Central Administrative Tribunal - Delhi
Shri Iqbal Beg vs Union Of India on 14 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1374/2013 New Delhi this the 14th of February, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Iqbal Beg S/o Ismail Beg 10, Kishan Ganj Railway Colony, Delhi. ..Applicant (By Advocate Shri Mahesh Srivastava) Versus 1. Union of India Through its Secretary, Ministry of Defence, South Block, New Delhi. 2. The Director General, Defence Estates, Ministry of Defence, Raksha Bhawan, Ulaanbaatar Marg, Delhi Cantt., Delhi-110 010. 3. The Principal Director, Defence Estates, Ministry of Defence, Central Command, 17 Cariappa Marg, Lucknow Cantt., Lucknow. 4. The Defence Estates Officer Bareilly Circle 53, Serperntine Marg, Bareilly Cantt., Bareilly. Respondents. (By Advocate: Shri M.K. Bhardwaj) O R D E R(ORAL) Shri G. George Paracken, Member (J):
The Applicant is aggrieved by the decision of the Respondents conveyed to him vide order dated 20.05.2010 granting him the benefits of 1st and 2nd financial upgradations under the Assured Career Progression Scheme, (ACP Scheme for short) 1999 with effect from 01.01.2003 instead of 09.08.1999 and also by the denial of benefits of 3rd MCP Scheme from the due date even though they have agreed in principle to grant the same to him vide their Office Order No.35034/3/2008-Estt.(D) date 19.05.2009.
2. The brief facts necessary for adjudication of this case are delineated hereunder: Applicant was initially appointed as a Surveyor Draftsman in the year 1971 in the pay scale of Rs.150-300 in the Directorate of Defence Services, Central Command, Lucknow. The said post was re-designated as SDO-III in the year 1986 and was placed in the revised pay scale of Rs.425-700 in terms of the recommendations of the 3rd Pay Commission. As per the recommendations of the 5th Pay Commission, he was granted the pay scale of Rs.5000-8000 for the same post with effect from 01.01.1996.
3. The Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), Government of India introduced the ACP Scheme for the Central Government Civilian employees which came into force from 09.08.1999. The Respondents have also adopted the said Scheme for their civilian employees. As the Applicant was not given the benefit arising from the aforesaid Scheme with effect from 09.08.1999, he submitted a number of representations but no action was taken by the respondents. He has, therefore, approached the Allahabad Bench of this Tribunal earlier vide OA No.56/2010 seeking the following relief:-
To issue writ, order or direction to the respondents to grant financial up-gradation in the pay scale of Rs.5000-9000 w.e.f. 09.08.1999 in comparison to the junior and next financial up-gradation in the pay scale of Rs.6500-10500 as per Office Memorandum dated 09.08.1999 and 19.05.2009 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), North Block, New Delhi, with all consequential benefits with interest @ 12% per annum.
4. The aforesaid OA was disposed of, vide order dated 05.01.2010, directing the respondents to consider and decide his representation dated 31.07.2006 within a period of 2 weeks. Thereafter, the respondents issued the Annexure C order dated 19.04.2010 stating that as he did not earn any promotions after he was appointed as SDO Grade-III on 20.05.1971, the Departmental Screening Committee met on 03.05.2000, considered him for grant of Ist and 2nd financial upgradations on completion of 12/24 years of regular service, but he was declared Unfit as he failed to meet the prescribed benchmark for the same. Subsequently, he was charge-sheeted under Rule 14 of the CCS (CCA) Rules, 1965 but he was exonerated vide its order dated 01.05.2009. Thereafter, he was promoted to the post of SDO-II in the scale of Rs.5500-175-9000 w.e.f. 20.10.2003, i.e., the date from which his immediate junior was promoted. Further, according to the Annexure D letter dated 20.05.2010, a review DPC was held on 04.05.2010 to review the proceedings of DPC held on 31.08.2007 for promotion to the post of SDO Grade-I and on the basis of its recommendations, he was promoted as SDO-I with effect from 31.08.2007. The Departmental Screening Committee again met on 17.05.2010 and on its recommendations, he was granted Ist/2nd ACP with effect from 01.10.2003 in the scales of Rs.5000-8000 and Rs.5500-9000 respectively.
5. According to the Applicant, the Respondents did not give any reasons for not considering him for grant of the Ist and 2nd ACP benefits with effect from 09.08.1999 and the 3rd ACP from the due date. He has, therefore, made a representation dated 28.06.2010 stating that his juniors Sh. S.D. Raj, Shri D.C. Joshi and others were granted ACP benefits in the scale of Rs.5500-9000 with effect from 09.08.1999. He has, therefore, stated that he also should have been granted ACPs from the due date, i.e., 09.08.1999 as he was already exonerated from the charges levelled against him. He has also stated that he was already in the scale of Rs.5000-8000 and, therefore, his Ist ACP should have been in the scale of Rs.5500-9000 and the 2nd ACP in the scale of Rs.6500-10500. Since no action was taken on his aforesaid representation he reminded the Respondents on 20.09.2011 and 05.02.2011. His contention was that when his juniors have been granted the ACP benefits, neither his case was in Sealed Cover nor his below benchmark ACRs have been communicated to him. Therefore, he was also entitled to get the Ist ACP in the scale of Rs.5500-9000 w.e.f. 09.08.1999. He has also pointed out that since he retired from service only on 30.06.2009 he was also entitled for the 3rd MACP from the due date as has been granted to his juniors.
6. The learned counsel for the applicant has also submitted that if the reason for not granting him ACP benefits with effect from 09.08.1999 was due to the below benchmark ACRs for the relevant years, the same is untenable. He has further submitted that if the ACRs were below the benchmark, unless they were communicated to him, they could not have been considered by the Screening Committee to reject his case. In this regard he has relied upon the judgment of the Apex Court in the case of Abhijit Ghosh Dastidar Vs. Union of India and Others 2009 (16) SCC 146 wherein it has been held as under:-
8. 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 to 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.
9. Learned Counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of refixation of his pension and other retrial benefits as per rules.
7. He has also relied upon the judgment of the Delhi High Court in Writ Petition (C) No.5042/2002 Union of India and Another Vs. V.S. Arora and Others with other connected cases decided on 31.05.2012. The issue considered by the Honble High Court was with regard to the below benchmark ACRs which were not communicated to the employees. The question considered what DPC should do with regard to those below benchmark uncommunicated ACRs? Should it ignore those ACRs or they should be communicated to the concerned employees even at that stage and they should be given an opportunity to move representations against the same and after the representations are disposed of, the DPC should be re-convened to consider the case of the employees for promotion? Relying upon the judgment of the Apex Court in Abhijit Ghosh Dastidars case (supra), the High Court held that uncommunicated ACRs ought to be considered but they are to be dealt with in accordance with the Instructions contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices. In other words, where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered. If this is also not possible, all the available CRs should be taken into account. The relevant part of the said judgment is as under:-
13. Analyzing the above extracted portion from the said decision in Abhijit Ghosh Dastidar (supra), we find that the Supreme Court had affirmed the decision in Dev Dutt (supra), when it observed that the same view has been reiterated in the above referred decision relied upon by the appellant. The above referred decision related to Dev Dutt (supra). The principle that was culled out by Abhijit Ghosh Dastidar (supra) from the decision in Dev Dutt (supra) was that non-communication of an ACR would be arbitrary and would be violative of Article 14 of the Constitution. The reasons for this were that the non-communication of an entry of an ACR of a public servant has civil consequences because it could affect his chances for promotion or to receive any other benefits.
14. However, the Supreme Court in Abhijit Ghosh Dastidar (supra) went further and observed categorically that, therefore, the entries good, if at all granted to the appellant, ought not to have been taken into consideration for being considered for promotion to the higher grade. What this meant was that the below benchmark ACRs, which had not been communicated to an employee, ought not to be taken into consideration for the purposes of considering the promotion of that employee to a higher grade. We must also distinguish between the stage when ACRs are written and the stage when they are considered by the DPC. What Dev Dutt (supra) and, indeed, Abhijit Ghosh Dastidar (supra) hold in unison is that the ACRs must be communicated to the concerned employee/officer soon after it is written. Beucase, its non-communication is contrary to the provisions of article 14 of the Constitution. But, this is at the stage when the ACRs are recorded or shortly thereafter. The objective of communicating the ACRs is two-fold. In the first place, as an element of natural justice, the officer concerned gets an opportunity of representing against the ACR before it is too late. Secondly, it also informs and warns the officer concerned that his performance is not upto the mark so that he may improve himself in the next year. However, at the stage of the DPC, the ACRs already stand crystallized and their communication then may not serve any fruitful purpose apart from informing the concerned employee/officer and, perhaps, enabling him to represent against it. But, the second aspect of improvement is lost. Consequently, at the stage of the DPC meeting the practical approach would be to not consider the uncommunicated ACRs as held in Abhijit Ghosh Dastidar (supra).
15. It is further to be noted that the directions given by the Supreme Court in the subsequent paragraphs, that is, in paragraph 5 of the said decision were in respect of the particular case before the Supreme Court and the Supreme Court had merely directed that as the appellant therein had retired from service, he would not be entitled to any pay or allowance for the period for which he had not worked in the Higher Administrative Grade. However, it had directed that his promotion would be retrospective with effect from 28.08.2000 and that should be considered for the benefit of re-fixation of his pension and retiral benefits and other benefits as per rules. We are not going by the specific directions given by the Supreme Court in the facts of that case, but by the general principles of law declared by the Supreme Court in the earlier portion of the said decision which is set out in paragraph 4 of the same. The Supreme Court did two things. First of all, it affirmed the view taken by Dev Dutt (supra) to the extent that non-communication of an ACR would be arbitrary and would be violative of Article 14 of the Constitution. Secondly, it concluded that such entries, which are not communicated, should not be taken into consideration for being considered for promotion to the higher grade. Thus, while Dev Dutt (supra) had been affirmed by the Supreme Court in Abhijit Ghosh Dastidar (supra) on the first aspect, as regards what has to be done with a noncommunicatedbelow benchmark ACR, the Supreme Court in Abhijit Ghosh Dastidar (supra) took the view that such an ACR ought not to be considered.
16. We, then, have the decision of the Supreme Court in the case of Union of India v. R.K. Anand: Civil Appeal No. 7061/2002 decided on 27.11.2008. Although this decision of the Supreme Court is subsequent to the decision in Abhijit Ghosh Dastidar (supra), it refers only to the decision in Dev Dutt (supra). Apparently, the decision in Abhijit Ghosh Dastidar (supra) had not been pointed out by the counsel appearing in that matter. Anyhow, all that R. K. Anand (supra) decides is that it follows the decision in Dev Dutt (supra).
17. Then comes the decision of the Supreme Court in the case of J. S. Garg (supra). The Supreme Court, in this case, held that in view of the decision in the case of Dev Dutt (supra), which had been affirmed by a Three-Judge Bench in the case of Abhijit Ghosh Dastidar (supra), the appeal was liable to be dismissed. All that this decision shows is that the line of decisions starting from Dev Dutt (supra) and ending with Abhijit Ghosh Dastidar (supra) was being followed by the Supreme Court.
18. However, in A.K. Goel (supra), the following order was passed:-
In view of the apparent conflict between the decisions of this Court in Dev Dutt Vs. Union of India & Ors. 2008 (8) SCC 725 on the one hand and Satya Narain Shukla Vs. Union of India 2006 (9) SCC 69 and K. M. Mishra Vs. Central Bank of India and Others 2008 (9) SCC 120, these appeals are referred to a Larger Bench. Let the matter be placed before the Honble The Chief Justice of India for this purpose.
19. A similar reference was made in Uttam Chand Nahta (supra) on 29.11.2010. The very same Bench, which made the reference in Uttam Chand Nahta (supra), on the same day, also decided the case in Ranjana Kale (supra), where the Supreme Court passed the following order:-
It is not in dispute that the issue raised in this special Leave petition is directly covered by the decision of this Court in Abhijit Ghosh Dastidar vs. Union of India & Ors. reported in (2009) 16 SCC 146. Following the same, the special leave petition is dismissed.
20. We then have the case of Sunil Mathur (supra), wherein the learned Additional Solicitor General who appeared for the Union of India stated that in view of the judgment of the Supreme Court in Abhijit Ghosh Dastidar (supra), the petitioners (Union of India and Others) be permitted to withdraw the Special Leave Petition. Consequently, the Supreme Court granted the permission and dismissed the Special Leave Petition as withdrawn. While doing so, it also directed the petitioners to comply with the orders of the Central Administrative Tribunal within a period of four months from that date. Therefore, considering the circumstance, as indicated in the Sunil Mathur (supra), we are in agreement with the learned counsel for the respondents that it was even the understanding of the Union of India that the decision in Abhijit Ghosh Dastidar (supra) was the determinative and conclusive ruling holding the field.
21. Finally, we come to the case of N. K. Bhola (supra). The Special Leave Petition in N. K. Bhola (supra) came up for hearing on 03.12.2010. On that date, in view of the order dated 29.09.2010 passed in SLP(C) No. 29515/2010 [Uttam Chand Nahta (supra)], whereby the matter was referred to a Larger Bench, the Supreme Court issued notice. Thereafter, the respondents in N. K. Bhola (supra), filed an IA being IA 1/2011 in that matter requesting the Supreme Court to modify its order dated 03.12.2010 and to post the matter for hearing in the interest of justice. In the said application, the following averments were made:-
2. That in SLP(C) No. 29515 of 2010 while passing the order dated 29.11.10, this Honble Court had referred to another order of two judges Bench dated 29th March 2010 to the following effect. In view of the apparent conflict between the decisions of this Court in Dev Dutt Vs. Union of India & Ors. 2008 (8) SCC 725 on the one hand and Satya Narain Shukla Vs. Union of India 2006 (9) SCC 69 and K. M. Mishra Vs. Central Bank of India and Others 2008 (9) SCC 120, these appeals are referred to a Larger Bench. Let the matter be placed before the Honble The Chief Justice of India for this purpose. It is also brought to our notice the decision of three judges Bench reported in 2009(16) SCC 146. In view of the fact that the similar issue/ matter has been referred to Larger Bench, we feel that this issue is also be considered by the Larger Bench. Accordingly, we order notice and post the matter alongwith Civil Appeal of 2010 and SLP(C) No. 15770 of 2009 etc. Both the parties are directed to maintain status quo prevailing as on date until further orders. Counsel of both the parties are permitted to raise all points before the Larger Bench. The True copy of order dated 29th November 2010 and the true copy of order dated 03.12.2010 of this Court are annexed herewith as Annexure R-1 and Annexure R-2 respectively.
3. The respondent No. 1 respectfully submit that though the case of Dastidar 2009 (16) SCC 146 was brought to the notice of the reference Bench but the court was not apprised that the case of Dev Dutt Vs. UOI & Ors., 2008 (8) SCC 725 was followed in three Judge Bench decision reported in Abhijit Ghosh Dastidar Vs. UOI 2009 (16) SCC 146.
4. As the controversy has already been laid to rest by a Larger Bench in Abhijit Ghosh Dastidar case, there is no need for consideration of the same issue by the Larger Bench and there is no conflict of judgments of this Honble Court.
22. Thereafter, on 21.02.2012, when the said IA No. 1/2011 came up for hearing, the Supreme Court issued notice thereon. The learned counsel for the appellant/non-applicant waived service of notice in the application and prayed for time to seek instructions on the question as to whether or not the issue raised in the appeal before the Supreme Court was concluded by a Three-Judge Bench decision of the Supreme Court in Abhijit Ghosh Dastidar (supra). On 16.03.2012, when the matter was again placed before the Supreme Court, it allowed IA No. 1/2011. The main appeal was also taken up for consideration and the Supreme Court dismissed the appeal in the light of the order dated 24.01.2012 passed in SLP(C) No. 7623/2011 [i.e. (Sunil Mathur (supra)].
23. It is, therefore, clear from the aforesaid sequence of events that the Supreme Court and, particularly so, in N. K. Bhola (supra), accepted the contention that the issue stands settled by Abhijit Ghosh Dastidar (supra), notwithstanding the fact that a reference had been made to a Larger Bench in the case of A. K. Goel (supra) and Uttam Chand Nahta (supra). We are also in agreement with the contention raised by the learned counsel for the respondents that the decisions of Division Benches of this Court in K. M. Dixit (supra) and WP(C) No. 8841/2004 and other connected matters, which had been referred to by the learned counsel for the petitioners, would lose significance in view of the clear decisions of the Supreme Court, particularly in the case of N. K. Bhola (supra). More so, in view of the specific averments made in the said IA No. 1/2011 therein which was allowed by the Supreme Court.
24. Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, OM.No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above.
26. In view of the foregoing discussion, the writ petitions are dismissed. There shall be no order as to costs. The impugned orders of the Tribunal stand modified to the extent indicated above. The compliance time is extended by a further period of 3 months from today.
8. Respondents have filed their reply. They have reiterated their position that the Applicant was considered for ACP only in the year 2000 but he was found unfit as he did not fulfil the criteria of required benchmark. Subsequently, his case could not be considered by the Screening Committee as he was facing departmental proceedings. However, when he was exonerated from the charges from 19.04.2010, his case was considered by a review DPC held on 04.05.2010 to review the proceedings of the DPC held on 31.08.2007 for promotion to the post of SDO Grade-I in the pay scale of Rs.5500-175-9000. The recommendations of the DPC having been accepted by the competent authority, he was promoted as SDO-I in the pay scale of Rs.5500-175-9000 with effect from 31.08.2007. Further, meeting of the Departmental Screening Committee was held on 17.05.2010 to consider the Applicant for grant of Ist and 2nd financial upgradation on completion of 12/24 years of regular service and the committee found him Fit for grant of the same with effect from 01.01.2003. The competent authority has accepted the said recommendations and he was accordingly granted the 1st and 2nd ACP with effect from 01.01.2003 in the scale of Rs.5000-150-8000 and Rs.5500-175-9000 respectively.
9. We have heard the learned counsel for the Applicant, Shri Mahesh Shrivastava and the learned counsel for the Respondents, Shri M.K. Bhardwaj. We have also perused the entire documents available on record. It is an undisputed fact that the Applicant was entitled for grant of the 1st and 2nd ACP benefits with effect from 09.08.1999 but they were granted to him only w.e.f. 01.10.2003. Though there were other reasons for not granting him the Ist and 2nd ACP benefits from the due date, i.e. 9.8.1999, the only surviving reason was that he did not have the ACRs of the required benchmark for the said purpose. Admittedly, those ACRs have never been communicated to the Applicant. Therefore, undoubtedly, the decision of the Apex Court in Abhijit Ghosh Dastidars case (supra) would apply in the case of the Applicant.
10. We, therefore, dispose of this OA and with direction to the respondents to follow the judgment of the Honble High Court of Delhi in Union of India and Another with connected cases Vs. V.S. Arora and Others (supra) in this case also. In other words, the Respondents shall hold a Review Meeting of the Screening Committee ignoring the uncommunicated below benchmark ACRs of the Applicant which have been considered by it in its meeting held on 17.05.2010. Instead it shall consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered. If this is also not possible, all the available CRs should be taken into account. Thereafter, if the Applicant is found fit, he shall be granted the 1st and 2nd ACP benefits with effect from 09.08.1999 considering the fact that he was working as SDO-III in the scale of Rs.5000-8000 as admitted by the Respondents themselves. We further direct the respondents that they shall give all the consequential benefits including arrears of pay and allowances to the Applicant till his date of retirement and revision in pensionary benefits thereafter. It goes without saying that the Applicant will also be entitled for consideration for the benefit of 3rd ACP under the Modified Assured Career Progression Scheme which came into effect from 19.05.2009 as he has retired from service only on 30.06.2009. We also direct the respondents that they shall comply with the above directions within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh