Central Administrative Tribunal - Madras
M. Varadarajan And Anr. vs Union Of India (Uoi) And Ors. on 30 October, 2007
Equivalent citations: 2008(98)SLJ379(CAT)
ORDER R. Ganesan, Member (A)
1. The applicants in these O.As. working as Civilian Motor Driver Ordinary Grade in INS Rajali, Arakonam have sought the following relief:
To quash the order Nos. CE/2007/CMD/05 dated 9.12.2005 of the 2nd respondent together with Order No. CP(NG)/6001/Gen/dated 23.8.2006 of the 1st respondent as illegal and for a consequential direction to respondents 1 to 3 to consider and promote the applicant as Civilian Motor Driver, Grade II by convening a review DPC with effect from the date the respondents 4 to 8 were promoted with all attendant benefits like seniority, pay fixation, allowances etc., For such further or other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of the case and thus render justice.
2. The applicant in O.A. No. 950/06 joined as Civilian Motor Driver Ordinary Grade in March 1993 and the applicant in O.A. No. 976/2006 joined as Civilian Motor Driver Ordinary Grade in June 993 and the next avenue of promotion for the applicants is Civilian Motor Driver Grade II. The applicant in O.A. 976/06 though qualified in the trade test held in 2002 was overlooked then and again in 2005. The applicant in O.A. 950/06 qualified in the trade test held in 2004 and yet he was overlooked for promotion as CMD II.
3. The applicants stated that by virtue of their eligibility and qualification as per recruitment rules and in the absence of any disciplinary action pending against them or adverse remarks in their career, the respondents cannot overlook their promotion. To their representations dated 29.7.05, the respondents issued the impugned communication dated 9.12.05 rejecting their claim on the ground that the DPC did not recommend their names because of low merit. The applicant stated that since as per recruitment rules and procedure, the DPC had to either classify the employee fit or unfit and hence the question of classifying them as having low merit cannot arise at all.
4. Therefore they represented to the second respondent stating that promotion to CMD Grade II is by non-selection method and therefore they ought to have been selected and promoted as there was no disciplinary action pending or contemplated and they had no adverse remarks. However, the first respondent by impugned order dated 23.8.06 rejected their appeal again on the ground that the applicants were found 'unfit' by the DPC. The denial of promotion to the applicants on the one hand and granting the same to their juniors namely respondents 4-6 in the non-selection method of appointment is ex facie illegal and arbitrary, hence the O.A.
5. The respondents have replied to the two O.As. more or less on identical terms denying the averments made therein. They stated that the applicants were appointed as Civilian Motor Driver Ordinary Grade initially and promotion to the said grade is to the level of Civilian Motor Driver Grade II. The promotion is by non-selection method subject to requisite service in the grade, passing the qualifying test and subject to fitness as assessed by the DPC as per the guidelines laid down for promotion rules.
6. They stated that the applicant in O.A. 950/06 qualified in the trade test during June 2004 while the applicant in O.A. 976/06 qualified in the trade test in September 2002, which is one of the conditions for consideration for promotion to the post of Civilian Motor Driver Grade II. However, this alone does not give them a right for promotion as they should fulfill other conditions such as requisite service and must be fit for promotion. If at all juniors are promoted it is due to the reservation policy of the Government or they were found to be fit by the DPC. The applicants herein were found unfit for promotion by the DPC constituted in accordance with SRO and Government orders on the subject. Not only the applicants but also other Civilian Motor Drivers senior to them were not promoted when they were found unfit for promotion by the DPC. They stated that the law is settled that mere lack of adverse remarks nor not undergoing any disciplinary proceedings alone will entail the Government servant for promotion.
7. The respondents stated that the representations of the applicants were carefully considered and rejected because the DPC found them unfit for promotion to the post of CMD Grade II. They stated that the promotion to Civilian Motor Driver Grade II should be made on "non-selection" basis and as per rules, the DPC should categorize the officers as 'fit' or 'not yet fit' for promotion on the basis of assessment of their service record with particular reference to the confidential report for preceding five years irrespective of qualifying service prescribed for promotion. Hence there is no violation of rules or grant of promotion on par with respondents 4-6. Therefore, they pleaded for dismissal of the O.As.
8. We have heard the learned Counsel for the applicants and the respondents and perused the relevant records carefully. Learned Counsel for the applicants stressed the fact that promotion from CMD SG to CMD Grade II is by non-selection method where the question of fitness has to be looked into keeping in view the service records for the purpose of adverse entry if any and also to see whether any punishment has been awarded. However, the respondents vide letter dated 9.12.05 have replied to the applicants initially stating that they were not promoted "owing to their low merit and DPC did not recommend their names in the promotion". Subsequently, in their communication dated 23.8.06 they informed the applicants that they "have not been found 'fit' by the DPC for promotion". The replies revealed that the applicants have been subjected to a selection process not in conformity with procedure meant for promotion by non-selection method meant for CMD Grade II because the respondents have made comparative assessment in stating that the applicant had low merit implying that employees with higher merit have been promoted. Learned Counsel also relied on the order of the Ahmedabad Bench of this Tribunal dated 18.8.04 in O.A. No. 638/02 wherein it has been held that fitness would mean in promotion by seniority-cum-fitness that there should be no adverse entry in the CR and no disciplinary proceedings should be pending against him. As the applicants herein did not have either of these, and so they are entitled for promotion.
9. Learned Counsel for the respondents, however, stated that the DPC proceeding is final and they have adopted the criteria uniformly for all the candidates and based on the yard stick only the applicants have not been declared as not fit by the DPC. He also produced the DPC minutes as well as the relevant CR sheets for our perusal. Further, he distinguished the order of this Tribunal relied on by the learned Counsel for the applicant on the ground that the average performance is not an adverse entry and the DPC has considered the CRs based on their performance and as the duly constituted body has decided the matter in accordance with the recruitment rules, the same is not questionable.
10. The short point that arises for consideration in the O.As. relates to the aspect whether the DPC has been held in accordance with the procedure to be followed for non-selection method of promotion. Admittedly, the issue here relates to promotion from Civilian Motor Driver Ordinary Grade to Civilian Motor Driver Grade II in Group C and it has been replied to by the respondents that the promotion to this grade is on non- selection basis. Whereas a selection oriented promotion would warrant comparative assessment of the candidates in the zone of consideration and choose the better of the lot vis-a-vis those with lower merit, the non-selection method of promotion essentially entails weeding out those who are unfit for promotion and this aspect is decided keeping in view the adverse remarks, if any, in the CRs of the relevant period and also whether the candidates have undergone or facing any punishment/disciplinary action. We do agree with the submissions made by both sides that average remark in the ACR does not constitute an adverse entry. However, the facts and the circumstances of the cases referred to by the learned Counsel for the applicant in O.A. No. 638/02 do not fully conform to those of this case as the DPC in that case relied on by the applicant had not considered the name of the applicant therein at all for promotion whereas in the matter on hand, the DPC has categorized the applicants as unfit. It is settled law that Court cannot interfere with the decision of the DPC but only it can look into the procedure adopted by the DPC and only if any deficiencies are noticed in the procedure, there is , a ground for, as could be seen as under:
In Kuldip Chand v. State of Himachal Pradesh and Ors. the Hon'ble Supreme Court has defined the jurisdiction of the Administrative Tribunal in the context of DPC as under:
Whether a candidate is fit for a particular post or not is the field exclusively reserved for Selection Committee. The Tribunal haying no expertise on such subject had no jurisdiction to interfere with decision of Selection Committee except on limited grounds such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala fides affecting the selection etc. Quoting the judgment in Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan .
(Emphasis added)
11. Applying the above ratio, the issue to be looked into is the procedure followed by the DPC herein in deciding the promotion process in the non-selection method of promotion. A perusal of the DPC records show that the DPC had uniformly followed a pattern whereby they declared the candidates with three 'good' entries out of five years as fit for promotion and those who had 'good' for two years and less were treated as unfit. This prima facie is a selection method where they had tried to compare the inter se merit of the candidates in the zone placed before the DPC and by choosing those with three 'good' in preference to those with lesser number of 'good' they have adopted typically selection method of promotion which is not contemplated for promotion to CMD Grade II according to the recruitment rules. Hence, the DPC proceedings dated 8.7.05 in respect of promotion to the grade of Civilian Motor Driver Grade II has to be set aside and so it is set aside on the ground that the procedure followed is not in conformity with the recruitment rules meant for promotion to CMD Grade II.
12. The procedure to be adopted for non-selection method of promotion has to be, subject to the rejection of unfit and the lack of fitness can be considered to be those with adverse remarks or those facing punishment, etc. An average remark in the CR cannot be considered to be an adverse remark as per DOP O.M. dated 27.3.97 and as admitted by the respondents themselves and therefore that cannot be a disqualifying factor for consideration for promotion in the case of non-selection process of promotion. In this context, the reference in the order of this Tribunal, Ahmedabad Bench in O.A. 638/02 to the discussion on procedure for non-selection mode promotion is relevant as under:
Furthermore admittedly the method of selection was seniority-com-fitness and what is meant by seniority-cum-fitness is considered by the Supreme Court in the case of Union of India and Ors. v. Lt. General Rajendra Singh Kadyan 2001 (1) SU 354 (SC) : 2000 SCC (L&S) 797. It is observed therein that selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories namely:
1. Seniority-cum-fitness
2. Seniority-cum-merit and
3. Merit-cum-suitability with due regard to seniority Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unit.
What is meant by fitness is laid down in Union of India v. Administrator, Delhi Administration and Ors. 1991 (Supplementary) 2 SCC 635, there it has been held that 'fitness' means that there should not be any adverse remarks in the character rolls of the concerned persons, at least for the last three years and no disciplinary proceedings should be pending against him.
13. The settled principle in regard to promotion by non-selection method referred supra has not been followed as explained in prepares and therefore, the DPC has to be reconvened in respect of promotion for CMD Grade II by evolving appropriate selection methodology strictly in conformity with the non-selection process to assess the fitness or otherwise of individual candidate and without adopting any comparative assessment of inter se merit of candidates and fresh promotion list has to be drawn and implemented accordingly.
14. We, therefore, direct the respondents to reconvene the DPC and issue necessary promotion orders to the positions of CMD Grade II by strictly following the methodology of non-selection process and issue necessary order to that effect within a period of six weeks from the date of receipt of copy of this order. O.As. are allowed. No order as to costs.