Central Administrative Tribunal - Delhi
P.N. Sharma vs Union Of India Through on 21 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO.1291/2008 New Delhi, this the 21st day of November, 2008 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) P.N. Sharma, Section Officer, Roster No.296, LAO, CSD, [I] Delhi Cantt-110010 Applicant (By Advocate: Shri E.J. Verghese) VERSUS Union of India through 1. The Secretary, Ministry of Defence [Finance], South Block, New Delhi 110 011 2. The CGDA, West Block-V, R.K. Puram, New Delhi-110 066 3. Shri Tarender Singh, AFA [Retd], Through the Office of the Secretary Defence [Finance] South Block, New Delhi-110 011 4. Shri S.P. Bali, Section Officer, GS Section, South Block, New Delhi 110 011 Respondents (By Advocate: Shri Rajinder Nischal) O R D E R By Honble Dr. Veena Chhotray, Member (A):
The applicant is a Section Officer in the Defence Accounts Department working on deputation under the Ministry of Defence. He is aggrieved by the denial of promotion to the grade of Assistant Accounts Officer (AAO) despite his fulfilling the required eligibility conditions. It is alleged that several Section Officers junior to him had been promoted w.e.f. 1.4.2005, the claim of the applicant had been unjustly ignored. The applicant had been given adverse ACRs for the years 2002-03 and 2003-04; his representation against the same had been rejected. While the applicants claim for promotion was not considered by the original DPC held in October 2004 due to non finalization of ACRs for these two years, the subsequent review DPC held on 24.3.2006 and 24.01.2007 he had not been found fit.
2. Through the present OA, the following reliefs have been sought:-
(a) Allow the Application of the Applicant under section 19 of the Administrative Tribunals Act 1985 with cost.
Quash and set aside the minutes / order of Review DPC dated 24/3/2006 and 24/1/2007.
Quash and set aside the adverse remarks dated 8/4/2005 for the period 2002 to 2003 and 11/4/2005 for the period 2003-2004.
Quash and set aside the orders of rejection dated 4/1/2006 Direct the respondent No.1 and 2 to ignore the ACRs of 2002-2003 and 2003-2004 and promote the applicant on the date his juniors were promoted i.e. with effect from 1/4/2005 with all consequential benefits.
Direct the respondent No.1 to initiate disciplinary action against the respondent No.3 & 4 under the provisions of OM No.21011/4/2003-Estt[A] dated 26/5/2003 for their deliberate and willful intention to damage the career of the applicant by delaying the submission of ACRs for the year 2002 and 2003 and 2003-2004.
Grant the cost of the petition, and Pass any other orders as deemed fit and proper in the facts and circumstances of the case.
3. The present OA is second in the series. Vide OA No.942/2005 a similar prayer assailing his non-promotion and alleging malafides against the Respondents had been disposed of vide order dated 4.7.2006. The Tribunal had by this order directed the Respondents to consider the applicants representation regarding his adverse remarks by a detailed and speaking order. Further subject to the final outcome of the representation, the Respondents were also directed to hold a review DPC to consider the claim of the applicant for promotion. The representation of the applicant against the adverse remarks in question was not found acceptable and rejected by the Respondents. However, in pursuance of the Tribunals direction, a review DPC was held on 24.1.2007and considering the adverse remarks for these two years, the applicant was not found fit for promotion (Annexure A/1 Colly.).
4. Though several grounds have been cited in support of the OA, the main contentions are that by not considering the case of the applicant in the original DPC held in October 2004 there was a violation of prescribed instructions. A reference to the DOP&T OM dated 20.6.1989 is made to aver that where one or more ACRs are not written for any reason the DPC is required to consider ACRs of the preceding years or even the ACRs of the lower grade also for promotion and in no case promotion is disallowed (para 5(u) of the OA).
Besides, it is contended that the adverse character of the ACR for the two years in question was on account of bias on the part of the Reporting and Reviewing Authorities. This is said to have been clearly brought out by the applicant in his representation made on 14.11.2004 and specifically is alleged to be revealed by the Respondents treating his period of leave for 27 days as dies-non. The OA also cites several case laws in support of the contention for non-consideration of the adverse ACRs in this particular case:
Judgment dated 23.5.1989 passed in OA No.165/1987 by the Ernakulam Bench of the Tribunal; Judgment of the Bangalore Bench of the Tribunal in OA No.1770-1799/1988;
Judgment of Chandigarh Bench of the Tribunal in OA No.80/1988 [Lalit Bhatia v. State of Punjab]; Judgment dated 20.3.1999 of Chandigarh Bench of the Tribunal in OA No.503/1988; Decision of Honble Supreme Court in the case of A.K. Krqipak v. Union of India, AIR 1970 SC 150; Decision of Honble Supreme Court in the case of Sukhdeo v. Commissioner Amravati Division, 1996 SCC (L&S) 1141; Judgment dated 26.10.2007 by the Principal Bench in OA No.2554/2005 (Mahesh Behl vs. Union of India & Ors);
5. The OA is contested by the Respondents with the preliminary objections of being barred by Rule 10 of the Central Administrative Tribunals (Procedure) Rules, 1987, as the applicant has sought multiple reliefs as also for non-exhaustion of departmental remedies available to him.
Para 4.6 of the counter avers that the applicant could not be considered for promotion to the grade of AAO due to non-finalization of his ACRs because the applicant himself had mischievously delayed the submission of his ACR resume. It is further submitted that though he had been given the ACR forms for submitting his self-appraisal in the fortnight of March 2003 and March 2004, this was deliberately delayed by the applicant with an ulterior motive to circumvent the rules and instructions of the DOP&T so that his latest ACRs about his grave misconduct would not be made available to the DPC (Para 4 (9-11) of the counter). In the given situation, the aforesaid OM of 10.4.1989 is said not to be applicable. The allegation of bias would also be rebutted by the learned counsel with the averment that the applicant had not made any reference to it in his representation against the adverse remarks. Besides, the counter seeks to annex several documents purported to support the adverse remarks showing unsatisfactory performance on his part during the periods in question.