Central Administrative Tribunal - Delhi
Ghanshyam Jha S/O B. K. Jha vs Union Of India on 18 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No. 3664 of 2010 This the 18th day of October, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Ghanshyam Jha S/o B. K. Jha, R/o 119, Janki Apartment, Plot No.7, Sector-22, Dwarka, Phase-I, New Delhi-110075, Working as Commissioner (CADWM), Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001. Applicant ( By Shri R. N. Singh, Advocate ) Versus 1. Union of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001, through its Secretary. 2. Central Water Commission, Sewa Bhawan, R.K. Puram, New Delhi-110066, through its Chairman. 3. Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110011, through its Secretary. 4. Narendra Kumar-II, Chief Engineer, B&BBO, Shillong (to be served through Respondent no.1) Respondents ( By Shri Rajesh Katyal and Ms. B. Rana, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Ghanshyam Jha, the applicant, while on deputation to an ex cadre post and working as Commissioner (CADWM), Ministry of Water Resources w.e.f. 3.12.2008, has been overlooked in the matter of promotion to the Senior Administrative Grade (SAG) of the Central Water Engineering (Group A) Service on the only ground that one of his ACRs, out of five, under consideration was not commensurate to the benchmark, which had to be consistently very good for all the five years. The applicant has indeed been promoted later, and in such consideration as well, the same very report which had been taken as not commensurate to benchmark, has been so treated and the applicant, as mentioned above, has even been promoted. The applicant takes strong exception to his being superseded in the matter of promotion in the DPC that was first held, wherein one of his ACRs, out of five, became a hurdle in the matter of his promotion. In the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, the obvious prayer is thus to direct the respondents to promote him to the SAG of the Service from the date his juniors were so promoted with all consequential benefits.
2. Brief facts on which the relief indicated above is sought to rest reveal that the applicant joined service under the 1st respondent on being declared successful in Combined Engineering Services Examination, 1979, and was allocated to the Central Water Engineering (Group A) Service. He joined as Assistant Director, Hydel Civil Design in the Central Water Commission in 1981. The applicant claims to have a brilliant academic record and is said to have qualified in the Joint Entrance Examination (JEE) conducted by the Indian Institute of Technology (IIT) and admitted into Banaras Hindu University, Institute of Technology, and took both his B.Tech (Civil) and M.Tech (Structures) from the said institute with first class distinction. He came to be promoted as Deputy Director in June, 1986 and then to the post of Director (Flood Management-I) on ad hoc basis in October, 1986, on which post he was regularized in June, 2001. It is the case of the applicant that his name appears at serial number 181 of the relevant seniority list, whereas the name of Narendra Kumar, the 4th respondent, appears at number 183. The applicant is presently on deputation to an ex cadre post and working as Commissioner (CADWM), Ministry of Water Resources, w.e.f. 3.12.2008. The case of the applicant is that for such deputation he has been found suitable and selected by the interview board comprising experts appointed by the 3rd respondent herein. The 3rd respondent is stated to be following rigorous selection procedure, which includes examination of bio data, annual confidential reports (ACRs) of the candidates, and interview. It is further the case of the applicant that out of about ten applicants for the post aforesaid, he was found the most suitable candidate for the post and was accordingly appointed thereto. It is pleaded that he has been selected by a high powered board of the Government of India. The applicant obtained copies of his ACRs for the last nine years, i.e., from 1.4.2000 to 31.3.2009 under the Right to Information Act, copies whereof have been annexed with the present application as Annexure A-4 (colly.). The applicant has, for facility of reference, tabulated his ACRs at Annexure A-7 (colly.). From the said compilation, it is pleaded, it would be evident that 16 officers have reported/reviewed the performance of the applicant while completing his ACRs for different years, and that all the officers aforesaid, except one, have graded him either very good or outstanding, and the only officer who has graded him good for the period 22.8.2005 to 31.3.2006 and again from 1.4.2006 to 1.3.2007, is the same. It is pleaded that the said officer had no reason or justification for grading the applicant below benchmark, inasmuch as he had never advised, warned or commended the applicant to improve his performance. Moreover, the higher authority, who has been the reviewing authority, himself found that the applicant had been under-rated and rated his performance as very good for the first period, i.e., 22.8.2005 to 31.3.2006. The same reviewing authority was there for the period 1.4.2006 to 1.3.2007 as well, but the review for the said period could be done only after 1.3.2007, and meanwhile the said officer retired on 31.1.2007. The applicant pleads that he can legitimately expect that had the reviewing officer been in position up to 1.3.2007, he would have upgraded his performance from good to very good for the period 1.4.2006 to 1.3.2007 as well. Be that as it may, the said report was inconclusive or incomplete, as no other officer ever considered the grading done by the reporting officer. The DPC met in March, 2009 and vide order dated 23.7.2009 the applicant came to know that persons junior to him had been promoted, whereas he had been ignored. Aggrieved thus, he submitted a representation on 18.8.2009. On 22.6.2010, however, the 1st respondent passed an order promoting the applicant along with another officer to the SAG of the Service under Next below Rule while on deputation to an ex cadre post, in absentia with effect from 29.4.2010. Thereafter the applicant submitted another representation dated 1.7.2010 to the 1st respondent requesting for review of his ACRs for the period 1.4.2006 to 1.3.2007, as also holding review of the DPC held in March, 2009, but with no tangible results. It is in wake of facts and circumstances, as mentioned above, that the present OA has been filed.
3. Pursuant to notice issued by this Tribunal the respondents have entered appearance and by filing two sets of counter replies one on behalf of respondents 1 and 2 and the other on behalf of respondent No.3, have contested the cause of the applicant.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Meeting of the DPC was held on 20.3.2009 for the vacancies pertaining to the year 2008-09. The applicant was assessed unfit by the DPC. The representation made by the applicant against his supersession has since been rejected. As regards the incomplete ACR of the applicant for the period as mentioned above, it is the case of the respondents 1 and 2 that retirement of officers in Government of India is well known and the concerned reviewing authority cited by the applicant, retired on 31.1.2007. However, the applicant submitted his ACR with his self-appraisal, i.e., part 2 of the ACR, duly filled in by himself, to the reporting authority on 5.6.2007, i.e., four months after the retirement of the reviewing officer. In this connection, the respondents have relied upon Government of India instructions that if a reviewing authority retires while there is no change in the reporting officer and the subsequent reviewing authority does not have three months experience of the work and conduct of the reportee, the reviewing portion will be left blank with a suitable note recorded therein, which can be recorded by the new reviewing authority who could not review the report because he did not have three months experience, or by the reporting officer himself. It is pleaded that in the present case, the ACR was for the period 1.4.2006 to 1.3.2007 and not up to the year ending 31.3.2007, and that the reviewing officer had retired on 31.1.2007. Since the ACR reported was for the period up to 1.3.2007, and hardly a period of one month was left for the next reviewing officer, as per rules the reviewing portion was left blank and a certificate was recorded as per rules.
5. The fact that the applicant was reported as very good or outstanding by all officers, be it reporting or the reviewing officers, except one, for the last nine years, is not in dispute. The only reporting officer who has assessed the applicant as good for two successive periods, as mentioned above, is Shri A. B. Pal. As regards the first period from 22.8.2005 to 31.3.2006, the reviewing officer did not agree with the assessment made by him, and upgraded the report of the ACR to very good. The same very reporting officer, i.e., Shri A. B. Pal, again graded the applicant as good for the period 1.4.2006 to 1.3.2007, and admittedly the ACR for the period aforesaid is inconclusive or incomplete. We do find considerable merit in the plea raised by the applicant that had the grading for this period as well been reviewed, be it by the officer who had retired or anybody else, there was every likelihood that the same would have been upgraded. The facts of the present case are so impressive that it appears that non-completion of the ACR of the applicant for the period aforesaid has prejudiced him. For the last nine years, the applicant has been reported by 15 officers either as very good or outstanding. Only one officer for two consecutive periods from 22.8.2005 to 31.3.2006 and 1.4.2006 to 1.3.2007 has graded him good, and as mentioned above, as regards the first period, the reviewing officer did not agree with the same. These facts may have been enough for the reviewing officer, if the report of the applicant was to be completed, for upgrading the same. Be that as it may, we may not go into this high probability, but would rest our decision on the settled law on the issue.
6. It has been consistently held by this Tribunal that ACR is required to be recorded at two levels, and in case one of the levels is not available, then the ACR cannot be treated as complete. In such an event the said ACR has to be ignored, and instead ACR for the preceding year, i.e., preceding immediately the first ACR under consideration, should be taken into consideration. In that regard we may refer to a decision of this Tribunal in OA No.24/2007 in the matter of Ashok Kumar Aneja v Union of India & others, decided on 20.11.2008. Relevant observations made in the judgment aforesaid read, thus:
4. In so far the second issue regarding an ACR being incomplete without being reviewed and in such circumstances it not being advisable for the DPC to consider such ACR is concerned, the matter has been considered by the Ahmedabad Bench of this Tribunal in Shri A.P. Srivastava Vs. Union of India and others, OA No.673/2004 decided on 9.01.2007. The aforesaid learned Bench has taken into consideration the ratio laid down by the Honourable Supreme Court in State Bank of India Vs. Kashi Nath Kher, AIR 1996 SC 1328, which is reproduced below :
15. It would appear that the confidential reports and character rolls are being prepared by the officers of the same rank in the same MMGS-II working in the establishment department over the same cadre officers working elsewhere and the reporting officers are the same. Ms. Nisha is right and the High Court is well justified in holding that such a procedure is violative of the principles of natural justice. Such procedure and practice is obviously pernicious and pregnant with prejudices and manipulative violating the principles of natural justice and highly unfair. The object of writing confidential report is two fold, i. e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This Court in Delhi Transport Corporation's case (AIR 1991 SC 101) pointed out pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectively, impartially and fair assessment without any prejudices whatsoever with highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by superior officer of high rank, who are such high rank officers is for the appellant to decide. The appellants have to prescribe the officer competent to write the confidentials. There should be another higher officer in rank above the officer who has written confidential report to review such report. The appointing authority or any equivalent officer would be competent to approve the confidential reports or character rolls. This procedure would be fair and reasonable. The reports thus written would form basis for consideration for promotion. The procedure presently adopted is clearly illegal, unfair and unjust. The Ahmedabad Bench thereafter has held thus :
12. We are accordingly of the view that the ACR is required to be recorded at two levels and in case one of the levels is not available then the said ACR can not be treated as complete. In the instant case there is an additional factor referred to above.
13. We are accordingly of the view that the ACR of applicant for the year 2002-03 is not complete and hence can not be considered for promotion to the next higher rank. This judgment has since been confirmed by the Honble High Court of Delhi vide order dated 1.4.2009 passed in WP(C) No.7964/2009. We took the same view in OA No.253/2009 in the matter of Balvinder Singh v Union of India, decided on 26.3.2010.
7. There is yet another aspect of this case which is also equally relevant. The applicant has been promoted in absentia, where one of the ACRs under consideration was the same on the basis of which alone the applicant had been found unfit by the DPC which met on 20.3.2009. What would clearly appear is that the same very report which had been considered as not commensurate to the benchmark, has been so considered, and, in our view, rightly so, as the incomplete report could not visit the applicant with adverse consequences.
8. For the reasons as mentioned above, this Original Application is allowed. The orders passed by the respondents rejecting the representation of the applicant for his promotion shall be set aside. A direction is issued to the respondents to consider the case of the applicant for promotion by constituting a review DPC by completely ignoring the ACR for the period 1.4.2006 to 1.3.2007, and instead take into consideration ACR for the preceding year, i.e., preceding immediately the first ACR under consideration by the DPC, and if on that basis the applicant is found fit for promotion, to do so from the date person immediately junior to him was promoted. In that event, we are of the firm view, the applicant would be entitled to all consequential benefits as he may be entitled to under the rules. There shall, however, be no orders as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
At this stage, after reading the judgment, counsel for applicant points out that this Tribunal has not given any time bound directions for respondents to hold the review DPC, and that the applicant has also been superseded by his juniors. Counsel seems to be right. Normally in a case like this, a time bound direction is given, which, somehow, we have missed. That being so, we direct the respondents to hold review DPC, as expeditiously as possible and preferably within a period of eight weeks from today.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/