Central Administrative Tribunal - Delhi
Shri Shiv Swarup Sharma vs Union Of India on 3 January, 2012
Central Administrative Tribunal Principal Bench OA No.2785/2003 MA No.2554/2011 New Delhi, this the 3rd day of January, 2012 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Shiv Swarup Sharma, Addl. Commissioner, O/o Competent Authority, SAFE MAF and NDPSA, Loknayak Bhawan, New Delhi-110 003. Applicants (By Advocate : Shri Arun Bhardwaj) Versus 1. Union of India, Through The Secretary, Ministry of Finance, South Block, New Delhi. 2. The Chairman, Central Board of Excise and Customs, North Block, New Delhi-1. 3. Member (P&V), Central Board of Excise and Customs, North Block, New Delhi-1. 4. Union Public Service Commission, Through Secretary, Dholpur House, Shahjahan Road, New Delhi. 5. Shri K. Madhusudanan Nair 6. Ms. Meenu Gopala Krishnan 7. Mr. Sanjeev Bihari 8. Mr. S.K. Sinha 9. Mr. K. Anantha Padmanabhan 10. Mr. Rakesh MIshra 11. Mr. G.S. Sarna 12. Mr. BB Prasad 13. I.P. Lal 14. Deepak Shetty 15. A. Vijay Anand 16. C. Rajan 17. Kumari Subramani Kameshwari 18. A.K. Pawar 19. Rajeeva Kumar 20. Sunil Uke 21. Nirmal Singh 22. S.N. Balakrishnan 23. Kumari Shashi Minz 24. E. Eva M. Hynniewta 25. R. Shakuntala 26. Ram Prakash Raheja 27. Bhushan Kumar Bansal 28. Krishan Kumar Sharma 29. Jayant Mishra 30. Mahendra Singh 31. Shashank Shekhar Sharma 32. Dr. Naba Kishore Bhujbal 33. Baldev Kumar Juneja 34. Sanjeev Sachdeva 35. Bipin Kumar Sinha 36. Inderjeet Das Gupta 37. Raj Kumar Singh 38. Ramesh Kumar Sharma 39. G. SreeKumar 40. H.K. Chaturvedi 41. T.S. Sundaram 42. Chandra Bhan 43. Praveen Jain 44. Prabhat Kumar 45. Ashok Kumar Gupta 46. S. Ramesh 47. VTK Nayanar 48. Ramesh Kumar Singla 49. Manmohan Singh Baghi 50. S.X. Jayawasan 51. MCR Shahstri 52. Prashant Kumar Mohanti 53. Rajesh Kumar Mahajan 54. A.K. Roy 55. S.S. Lenca 56. Sushanta K. Panda 57. Vinay Chabra 58. Vinod Kumar Goel, 59. Devdas Rishi 60. H.K. Mittal 61. Ms. Amita Suri 62. Ravi Kumar Pandey 63. S.C. Varshney 64. Rakesh Kumar Sharma 65. Arvind Singh 66. K. Venkata Raman (Respondent Nos.5-66 to be served through Chairman, Central Board of Excise and Customs North, Block, New Delhi-110001. ( By Advocates : Shri R.V. Sinha for Respondents 1to3 and Mrs. B. Rana for Respondent - UPSC) : ORDER :
Dr. Ramesh Chandra Panda, Member (A) Pursuant to the restoration of this Tribunal in OA No.2785/2003 for fresh adjudication by the High Court of Delhi in WP(C) No.12899/2005 passed on 26.7.2011, we have heard the parties on 29.11.2011 where Shri Arun Bhardwaj,learned counsel represented the applicant and Shri R.V. Sinha, learned Senior Central Government counsel represented respondent Nos.1to3; and Mrs. Bindra Rana, learned counsel appeared on behalf of the Union Public Service Commission (UPSC).
2. In order to consider the issues for determination, it is pertinent to reproduce below the relevant part of the High Court judgment :-
4. Shiv Swarup Sharma is an officer of the Indian Custom and Central Excise Group A? Service, which service he entered as a direct recruit.
5. In May 1991 he was promoted as a Deputy Commissioner, a post which has been re-designated as Joint Commissioner. He thought that the promotion was pursuant to a regular DPC. The department took the stand that it was an ad-hoc promotion and not a regular promotion.
6. A regular DPC met in the year 2002 wherein he was declared unfit for promotion and the result was that persons junior to him were promoted as Joint Commissioner on regular basis.
7. He filed a representation in which he urged 2 points. Firstly, that he had been promoted in the year 1991 pursuant to a regular DPC and thus the question of his re- promotion could not be considered. Secondly, he questioned the DPC which met in March 2002 and considered his service records which were adverse, as pleaded by him, and not communicated to him.
8. The representation was rejected on 4.11.2003 and by the time Shiv Swarup Sharma filed OA 2785/2003 before the Tribunal, further promotion was effected to the post of Commissioner.
9. In the Original Application, Shiv Swarup Sharma stated that the stand of the department of his promotion in the year 1991 being ad-hoc was not correct. Alternatively, he questioned the DPC which met in March 2002, assessing his suitability with reference to his adverse service record, which statedly was not communicated to him. So alleging, he pleaded that he would be entitled to be treated as promoted as Joint Commissioner w.e.f. the date he was superseded and thus would be entitled to be promoted as a Commissioner.
10. Making aforesaid pleadings, albeit inchoately, prayer made was as under:-
"I. Quash and set aside the impugned order dated 4.11.2003, vide which the representation of the applicant has been illegally rejected. Direct the respondents to hold that the DPC of 1991 was a regular DPC.
II. Direct the respondents consequently to consider the applicant for promotion to the post of Commissioner on the basis of records after 1991, w.e.f. the date his immediate junior was promoted and with all other consequential benefits.
III. Any other relief, which this Hon?ble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant.
IV. Cost of the proceedings be awarded in favour of the applicant and against the respondents."
11. Relevant would it be to note that the prayer clause is equally inartistically worded.
12. After praying that the rejection order dated 14.11.2003 be quashed, it ought to have been prayed that a Review DPC be directed to be held, at which DPC the record which was adverse to him and which was considered by the DPC which met in March 2002, should be ignored. It further had to be prayed that if at the Review DPC he was held fit to be promoted, directions should be issued that he should be so promoted with all consequential benefits and thereafter it ought to have been prayed that one of the consequential benefits would be a direction to promote the petitioner to the post of Commissioner with effect from the date persons junior to him were promoted.
13. The result of the inartistically drafted pleadings and the prayer, is that the Tribunal, after noting the relevant facts and opining that petitioner?s promotion in the year 1991 was ad-hoc and that the DPC which met in March 2002 was the first DPC which met, non suited the petitioner by returning a finding in para 13 of the impugned order which reads as under:-
13. A fatal law that occurs is that though the applicant assails the order and claims the relief that he should be promoted as Commissioner in his Department from the date his juniors were promoted but he does not challenge the order that had earlier been passed ignoring him from promotion to the post of Joint Commissioner which was earlier known as Deputy Commissioner in the Department. This is a fatal flaw. The post of the Joint Commissioner is a feeder post to the post of Commissioner. In the absence of challenge to that, indeed the applicant cannot succeed because necessarily he must get himself promoted as Joint Commissioner in the first instance."
14. It is apparent that since the Tribunal has held that the petitioner had not questioned the promotion to the post of Joint Commissioner, he could not have questioned the promotion to the post of Commissioner. The reason is: if the petitioner misses the bus at point A and qua his missing the bus raises no grievance, he has to trail behind in the journey thereafter and cannot question his missing the bus at point B.
15. But, as noted hereinabove, we find that the petitioner has questioned his supersession for the post of Joint Commissioner and in respect whereof we find that Grounds B and F have been specifically averred after the narration of facts in the Original Application. That apart, when the petitioner prayed in the relief clause that the impugned order dated 4.11.2003 be set aside, it was but natural that he was questioning his supersession to the post of Joint Commissioner.
16. Meaningfully read, on the standards of pleadings at a mufasil level, which we require as the standard to be adopted to give meaning to a pleadings, we find that the petitioner has challenged his supersession to the post of Joint Commissioner. Accordingly, finding that the Tribunal has not dealt with the challenge raised by the petitioner to his being superseded as a Joint Commissioner, we dispose of the writ petition setting aside the impugned order dated 22.11.2004.
17. OA No.2785/2007 is restored for adjudication by the Tribunal.
2. As major part of the facts and issues have been discussed in the above order, it is required to recapture the minimum pertinent facts which may be relevant for fresh adjudication. As a sequel to the interim directions of Honble Supreme Court on 13.8.1990 in SLP No.4532-33/1978, the UPSC conducted DPC for 18 days from 29.10.1990 upto 29.11.1990 to fill 157 vacant posts (out of which 57 were earmarked for promotees from Group B) on ad hoc basis for the vacancy years 1986, 1987, 1988, 1989 and 1990-91. The DPC recommended the penals for those years. The applicant, who was considered for the year 1989 and 1990-91, was recommended for the year 1990-91 but his name was put in the sealed cover as disciplinary proceeding was pending against him. Admittedly, his sealed cover was subsequently, opened and he was promoted to the Joint Commissioner grade on adhoc basis. The ad hoc promotion was stated to be subject to review after availability of an integrated seniority list in the grade of Assistant Commissioner of Customs and Central Excise. Subsequent to the judgment of Honble Apex Court on 22.11.1996 in the aforesaid SLP, an integrated seniority list was released and DPC meeting was held by the UPSC in March, 2002 for filling 192 vacancies in the grade of Joint Commissioner of Customs & Central Excise on regular basis for the years 1986 to 1991-92. The applicant in the present case was considered by the said DPC for two years (1990-91 and 1991-92). He was at Sl. No.28 of the eligibility list for the year 1990-91 and on the basis of assessment of his ACRs for five years (1985, 1986, 1987, 1988 and 1989-90) and was assessed as Unfit. He was considered by the DPC at Sl. No.10 of the eligibility list for the vacancy year 1991-1992 and on the basis of assessment of his ACRs for five years (1986, 1987, 1988,1989-90 and 1990-91) he was again assessed by the DPC as Unfit. As such, the applicant was not recommended for promotion by the DPC for any of the above two years. However, the applicant was considered by the DPC for the panel year 1992-93 and was promoted on regular basis as the Joint Commissioner vide Notification dated 17.10.2003. Next higher post for promotion is Commissioner of Customs and Central Excise. It is noted that when the DPC met in August, 2002, the applicant was not considered for promotion to the post of Commissioner of Customs and Central Excise as he was not holding the feeder post of Joint Commissioner on regular basis. Thus the present OA having been filed by the applicant in the year 2003, we have to consider the applicants two claims viz (i) his prayer to be promoted as Joint Commissioner w.e.f. 1990-91 on regular basis and (ii) his claim to be considered for promotion to the Commissioner grade with effect from the date his juniors were promoted. The fate of his claim (ii) is directly dependent on the claim for item (i).
3. Referring to the long background of the case, Shri Arun Bhardwaj, learned counsel for the applicant would contend that ACRs used by the DPC for ad hoc promotion were the same ACRs used for applicants regular promotion. He was promoted as Joint Commissioner of Customs and Central Excise on ad hoc basis for the year 1990-91 but for the regular promotion he was declared Unfit not only for the year 1990-91 but also for the year 1991-92. He could get his promotion to the rank of Joint Commissioner only for the year 1992-93. This has resulted him double disadvantage in the sense that he lost two years of his seniority as Joint Commissioner of Customs and Central Excise but also getting his promotion for the year 2003 he was not considered for the post of Commissioner of Customs and Central Excise, as he was not working on regular basis in the Joint Commissioner post. His further contention is that the respondents have applied DOP&T OM dated 08.02.2002 for the regular panels of 1990-91 and 1991-92 which has ultimately affected the applicants claim for promotion to the post of Joint Commissioner. His contention is that the OM itself having been issued in the year 2002 and the panel being prepared for the year 1990-91 and 1991-92, the OM dated 08.02.2002 was not existent then and he questioned how the yardstick fixed in the said OM would be legally sustainable? He, therefore, submits that the applicants case would not only be considered for regular promotion to the rank of Joint Commissioner for the year 1990-91 but also his case should be considered for the post of Commissioner of Customs and Central Excise and promoted w.e.f. the date his juniors were promoted.
4. Mrs. Bindra Rana, learned counsel representing the UPSC highlighted the background of the case and more specifically the non-availability of integrated seniority list of Assistant Commissioner of Customs and Central Excise leading to adhoc promotion in the year 1991 and consequent to the issue of seniority list, the DPc for regular promotion was held in the year 2002. The applicant was considered for two years (1990-91 and 1991-92) and was declared as Unfit for both the years, as he did not achieve required bench mark of Very Good. It is stated that the DPC used the Confidential Rolls as the basic inputs on the basis of which assessment was made. The DPC assessed the suitability of the candidates 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. Mrs. Rana submits that the DPC instructions do not contain any provision for adopting the assessment/gradings assigned to the officers by any DPCs held earlier for ad hoc promotion. She referred to catena of judgments of the Honble Supreme Court of India holding that it was not within the purview of the Tribunal to sit in judgment over the assessment of the DPC/Selection Committee save in the rarest of rare cases where findings of the DPC/Selection Committee may be tainted with malice. The said decisions are U.P.S.C. Versus H.L. Dev & Ors. [AIR 1988 SC 1069], S.L. Soni Versus State of M.P. [1995 (3) Scale 603], Nutan Arvind Versus Union of India [(1996) 2 SCC 488], Anil Katiyar Versus Union of India & Ors. [1997 (1) SCC 280] and Union of India Versus S.K. Goel [JT 2007 (3) SC 361]. She also laid her reliance on the judgment dated 3.12.2010 in WP(C) No.1762/2008 of Honble High Court of Delhi in Union of India Versus P.R. Chandrasekharan. It is further submitted that the DPC meeting held by the UPSC followed the relevant rules/instructions and on the basis of the information/documents furnished by the Department including the ACRs, the applicant was considered by the DPC for promotion to the grade of Joint Commissioner of Customs & Central Excise, but as he failed to attain the prescribed bench mark, i.e. Very Good, and was assessed as Unfit and not recommended for promotion. There is no infirmity in the proceedings of the DPC in this matter. As regards the DPC held by the UPSC for promotion to the grade of Commissioner of Customs & Central Excise, since the applicant was not holding the feeder grade post of Joint Commissioner of Customs & Central Excise on regular basis at the time of the DPC, he was not considered by the DPC held in August, 2002. She, therefore, argued to dismiss the OA.
5. Shri R.V. Sinha, appearing on behalf of the respondents other than UPSC would submit that UPSC followed the prescribed norms while considering the applicants case for promotion to the rank of Joint Commissioner on regular basis and found him Unfit for two years i.e 1990-91 and 1991-92. He further submits that the DPC constituted for consideration of filling up of vacancies for the panel year 1992-93, the applicant was considered and found fit for promotion on regular basis and the same was done vide Notification dated 17.10.2003. His contention is that for promotion to the post of Commissioner of Customs and Central Excise, since the applicant has been found suitable for the panel year 1992-93 in the grade of Joint Commissioner that too by the DPC held in 2003, his case would be considered for further promotion in accordance with the relevant rules and instructions. He, therefore, would urge that action taken by the respondents on the basis of the advice of the UPSC is legally sustainable, and he urges that the OA should be dismissed.
6. Having heard the contentions of the parties, with the assistance of their counsel we carefully examined the pleadings. On our directions, the UPSC placed before us the two files which we have gone through and examined the ACR assessment done for the applicant by the DPC for ad hoc and regular promotion. Those files are following :-
1. F1/15(39)/90 A43/AP2 in the subject of DPC Promotion to t he grade of Dy. Commissioner of Customs and Central Excise Department of Revenue for vacancies of 1986, 1987, 1988, 1989 and 1990.
2. F1/15(34)2000 AP2 on the subject of DPC. Deputy Commissioner of Customs and Central Excise (Now called Jt. Commissioner) [Both Note Sheet and Correspondence part of the file.]
7. As highlighted within the principal issues for our consideration are two viz (i) whether his promotion to the Joint Commissioner grade can be ante-dated to the date when he was promoted on ad hoc basis? (ii) whether the respondents can be directed to consider the promotion of the applicant to Commissioner grade with effect from the date when his juniors have been promoted. We may dwell on the 1st issue now . Before we go into the intricate issues of his ACRs, it is noted that the applicants name was put in sealed cover for promotion to the grade of Joint Commissioner for the panel year 1989 and 1990-91 as charges were pending against him. However, after opening of the sealed cover, he was promoted for the year 1990-91 on ad hoc basis. We, therefore, note that when his case was considered for regular promotion to Joint Commissioner grade, he was not having the said impediment of departmental charges. The admitted fact is that bench mark for promotion to Joint Commissioner is Very Good and five years of ACRs are considered preceding the vacancy year. We have very carefully scrutinized the files placed before us, more specifically the ACR Assessment sheets of the candidates used by both DPCs. We may, therefore, tabulate the ACR grading for the years considered by both DPCs for (a) ad hoc and (b) regular promotions. The information is captured in brief in the following table :-
ACRs considered for Adhoc and Regular promotions Ad hoc Basis Regular Basis Year 1989 (Sl. No.101) 1990-91 (Sl. No.101) 1990-91 (Sl. No.28) 1991-92 (Sl. No.10) 1984 Good Not considered Not considered Not considered 1985 Very Good Very Good Very Good Not considered 1986 Good Good Good Good 1987 Very Good Very Good Very Good Very Good 1988 Very Good Very Good Good Good 1989-90 Not considered Good Good Good 1990-91 Not considered Not considered Not considered Very Good Overall Very Good Very Good Unfit Unfit Remarks Sealed Cover Sealed Cover
8. In case of panel for adhoc promotion, the DPC of UPSC found applicant having three Very Good and two Good in both 1989 and 1990-91 vacancy years and was put in sealed cover. It is noted that he has been found fit for both the years. However, he was lateron promoted on ad hoc basis for the year 1990-91. We may examine the DPC considering his ACRs for regular promotion. For the year 1989-90 the applicant was considered at Sl. No.87 but as the panel of 57 for promotion was drawn up and DPC considered the candidates upto Sl. No.69, he did not come within the zone. For the year 1990-91, he was considered at Sl. No.28 and found to be Unfit and his juniors having been found fit were promoted on regular basis. For the year 1990-91, the applicants ACRs on assessment by DPC were rated to have two Very Good and three Good. It is interesting to note that the DPC for ad hoc promotion rated him as Very Good for the year 1988 whereas the DPC for regular promotion rated 1988 ACR as Good. This downgrading has tilted the balance against the applicant for the panel year 1990-91 as majority of years of his ACR was below bench mark of Very Good. For the year 1991-92, he was considered at Sl. No.10, and was found again as Unfit by the DPC. Reasons are same as stated for the panel year 1990-91. He was promoted on regular basis only for the vacancy year 1992-93, that too vide order dated 17.10.2003. The contention raised on behalf of the applicant was that for ad hoc and regular promotions, same year ACRs were considered and how can the DPC grade fit for ad hoc and Unfit for regular. There is logic and rationality in this argument, which we accept. We, therefore, are of the considered view that a Review DPC needs to be convened to consider our above observation to find out whether the applicant makes the bench mark as per the then guidelines for promotion to the Joint Commissioner grade for the year 1990-91 and 1991-92. If he is found fit for promotion, the applicants promotion date needs to be antedated to the date when his juniors were promoted.
9. We may now advert to the Second Issue i.e. consideration of the applicant for promotion to the grade of Commissioner of Customs and Central Excise w.e.f. the date when his juniors were promoted. This issue is directly dependent on the first issue. In respect of the first issue, we have come to the considered conclusion that applicants case needs to be revisited by convening a review DPC for the year 1990-91 and 1991-92. If he is found fit for any of these two panel years, his subsequent promotion to the grade of Commissioner would need urgent consideration by the respondents. Looking to the applicants case from another angle, we notice that vide Notification dated 17.10.2003 his regular promotion to Joint Commissioner grade was granted w.e.f. 1992-93. The belated DPC took place due to non-availability of integrated seniority list of Assistant Commissioner and associated litigations. The applicant cannot be put to disadvantage for the same. Thus, it would be appropriate for the respondents to convene the review DPC taking into account the fact that the applicant got his regular promotion for the year 1992-93 as Joint Commissioner and he having worked as Joint Commissioner though on ad hoc basis but his seniority being fixed to the vacancy year 1992-93, if he would become eligible to be considered for promotion to the Commissioner rank, review DPC must be convened. In case he gets his promotion for the year 1990-91/1991-92, the review DPC for the post of Commissioner of Customs and Central Excise need to be convened accordingly. Therefore, we direct the respondents to convene the said review DPC after the recommendations of the review DPC for promotion to the Joint Commissioner grade on regular basis is received.
10. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that applicants case has merits on both the counts i.e. for his promotion to the post of Joint Commissioner and Commissioner. Therefore, two review DPC as directed in the above paragraphs need to be convened within a period of three months from the date of receipt of the certified copy of this order.
11. In terms of our above orders and directions, the Original Application is allowed to the extent as mentioned above leaving the parties to bear their respective costs.
( Dr. Ramesh Chandra Panda ) ( V.K. Bali )
Member (A) Chairman
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