and pension fixation and arrears of pension. This exercise will be completed within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/