Central Administrative Tribunal - Delhi
Dr. Rakesh Verma vs Union Of India Through on 22 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL,
PRINCIPAL BENCH
O.A. No. 2009/2012 AND
M.A. No. 1405/2013
Reserved on:25.04.2013
Pronounced on:22:05:2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Dr. Rakesh Verma
S/o Shri M.P. Varma
Aged about 55 years
Professor & Consultant Cardiologist,
Safdarjung Hospital & V.M. Medical College
R/o 15, Wellingdon Crescent,
New Delhi-110011. ..Applicant
By Advocate: Shri G.D. Gupta, Sr. Counsel with
Shri S.K. Gupta.
Versus
Union of India through
1. The Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi.
2. Shri P.K. Pradhan, IAS
Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi.
3. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public & Grievance,
North Block,
New Delhi.
4. The Secretary,
Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi.
5. Chief Vigilance Officer,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi.
6. Dr. Jagdish Prasad
Director General Health Services,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi.
7. Shri R.S. Shukla
Joint Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi. Respondents
By Advocate: Shri A.K. Singh for Respondents No.1 to 3.
Shri Naresh Kaushik for Respondent No.4.
ORDER
By George Paraken, Member (J) The Applicants grievance in this Original Application is that he has been denied his fundamental right for being considered for promotion to the post of Additional Director General of Health Services in Higher Administrative Grade in Central Health Service against clear vacancy for year 2005. In this regard, he challenged the Annexure-A Office Memorandum No.A.28021/4/2011-CHS-V dated 1.5.2012 which reads as under:-
No.A.28021/4/2011-CHS-V
Government of India
Ministry of Health & Family Welfare
(CHS-V Section)
Nirman Bhawan, New Delhi
Dated the Ist May, 2012
OFFICE MEMORANDUN
Subject: Representation of Dr. Rakesh Verma,
Consultant, Cardiology for upgradation of his grading in the ACRs for the period of 2000-01 to 2002-03 and 01.04.2003 to 25.09.2003 reg.
The undersigned is directed to say that in terms of DoP&Ts OM No. 21011/1/2010-Estt(A) dated 13.04.2010, the ACRs of Dr. Rakesh Varma, Consultant (Cardiology) for the years 2000-01 to 2002-03 & 01.04.2003 to 25.09.2003, which are below benchmark for his next promotion, were communicated to him vide this Ministrys Office Memorandum No. A-28012/2/2010-CHS-V dated 15.10.2010 for making representation against the assessment given in his ACRs, if he desires so. In this context, it is informed that the representations dated 11.01.2011 and 16.01.2012 submitted by Dr. Varma have been considered objectively by the Competent Authority. The views/comments of DGHS have also been taken into consideration who had reviewed his ACRs for the period 2000-01 to 2002-03 as the reviewing officer and reported ACR for the period 01.04.2003 to 25.09.2003. Dr.B Chakravorty who had reported the ACRs of Dr. Varma for the period 2000-01 to 2002-03 is no longer in service.
2. The Competent Authority after taking into account the representation of the officer reported upon and the views of the concerned Reporting/Reviewing Officer as also considering the facts and circumstances of the case has decided that the final grading Good given in these ACRs be retained.
3. This issues with the approval of the Competent Authority.
(Amarjit Singh) Under Secretary to the Govt. of India Tel:23061143 To Dr. Rakesh Varma Consultant of Cardiology, Safdarjung Hospital, Ring Road, New Delhi.
2. His other grievance is with regard to OM No.C-13011/02/2010-Vig. dated Nil March, 2012 issued by Director (Vigilance), Department of Health and Family Welfare with regard to the Review DPC in his case for consideration for promotion to HAG grade against the vacancy year 2005-06. According to the said OM the applicant cannot be said to be clear from vigilance angle though he was not under suspension or any disciplinary/criminal proceedings were pending against him. The said OM obtained by him under the Right to Information Act, 2005 is reproduced as under:-
No. C-13011/02/2010-Vig Government of India Ministry of Health & Family Welfare (Vigilance Section) Nirman Bhawan, New Delhi Dated the March, 2012 OFFICE MEMORANDUN Subject: Review DPC in respect of Dr. Rakesh Verma for consideration of his case for promotion of HAG against the vacancy year 2005-2006-reg.
The undersigned is directed to refer to CHS-IV Sections note No.a.32012/01/2008-CHS-IV dated 13th March, 2011, on the subject cited above and to convey the factual position of cases against Dr. Rakesh Verma, HOD, Cardiology, SJ Hospital as under:-
(a) An FIR No.RC 30(A)/2010-DAI dated 13.07.2010 has been registered by CBI against Dr. Rakesh Verma on the alleged charge of acquisition of assets disproportionate to his known sources of income. The case is presently under investigation by CBI.
(b) In the case registered against Dr. Rakesh Verma, as referred to in para (8) above, Dr. Rakesh Verma was also placed under suspension on 20.07.2010. However, his suspension was revoked, during the pendency of investigation by CBI, vide Order dated 06th April, 2011.
(c ) A complaint against Dr. Rakesh Verma received from CVC in 2006, relating to negligence in treatment and purchase of stents at higher rates from unapproved firms, is under examination. Further, another reference has since been received from CBI seeking permission u/s 6(A) of DSPE Act, 1946, for conducting enquiry/investigation against him, on the alleged charge relating to irregularities in purchase of stents during the year 2003-2005.
In view of the above, Dr. Rakesh Verma cannot be said to be clear from Vigilance angle even though he is not strictly covered under any of the three categories, namely, (i) Under Suspension, (ii) Government Servant in respect of whom charge-sheet has been issued and disciplinary proceedings are pending and (iii) Government Servants in respect of whom prosecution for a criminal charge is pending.
Sd/-
(Ravindra Pattar) Director (Vigilance) Deputy Secretary (CHS) (Shri V.P. RAna) Ministry of Health & FW, Nirman Bhawan, New Delhi.
3. He is also aggrieved by the OM No. A-28021/7/2012-CHS-V dated 21.05.2012 communicating the below bench mark gradings in his ACR for the period of 2007-08. The said letter is also reproduced as under:-
No.A.28021/7/2012-CHS-V Government of India Ministry of Health & Family Welfare (CHS Division) Nirman Bhawan, New Delhi Dated the 11th April, 2012/ 21/5/2012 OFFICE MEMORANDUN Subject: Communication of below benchmark ACR in respect of Dr. Rakesh Verma, Consultant, Cardiology, SJ hospital for the period 2007-08 reg.
The undersigned is directed to say that as per the Department of Personnel and Trainings OM No. 21011/1/2010-Estt.A dated 13th April, 2010, the below benchmark gradings of the ACRs are required to be conveyed to the concerned Employee for making representation against these Assessments, if he/she desires. The representation against concerned employee may be considered and a decision may be taken on this.
2. It has been observed that Dr. Rakesh Varma, Consultant, Cardiology, Safdarjung Hospital has been assessed as Good by the Reporting officer in his ACR for the period of 2007-08, which is being treated as below benchmark for the promotion to the post of Addl. DGHS (HAG post). Accordingly the copy of the ACR for the year(s) 2007-08 is enclosed herewith with the request to consider making representation against the above assessment, if you so desire immediately to this Ministry within 15 days from the receipt of the above ACRs.
(Amarjit Singh) Under Secretary to the Govt. of India Tel:23061143 Encl: As above.
To Dr. Rakesh Varma 15, Wellingdon Cresent New Delhi-110011.
4. The Applicant has been working as Specialist Grade-I of the Non-Teaching Specialist Sub-Cadre. During the period from 1.4.2000 while he was working as Senior Cardiologist in Safdarjung Hospital, Respondent No.6, Dr. Jagdish Prasad working as Director General Health Services was his Reviewing Authority of his annual confidential reports. For the period from 1.4.2000 to 31.03.2001 he graded him Outstanding by the Reporting Officer Dr. B. Chakarvarthy but Dr. Jagish Prasad did not agree with it and graded him as Very Good. Similar was the gradings given to him by the said Reporting and Reviewing Officers for the period from 01.04.2001 to 31.03.2002, 01.04.2002 to 31.03.2003. Again, for the period from 01.04.2003 to 25.09.2003 Dr. Jagdish Prasad was his Reporting Officer and in the said capacity he graded him as Very Good. However, according to the Applicant, the Respondents did not send his ACR for the said period to the Reviewing Authority.
5. The allegation of the Applicant against Dr. Jagdish Prasad is that some time during the year 2009-2010, he tampered with, forged and altered the aforesaid ACRs of four years by changing the gradings of Very Good given by he himself as Good which is evident from the perusal of the aforesaid ACRs with naked eyes. Further, according to the Applicant, during the aforesaid period Dr. Jagdish Prasad became Additional Director General of Health Service and was posted in the same place where the ACRs of the doctors of Central Health Services (CHS for short) including his ACRs were kept and he had easy access to them.
6. When the Applicant came to know about the aforesaid tampering of his ACRs, he made his representation dated 11.01.2011/07.03.2011 raising the following objections among others:-
His ACRs up to, and including, year 2006 had been seen and perused by Shri P. K. Hota, then Secretary, Health, UPSC and many other authorities before and they were not below the Bench mark for promotion.
Those ACRs have been shown as downgraded by way of fabrication of late sometime, perhaps after Aug/September, 2010, to show him below the Bench mark so as to oust him from consideration for which promotion he was in Slot 1.
The act of such fabrication and thereby downgrading could not have been just of coincidence. One Dr. Jagdish Prasad was also a contender for promotion to DGHS level and he has acted as a reviewing authority in down-grading his ACRs, first from the level of outstanding as given by his reporting officer to the level of Very Good. Years after their completion, now, the word very has been cut across by a line in all the ACRs to make it read as good only. The intention was very clear that such a person wanted to avoid his being considered for the promotion to DGHS level so that Dr. Jagdish Prasad gets it without their being any other contenders.
All the above ACRs were submitted, reported and reviewed from 6 to 9 years ago and he was not below the bench-mark in the original ACRs, as reported & reviewed, before such fabrication/manipulation.
He himself had the occasion to see all these ACRs, in the original dossier, in the office of then Secretary, Health, Shri P.K. Hota whom I had met after seeking an appointment in regard to my delayed promotion.
Shri P.K. Hota himself reviewed his ACRs for two subsequent years 2004-05 & 2005-06. At that time, he issued the letter of promotion, promoting his from Senior Cardiologist to SAG level. Accordingly he was promoted from 1992 itself to SAG level and therefore, Dr. Jagdish Prasad was no more competent to review his ACRs and further downgrade the same, being of the same rank.
The then DGHS, the highest technical authority, had the occasion to review some of his ACRs, prior to consideration by DPC for SAG grade, as held in June 2007. He had upgraded each and every of the ACRs as available in dossier up to Dec 2006. He could not have left the ACRs at below bench mark level for 2000-01 to 2002-03 & 01.04.2003 to 25.09.2003 unattended.
His statement that the ACRs for the year 2000-01, and up to Sept 2003 have been fabricated of late in recent past was upon my personal knowledge of the facts and the records provided to him under RTI Act, especially the letter dated 21.09.2010 from UPSC to the Secretary, Ministry of Health and Family Welfare, on review DPC amongst other documents, also bears testimony to the above effect.
The afore-said act amounts to committing forgery and tampering and alternation of official records. This call for a through inquiry into the whole episode, in an open atmosphere, without there being any influence of the person, who can be reasonably suspected to be involved in the commission of the above-said offence of interfering with the official documents The ACRs once reported and reviewed cannot be re-opened unless I had represented against the same.
The reopening of the ACRs without any notice to him and clandestinely and that too by the officer who is contender for the same rank and post as he smacks of malafide intentions.
The cutting over the word very on a different ink than the original, the signatures purporting to the authentication of the cutting are different from the original signatures, all signatures on cuttings are same but different from the signatures of the original ACRs. Even the ink used in cutting the adverb very and short signatures purporting to authenticate the cuttings, seems to be different from the ink used in reviewing the original ACRs if seen without the cutting of the adverb very. In grading the correction mark on very good has been altered, subsequently, by a different ink.
He was granted promotion as SAG effective from the year 1992 based upon his ACRs up to 2006 and the order was issued in May 2008. Since, Dr. V.P.S. Punia had filed a writ petition so as to delay constitution of the DPC and thereby create obstruction to my promotion but whole dossier was again prepared by including ACRs up to year 2006 with evaluation of gradings therein and were perused by Ministry of Health, UPSC as well as Appointment Committee of Cabinet. Since, all ACRs up to the year 2006 were graded higher then the bench march, ACC had granted his promotion to SAG grade, which post he joined in May 2008 but the promotion was effective from the year 1992.
In 2008, a proposal with all ACRs upto 2006 was forwarded to UPSC to hold a DPC for promotion to HAG grade. The then Joint Secretary in the Ministry of Health, had evaluated the proposal in detail and finding all ACRs above the Bench mark had forwarded the same to UPSC for consideration for promotion.
UPSC evaluated all dossiers and all ACRs up to the year 2006 and found the same to fit for placement before the DPC, all ACRs were summarized and tabulated. However, UPSC had to send back the dossier, as his case was to be prepared as per the check list for review DPC. Ordinarily speaking, the dossier could have been prepared as per the check list for review DPC. Ordinarily speaking, the dossier could have been present for review DPC in a short span after a month or so.
The then Deputy Secretary raised a frivolous question of calling for my integrity certificate/vigilance clearance, apparently because he could not conceive of any other way to block or delay his promotion. Had all ACRs below the bench mark, then, this would not have happened.
Contrary to the standard procedure and DOPT guidelines, the then Deputy Secretary asked Dr. Jagdish Prasad to give integrity certificate/vigilance clearance. He knew it that Dr. Jagdish Prasad and him, both were contenders for promotion to HAG level & subsequently for DGHS level. When he came to know of this, he protested in writing and pointed out to the Secretary Health of the relevant rules that vigilance clearance was not called for in such a case of as of review DPC. Again, in May/June 2010, a half-baked, incomplete proposal for review DPC was sent to UPSC. As it was incomplete, UPSC was bound to return the same, with their advice to submit the complete dossier.
(xvii)It is a case of alteration and tampering of official records by a person having a vested interest in undermining his chances of promotion to HAG level with or without conspiracy with a set of persons to damage irreparably his chances of promotion ignoring cannons of justice and propriety and violating DOPT rules and guidelines. The action is in fact is a criminal offence.
(ix) He has, therefore, requested the Secretary, Ministry of Health & Family Welfare to:-
Undo the wrong showing the ACRs for the period 2000-2001 to 2002-03 and 1.4.2003 to 25.9.2003below bench mark, done to him and To initiate such steps as may be necessary and called for, in facts and circumstances as stated above to investigate and to ensure that such alteration of records is not attempted to be done in future by anyone.
7. Thereupon, according to him, the then Secretary, Ministry of Health and Family Welfare, vide his notings dated 19.03.2011 in the relevant file, copies enclosed, sought the comments of Dr. Jagdish Prasad on the allegations made against him by the Applicant but he did not offer his comments. Again, vide notings dated 13.09.2011, the office of Respondent No.1 sought the specific comments of Dr. Jagdish Prasad on the issue but again he did not offer his comments. When Dr. Jagdish Prasad repeatedly did not offer his comments, in exercise of power vested in him being competent authority, the then Director General Health Services came to the following conclusions:-
(i) There is a cutting from VG to G in all ACRs at many places.
(ii) All cuttings are signed at some places, but not on every place. However, final grading is signed by Dr. Prasad.
(iii) All signatures are undated.
(iv) In final grading, there is tick mark ( ) at VG which was cut and there is circled and signed entry for G.
(v) File was only once seen by Dr. Prasad (However, this observation is based on only scrutiny of paper attached in noting portion of file). File was received in his office on 09.06.2011 and he signed on 20.06.2011.
(vi) There is a uniform pattern in cutting all ACRs, i.e., cutting tick ( ) mark and circling G.
8. Thereupon the said Director General Health Services, vide Office Memorandum No.A-28021/2/2010-CHS-V dated 18th August, 2011 took the following decision:-
I would give him benefit of doubt and recommend Very Good for all ACRs.
In case, this observation does not meet requirement of Administration, these ACRs can be set aside for DPC purposes.
9. According to the Applicant, when Dr. Jagdish Prasad came to know about the decision of Director General Health Services, he immediately, put the notings on the file on 14.12.2011 as follows:-
It is not justified to upgrade the ACR of 2000-01, 2001-02, 2002-03 and 2003-25.09.2003 and also we cannot keep away these ACRs from DPC.
10. The Applicant further submitted that once a decision was taken by Director General Health Services being the next Higher Authority and the competent authority to take decisions on the ACRs of the Applicant, the said decision ought to have been treated as final. The Applicant has also produced copies of the record of the Respondents obtained under the Right to Information Act, 2005 that the ACRs up to the year 2005 were completed, scrutinized and evaluated by the UPSC for holding regular DPC for the year 2004-05. The Appointments Committee of Cabinet has also approved the departments proposal for promotion of the Applicant along with 16 others to the Super Grade Posts (Floating) as Non-Teaching Specialist Sub-Cadre of CHS in the scale of pay of Rs.18,400-22,400 w.e.f. the date of assumption of charge. In this regard, he has reduced note of the Respondents dated 27.03.2008 which is extracted below:-
This relates to the proposal for promotion to the SAG posts in the Non-Teaching Specialists sub-cadre of CHS for the years 2001-02 because of antedating of promotion of Dr. Rakesh Verma as Spl.Gr.I from 10.02.1994 to 10.02.1991, 2004-05 and 2005-06. Posts for the year 2002-03 and 2003-04 have already been filled. A proposal for filling up these posts was sent to UPSC. A meeting of DPC was held on 26.06.2007. After considering the cases of eligible officers, DPC has recommended a panel of 1 (one) Officer for the year 1991-92 (review DPC in r/o Dr. Rakesh Verma for the year 2001-02), 2 for 2004-05 and 15 for the year 2005-06 for the appointment to the post of Consultant (SAG). DPCs recommendations in respect of Dr. Sumitra Paul and Dr. Jyotsna Pandey have been kept in SEALED COVER in the Vol.I of this file.
2. Accordingly, the proposal for promotion of 20 officers was sent to Department of Personnel & Training for ACCs approval on 13.11.2007.
3. The Appointments Committee of the Cabinet has approved the proposal for promotion of the following 17 officers to the Supertime Grade Posts (Floating) of Non-Teaching Specialist sub-cadre of the CHS in the pay scale of Rs.18,400-22,400/- w.e.f. the date of assumption of charge of the posts:-
Dr. Rakesh Verma Dr. K.C. Agarwal Dr. U.A.C. Rana Dr. R.K. Jain Dr. R.B. Ahuja Dr. B.P. Agarwal Dr. B.T. Kudva Dr.(Smt.) Aruna Batra Dr. Anand Rao Dr. B.P. Das Dr.(Smt.) Gopi Thwani Dr. Gautam Sengupta Dr. D.K. Sharma Dr. M.K. Kulkarni Dr. (Smt.) Pushpa Yadav Dr. (Smt.) Asha Saxema Ahmad Dr. D. Chattopadhyaya
4. In the above list Dr. B.P. Agarwal has taken voluntary retirement. Hence, we may issue promotion order for the 16 officers. Vigilance clearance in r/o the above officers have been obtained. Before issue of Orders, file is submitted for soliciting the kind approval of HFM for promotion of the above 16 officers except Dr. B.P. Agarwal at S.No.6.
11. Again, according to him based on the aforesaid bench mark Very Good and vigilance clearance granted to him on 26.03.2008, vide order dated 15.05.2009 he was appointed to the super time grade of Non-Teaching specialist sub-cadre of the Central Health Service. Thus, according to him all ACRS, including those four ACRs for the years 2000 to 2004 were obviously above bench mark. Otherwise, UPSC and/or Ministry of Health and/or ACC would have certainly pointed out this fact. In this regard, he has referred to the letter dated 08.12.2006 by Shri Ajai Agarwal, then Director (Admn.) which reads as under:-
Subject:- Adverse Remarks in the ACRs in respect of Dr. Rakesh Verma, Sr. Cardiologist and Dr. Jagdish Prasad, Consultant (CTVS), S.J. Hospital.
The ACR Dossier containing ACRs for the periods from 1986 to 2003-04 in respect of Dr. Rakesh Verma, Sr. Cardiologist, Sr. Cardiologist, S.J. Hospital was received from CHS IV Section, MOHFW for taking a decision on the adverse remarks recorded in his ACRs for the years 1999-2000, 26.09.2003 to 31.03.2004 and 2004-05.
The original ACRs for the years 1999-2000 & 26.09.2003 to 31.03.2004 which contains adverse remarks have been submitted to DGHS from the ACR Dossier for necessary action. It may further be informed that these original ACRs for the periods 1999-90 & 26.9.2003 to 31.03.2004, after doing the needful by the DGHS have been placed on the file No. A.31012/2/2006-CHS.V which has been sent to JS(VC) alongwith with other linked files from the O/o DGHS vide their Dy. No. 5648/2006/DGHS, on 08.12.2006.
The Dossier containing ACRs for the periods 1986 to 1989-99, 2000-01 to 2003-04 (up to 25.09.203), in respect of Dr. Rakesh Verma, Sr. Cardiologist, S.J. Hospital is returned herewith.
12. From the above letter, according to the applicant it is emphatically clear and unambiguously and unassailably establishes that these ACRs for 2000-2001, 2001-2002, 2002-2003 and 2003-2004 were graded by Reviewing Officer as Very Good and only subsequently some time after year 2009 tampered, altered, forged to read as Good by cutting the word good by a line. In spite of the aforesaid position, according to him, the Respondents vide the impugned OM No.A-28021/4/2017 CHS-V dated 01.05.2012 conveyed the decision of the Competent Authority to retain the final grading Good given in his ACRs for the year 2000-01 to 2002-03 and 01.04.2003 to 25.09.2003.
13. The Applicant, challenged the aforesaid OM dated 01.05.2012 in this OA on the ground that the relevant ACRs for the years 2000 to 2004 have not simply downgraded but the records pertaining to ACR dossier has been tampered with, stolen & destroyed under a sinister design to remove corresponding corroborative record which could have nailed the crime of tampering ACR and its pages. Further, the Secretary Health, Respondent No.1, has himself observed that those cuttings are ex-post facto. The present Secretary, Health (Respondent No.1) has also observed that all cuttings are in different ink. The competent authority, i.e., the then DGHS has applied his independent mind and decided that all these ACRs be treated as Very Good. In this regard, he has referred to the provisions contained in OM No.21011/1/2010-Estt.A dated 13.04.2010 according to which once the higher authority takes a decision in relation to the ACRs which are not meeting the prescribed benchmark, the said decision shall be the final one. Accordingly, the decision of the then Director General Health Services has attained finality and it could not have bene called in question again.
14. As regards the report of the Director (Vigilance), Department of Health and Family Welfare dated nil, March, 2012 is concerned, the contention of the Applicant is that it was issued with the specific purpose to prejudice the mind of the Members of the Selection Committee as the said OM itself says that the Applicants case is not strictly covered under any of the three categories, namely, (i) Under Suspension, (ii) Government Servant in respect of whom charge-sheet has been issued and disciplinary proceedings are pending and (iii) Government Servants in respect of whom prosecution for a criminal charge is pending. He has reiterated that as on date of vacancy, i.e., year 2005-06, he was not under suspension, he was not facing any departmental enquiry under the relevant service rules or any criminal trial. He has, therefore, submitted that the said impugned OM withholding the vigilance clearance is bad in law and contrary to orders of Honble Supreme Court of India. He has stated further that the Respondent No.6 in collusion with the respondent No.5 is creating hindrance in the way of his promotion to the higher post.
15. As regards the OM No.A-28021/7/2012-CHS-V dated 21.05.2012 communicating the ACRs for year 2007-08 is concerned, the applicant has submitted that the Respondent No.6 could not have been reported it in a fair manner due to his prejudice & bias against him and it is akin to asking & expecting the wolf to protect a piece of meat. He has, therefore, requested to reject the said ACR especially because the office of Respondent No.1 itself observed on the note sheet as under:-
That as regards writing of ACR for year 2007-08, the Reporting Officer at that time was the present DGHS (Dr. Jagdish Prasad). Therefore, we have no option but to sent his ACR for this period to Dr. Jagdish Prasad for necessary action through this ACR may be specially scrutinized by UPSC.
As such the ACR for year 2007-08 as reported by Respondent No.6 Dr. Jagdish Prasad should be expunged.
16. The Applicant has, therefore, sought the following reliefs and interim reliefs in this OA:-
RELIEFS (i) Quash and set aside the impugned orders dated 01.03.2012 (Annexure-A-1), March 2012 (Annexure-A-2) and the action of the respondents to deprive the applicant for promotion to post of HAG (Additional Director General, Health Services).
(ii) To direct the respondents to treat the ACRs of the applicant available as Very Good in terms of the decision of Director General Health Services dated 13.11.2011;
(iii) Direct the respondent No.3 to consider the case of the applicant for promotion to the post of HAG/Addl. Director General Health Services by a Review DPC and in case the applicant found fit, the applicant may be promoted with all benefits including arrears of salary etc. w.e.f. due date with all other consequential benefits;
(iv) Direct the respondent No.1 to order Police action & departmental action against respondent No.6 & co conspirators for tampering with the official records pertaining to the ACRs of the applicant without any authority and further direct the respondent No.1 not to allow respondent No.6 deal with any of the service matters as defined under A.T. Act, 1985 relating to the applicant;
(v) Direct the respondents to quash & set aside below bench mark observations made by respondent 6 Dr. Jagdish Prasad for the year 2007-08 and a certificate be issued in lieu of this.
(vi) Relevant office records of respondents may be called and persued for knowing full truth & malafides done.
(vii) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice.
INTERIM RELIEF Respondent No.3 be directed to withhold DPC for HAG post till a decision is taken by this Honble Tribunal.
Respondent No.1 be directed not to involve Respondent 6 in any service matter pertaining to the applicant.
Respondent No.1 be direct to keep records in a safe custody & obtain report for UPSC.
17. During the pendency of this OA, the applicant has filed MA No. 1045/2013 to challenge yet another order dated 25.02.2011 passed by the respondents stating that his ACRs for the period from 2005-2006 and 2006-2007 are invalid and, therefore, he has to submit his separate-self appraisal for the aforesaid period. Consequently, he has also amended the relief clause as under:-
(i) quash and set aside the impugned orders dated 01.05.2012 (Annexure A-10, March, 2012 (Annexure A-2) and the action of the respondents to deprive the applicant for promotion to the post of HAG (Additional Direction General, Health Services);
(ii) to direct the respondents to treat the ACRs of the applicant available as Very Good in terms of the decision of Director General Health Services dated 13.11.2011;
(iii) Direct the respondents No.3 to consider the case of the applicant for promotion to the post of HAG/Addl. Director General Health Services by a Review DPC and in case the applicant found fit, the applicant may be promoted with all benefits including arrears of salary etc. w.e.f. due date with all other consequential benefits;
(iii)(a) quash and set aside the order dated 25.02.2011;
(iv) direct the respondent no.1 to order Police action & departmental action against respondent no.6 & co-conspirators for tempering with the official records pertaining to the ACRs of the applicant without any authority and further direct the respondent no.1 not to allow respondent no.6 to deal with any of the service matters as defined under A.T. Act, 1985 relating to the applicant;
(v) direct the respondents to quash and set aside below bench mark observations made by respondent no.6 Dr. Jagdish Prasad for year 2007-08 and a certificate be issued in lieu of this.
(vi) Relevant office records of respondents may be called and perused for knowing full truth & malafides done;
(viii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
18. Respondents in their reply have stated that the review DPC held on 26.06.2007 for the post of SAG, the seniority of the applicant was revised with retrospective effect and he was placed in the original panel for the year 1991-92. He is, therefore, being considered for promotion to HAG by a review DPC for the year 2005-06 as his junior in the original panel for the year 1991-92 has already been promoted to HAG against the year 2005-06. The applicant was considered by the review DPC held on 26.06.2007 for considering his promotion to the post of SAG against the vacancy for the year 1991-92 and was promoted to SAG post w.e.f. 15.05.2008. As per DPC guidelines, the assessment of each officer should be made on the basis of evaluation of the Confidential Reports for the preceding five years only in all cases. They have, therefore, submitted that ACRs for the period 1986-87 to 1990-91 only were assessed by the DPC for the vacancy year 1991-92. No ACRs beyond 1990-91 have been assessed by the DPC so far.
19. As regards, the impugned order dated 01.05.2012 is concerned, they have stated that in terms of the DOP&T, OM No.21011/1/2010-Estt.A dated 13.04.2010, they vide OM dated 15.10.2010, communicated the below bench mark ACRs of the applicant pertaining to the period 05.08.2000-31.03.2001, 2001-2002, 2002-03 and 01.04.2003 to 25.09.2003 and requested him to make representation against them, if he desired so. The representations dated 11.01.2011 and 16.01.2012 preferred by the applicant in this regard have been considered objectively by the competent authority and decided to retain the final grading Good given in those ACRs and the said decision was conveyed to him by the aforesaid OM dated 01.05.2012. They have further stated that the final decision on the aforesaid representations of the applicant for upgradation of his ACRs was taken by the Competent Authority; Secretary (Health & Family Welfare) after considering the opinion/views of the respondent No. 6 (Dr. Jagdish Prasad) who was his reporting/reviewing officer. The then DGHS, vide his note dated 13.11.2011, has expressed his views and not the decision on this issue. While expressing his views he inter alia sated that .. he shall not be able to take a decision on upgradation or retention of remarks on ACRs.
20. They have also stated that the CBI has registered FIR No. RC 30(A)/2010-DAI dated 13.07.2010 against the Applicant on the alleged charge of acquisition of assets disproportionate to his known sources of income and it is under investigation. The CBI has also registered another case against the Applicant, vide FIR No. PEDAI-2012-A-0004 dated 23.04.2012, on the alleged charge of irregularities in purchase of Stents and is also under investigation. Thus, though the Applicant for the purpose of promotion, does not fall under any of the three categories viz. (i) Under suspension, (ii) Charge sheet issued and Disciplinary proceedings pending against him and (iii) Prosecution for a criminal charge pending against him, yet in view of the ongoing investigations against him by CBI on serious charges of corruption, he cannot be said to be clear from Vigilance angle. They have further submitted that the applicant has not proved bias & prejudice on the part of respondent No. 6 (Dr. Jagdish Prasad). The said respondent being the then Medical Superintendent of Safdarjung Hospital was his reporting officer for the period 2007-08 and according to him, the change of grading from Very Good to Good was done based on the performance and conduct of the applicant. Further, the corrections made in his ACRs while changing the grading have been duly authenticated by Dr. Jagdish Prasad.
21. They have further submitted that the respondent No.6, Dr. Jagdish Prasad has reported the following information about the applicant:-
(i) The CBI has registered a criminal case No.RC-DAI-2010-A-6030 dated 13.07.2010 under Sections 13(2) read with 13 (1)(e) of Prevention of Corruption Act regarding acquisition of disproportionate assets to the tune of Rs. 2,37,54,542/-. The case is still under investigation.
(ii) Following the registration of the criminal case, Dr. Verma was placed under suspension by the Ministry of Health and Family Welfare vide Order No. C.13011/02/2010-Vig. dated 20.07.2010. The period of his suspension was extended twice.
(iii) The Ethics Committee of the Medical Council of India considered some complaints against Dr. Verma and after hearing the parties and perusing the records and FIR, it noted that Dr. Verma has been accused of serious allegations of violating the faith, reposed in a doctor by hapless patient. He was found to have misused his profession by indulging in various acts and omission which is unbecoming of a medical practitioner. Having regard to seriousness and nature of allegations, the Ethics Committee recommended that medical license of Dr. Rakesh Verma be suspended during the pendency of the criminal case against him. Dr. Verma filed two Writ Petitions Nos. 5355/2011 and 5968/2011 in the High Court of Lucknow Bench challenging the order of the MCI. Both the Writ Petitions were dismissed by the High Court. In pursuance of the decision of the Ethics Committee of the MCI, Dr. Verma has been debarred from attending any clinical work like examining patients, OPD, admitting and treating them in Wards and casualty during pendency of the criminal case against him or until further orders vide Officer Order No. I-849/93-Admn-I dated 16.6.2011 issued by Safdarjang Hospital.
(iv) Dr. Verma was found to be indulging in a criminal act of fabrication and use of a document by misusing the name and authority of the Principal and Medical Superintendent of the Safdarjang Hospital for ulterior motives. It is well known that more than 90% of the indoor patients of the Cardiology Department have to undergo medical procedures involving huge amount of money. At the time of their discharge from hospital, they are given Discharge Slip containing details regarding diagnosis of ailment, treatment offered, medicines prescribed, procedure conducted, material used, names of doctors etc. The Discharge Slip is an essential medico-legal document which is used by patients for various purposes. On the basis of this document, they claim reimbursement from Central/State Government , PSUs, Insurance Agencies etc. and also use it for various other purposes. As per practice, Discharge Slips were being issued by the treating doctors of the Department on the basis of medical records of the patient concerned. However, Dr. Rakesh Verma devised a new Discharge Slip which, inter alia, contained the name and designation of principal and Medical superintendent of the Safdarjang Hospital thereby giving the impression that it was being issued for and on behalf of the Principal and Medical Superintendent of the Hospital with the prior approval. Dr. Verma himself used this fabricated Discharge Slip for more than a year and directed also other two Cardiologist of the Hospital to use the same Discharge Slip. This fact was testified by Dr. Sandep Bansal and Dr. H.S.Isser, the other two specialists in the Department of Cardiology.
(v) Dr. Verma committed serious financial irregularities in procuring material for conducting medical procedures. As per records, medical procedure was carried out on a patient named Shri Mahender Singh on 09.11.2004. The quotation for supply of material was issued on 10.11.2004. The delivery challan No. 0980 for the material supposed to have been used in the procedure also bears the same date of 10.11.2004. The inquiry officer who looked into this case observed as follows:
a delivery challan No. 0980 of the same date i.e. 10.11.2004 as that of quotation is available in the file. Quotation & items have been received on the same date while the actual procedure was done a day before i.e. 09.11.2004.
..the invoice dated 10.11.2004 mentioned that item supplied had been used on 09.11.2004 for patient Mr. Mahender Singh. photocopy of admission & discharge sheet of cardiology which is verified by Dr. Rakesh Verma also mentions the date of carrying out the procedure on the patient on 9.11.2004. In the utilization certificate which also is issued by Dr. Verma which has mentioned the date of surgery/procedure as 9.11.2004 and bill No.545 dated 10.11.2004 .two invoices of the same number & different entries is highly irregular & suggests manipulation of the documents.
Dr. K.K.Thukral, the Vigilance Officer who conducted inquiry into this case further observed on the basis of records/facts that Dr. Verma had been preparing and fabricating documents even after the actual date of procedure when such material was supposed to have been used. These comments indicate that a single invoice had been used for the purpose of creating records and documentation required for the purpose of utilization certificate to different patients to enable them to claim reimbursement of expenditure from their respective departments.
(vi) Smt. Phoola Rani, vide her complaint, had alleged that Dr. Verma had done Cornoary Angiography which was not required. The matter was inquired and draft charge sheets against Dr. Verma were prepared twice and sent to Dte. G.H.S by Safdarjang Hospital vide letters dated 14.02.2007 and 19.01.2009.
(vii) A complaint received from one Shri Rajinder Singh, regarding wrong treatment of his wife Smt. Asha Lata was received and inquired into by Grievance Cell of Sadarjang Hospital and a report was sent to Dte. G.H.S vide letter dated 18.11.2005.
(viii) A complaint was received from Mrs. Beena Maurya in the Dte. G.H.S regarding negligence by Dr. Verma in treatment of her husband Shri R.K.Maurya resulting in his death. The matter was inquired into by Dr. K.S. Reddy, Professor & HOD Cardiology, AIIMS, New Delhi.
(ix) In the year 2008, two patients expired in the unit of Dr. Rakesh Varma. It was alleged that Dr. Varma didnt come to attend the patients despite calls given to him by the junior doctors. This led to unrest among the relative of the patients and they used abusive language and broke window panes of the ward. The matter was also reported to the Dte. G.H.S.
(x) The matter regarding irregularities in Dept. of Cardiology related PUF and Medical Store was taken up by Dr. B.B.Thukral, Consultant & HOD radiology and vigilance officer of Safdarjang Hospital on the direction of the Dte. GHS/MoH&FW. A Circular was issued on 31.01.09 for streamlining the process of procurement of Cath lab procedure.
(xi) A complaint dated 17.4.2008 was received from Shri Devasish Gaur, resident of G-240 Sector Beta -2, Greater Noida (U.P) alleging illegal activities of Dr. Rakesh Varma Regarding Patronage Welfare and Educational Society Located at Khastra No.26/16/2 Village Karawal Nagar, Delhi 94. The matter was reported to Dte. G.H.S vide the Hospitals letter No. PF-1-849/93-Admn.I dated 30.06.2008. Another complaint of the same person was received on 09.06.09. A report was submitted to the Secretary (H&PW) under intimation to Joint Secretary (Vig) and Director (Admn. & Vig), Det.G.H.S. vide the Hospitals letter No. PS/MS/MOHFW/DGHS/2009 dated 01.07.2009.
(xii) There was a serious complaint that Dr. Rakesh Varma, HOD, Cardiology illegally allowed Dr. V.K. Trehan to join and work as Cardiologist in the Hospital for the period from 20.01.97 to 19.08.91. A detailed report in the matter was sent by the Hospital to the Ministry for taking disciplinary action against Dr. Verma.
Shri Yogesh Sharma r/o G-240, Sector Beta 2, Greater Noida vide his complaint dated 16.11.2011 has alleged that the main profession of Dr. Verma is grabbing of others property and he is busy in this business since 1982. He has given details of the property and various court cases in which Dr. Verma is involved and which are pending in various courts of India, namely, District Court of Noida, District Court of Tis Hazari, Delhi, District Court of Lucknow, High Court of Delhi, High Court of Allahabad, High Court of Lucknow Bench etc. Details of some of these cases are as follows:-
(a) Rakesh Verma Vs. Dr. D.R. Sharma r/o Plot No. 1, Sector 39, Tithari, Noida pending in District Court Noida.
(b) Rakesh Verma Vs. Shri Vidya Sagar Bhagat r/o A-157, Defence Colony, New Delhi pending in District Court of Tis Hazari.
(c) Rakesh Verma Vs. Central Registrar of Cooperation Societies and others pending in High Court of Delhi.
(d) Rakesh Verma Vs. Dr. K.R. Sharma, District Court Tis Hazari.
(e) Rakesh Verma Vs Air Force pending in High Court of Delhi.
(f) Rakesh Verma Vs Rajinder Singh r/o Vill. Sarafabad, Sector 51, Noida pending in District Court of Delhi.
22. We have heard the learned counsel for the Applicant, Shri G.D. Gupta, Sr. Counsel with Shri S.K. Gupta, learned counsel for Respondents 1 to 3, Shri A.K. Singh and Shri Naresh Kaushik for Respondent No.4. We have also perused the various documents relied upon by them as part of the pleadings. From the facts as narrated by the Applicant and the statements of the Respondents in this OA, the inevitable impression we gather is that there has been serious rivalry between Applicant and the 6th Respondent, who are two higher ranking medical experts holding very senior level position under the officials respondents. The issue involved in this case is certainly not mere upgradation of the ACRs of the applicant which contain gradings below bench mark but it is much more serious. The Applicant has made direct and pointed allegations of tampering of his ACRs by his own Reviewing Officer Dr. Jagdish Prasad (Respondent No. 6) with sinister and ulterior motive. In the various representations submitted to the Respondent Department, he stated that it was Dr. Jagdish Prasad who forged and tampered with his ACRs. In one of his representations to the Secretary of the Respondent Ministry, he made the specific allegation that some time after August/September, 2010, Dr. Jagdish Prasad has tampered his ACRs of the period 2000-2001, 2001-2002-2003 and from 01.04.2003 to 25.09.2003 purposely to show them below benchmark so as to oust him from consideration for promotion to HAG for which he was awaiting at slot No.1. He has also produced copies of his aforesaid ACRs wherein Dr. Jagdish Prasad has purportedly, as Reviewing Officer, first downgraded him from Outstanding to Very Good and at a later point of time cut the word Very by a line in all these ACRs to make it read as Good only. He has, therefore, requested the Secretary, M/o Health and Family Welfare to undo the wrong of showing the ACRs for the period 2000-2001 to 2002-03 and 01.04.2003 to 25.09.2003 below bench mark, done to him and to initiate such steps as may be necessary and called for, to investigate and to ensure that such alteration of records is not attempted to be done in future by anyone. The Secretary, Ministry of Health and Family Welfare repeatedly sought explanation from Dr. Jagdish Prasad on the aforesaid allegation made by the Applicant that he had changed the entry originally made by him as Very Good to Good. He ignored the said directions of the Secretary and kept quite about the allegation of tampering/cuttings, in the ACRs of the applicant made against him. However, it is seen that at the relevant time, the Applicant was working as Senior Cardiologist in Safdarjung Hospital and Respondent No. 6 was working on the higher post of Medical Superintendent. Later, the Respondent No.6 became Director General Health Services. For the ACRs of the Applicant for the periods 2001-01, 2001-02, 2002-03 years, the Reporting Officer was Dr. B. Chakravorty and the Reviewing Officer was Dr. Jagdish Prasad. For the aforesaid periods, the Reporting Officer gave him the overall grading as Outstanding Dr. Jagdish Prasad in his capacity as the Reviewing Authority did not agree with the grading given by the Reporting Officer and gave him only the Very Good grading. He has also made the following identical remarks in all the ACRs:-
I do not agree with the grading given by the Reporting Officer as it is not based on the assessment of the performance of the officer. On the basis of his overall performance during the period under report, I grade him as Very Good. For the period from 01.04.2003 to 25.09.2003, Dr. Jagdish Prasad was the Reporting Officer of the Applicant and Dr. S.P. Aggarwal, DGHS was the Reviewing Officer. Dr. Jagdish Prasad initially himself graded him as Very Good for the aforesaid period. Since Dr. Aggarwal, by that time retired from service, he was not available to review the said ACR. From the perusal of the three ACRs of the applicant in which Dr. Jagdish Prasad was his Reviewing Officer, it appears that even though he indicated different dates in each of those ACRs, he must have written all of them at the same time, i.e., after 25.09.2003. However, for the period from 01.04.2005 to 31.03.2006 and from 01.04.2006 to 31.10.2006 the applicant was again graded as Outstanding by both the respective Reporting and Reviewing Officers. Dr. Jagdish Prasad again became the Reporting Officer of the Applicant for the year 2007-08 and on the expected lines he graded him as Good which is below bench mark.
23. Coming back to the allegation of forging and tempering with the ACRs of the applicant, when Dr. Prasad did not give his explanation of the accusation and allegations made by the applicant and pointed out by the then Secretary, M/o Health and Family Welfare he referred the matter to them Director General of Health Services and considering the documents available on record he came to categorical conclusion that the ACRs of the applicant for the period from 2000-2001 to 2002 to 2003 and from 01.04.2003 to 25.09.2003 have been tampered. The Director General has also observed the uniform pattern adopted in tempering with those ACRs. Further, the said Director General has recommended to treat the aforesaid ACRs are having the original grading of Very Good. Alternatively, he has recommended that those ACRs can be set aside for DPC purposes. Suddenly, Dr. Prasad who has been keeping a studied silence so far in the matter got up to object to the aforesaid recommendation of the Director General and opposed the proposed upgradation to Very Good level and to keep away those ACRs from DPC.
24. In spite of all the above developments, the official respondent tried to view the entire matter as a routine case of ACRs with below Bench mark gradings, in terms of the instructions issued by the DoP&T vide its OM No. 21011/1/2010-Estt.A dated 13.04.2010. Accordingly, they communicated the aforesaid four ACRs of the applicant vide OM dated 15.10.2010 seeking his representation, if any. They feigned ignorance about the various complaints made by the applicant about forging and tampering with the aforesaid ACRs and no action taken by themselves in the matter thus far. While the Respondents being the custodian of the ACRs, having the responsibility of maintaining their confidentiality and keeping them secure from the interference of the outsiders and unauthorized persons, as if they are dealing with a very insignificant matter, they have submitted in the reply affidavit that the change of grading from Very Good to Good was done based on the performance and conduct of the applicant.
25. We, in the above facts and circumstances, are of the considered view that the aforesaid ACRs for the year 2000-01, 2001-02, 2002-03 and 01.04.2003 to 25.09.2003 cannot be treated as ACRs containing below Bench mark but as ACRs which have been tampered with by alternating the gradings in those ACRs by an authorised person with the sinister purpose of preventing the applicant from getting his due promotions in time. An ACR of an employee which has been forged and tampered with is a non existent ACR in its original form and, therefore, it has to be treated accordingly for all intents and purposes. Hence, the impugned OM of the respondents dated 01.05.2012 calling upon the applicant to make representation for upgradation of his grading in the ACRs for the period of 2000-01 to 2002-03 and 01.04.2003 to 25.09.2003, in terms of DoP&Ts OM No. 21011/1/2010-Estt(A) dated 13.04.2010 is quashed and set aside.
26. Looking at the very same issue from a different point of view, it is seen that admittedly the ACRs which contained the below bench mark gradings below to the years 2000-01, 2001-02, 2002-03 and 2004-03 to 25.09.2003. They have been communicated to him after 10 to 12 years by the impugned orders dated 01.05.2012 that too when case for promotion to HAG post is about to be considered. By such delayed communication of the below bench mark ACRs, the utility of such procedure itself has been lost. Therefore, for the aforesaid reason also, those ACRs cannot be considered for determining the eligibility of the applicant for promotion.
27. The aforesaid aspect was considered by the Apex Court in the case of Baidyanath Mahapatra v. State of Orissa and Another, AIR 1989 SC 2218 and held as under:-
6. The adverse entries for the years 1969-70, 1970-71, 1972-73 and 1975-76 were communicated in a lot to the appellant in 1978, although under the instructions issued by the State Government the adverse entries must be communicated by December of each year. The purpose of communicating adverse entries to the Government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend, and improvement in his work and further if the entries are not justified the communication affords him an opportunity to make representation. If the adverse remarks awarded to a Government servant are communicated to him after several years, the object of communicating entries is defeated. It is therefore imperative that the adverse entries awarded to a Government servant must be communicated to him within a reasonable period to afford him opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustified. In the instant case, adverse entries relating to a number of years were communicated to the appellant in one lot under a letter dated 27-2-1978 contrary to the instructions issued by the State Government as contained in Circule No. 29 dated 19-2-1953. Belated communication of the entries resulted into denial of reasonable opportunity to the appellant to improve his performance. Further since adverse remarks for several years were communicated with inordinate delay it was impossible for the appellant to make an effective representation against the same. The appellants representation against the aforesaid entries was rejected on 12-3- 1981 on the ground that the representation was barred by time. Since the communication of the adverse entries was itself highly belated the representation against those adverse remarks should have been considered on merits and the same could not be rejected on the alleged ground of delay as the Government itself was guilty of inordinate delay in communicating the adverse remarks to the appellant.
28. Analysing the entire issue of communicating the adverse remarks/below bench mark gradings, the Honble High Court of Delhi in its recent judgment in WP (C) 5042/2002 and connected petitions Union of India and Another v. V.S. Arora & Ors. held as under:-
14..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. Because, 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). xxx xxx xxx xxxx 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, O M. 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.
29. As regards the 2nd impugned OM No. C-13011/02/2010-Vig dated nil March 2012 issued by the Director (Vigilance) Department of Health and Family Welfare is concerned, in the said OM itself it has been stated that they are only certain factual position regarding the applicants. However, those facts or information about the applicant are not relevant for considering him for promotion to the HAG. The said authority itself has stated relevant aspects in the said OM that the applicant is not covered by any of the evaluates, namely (i) under Suspension, (ii) Government Servant in respect to whom charge-sheet has been issued and disciplinary proceedings are pending and (iii) Government Servants in respect of whom prosecution for a criminal charge is pending to deny him the clearance from the vigilance angle.
30. It is seen that the Director Vigilance in the aforesaid impugned OM is referring to Office Memorandum No.22011/1/91-Estt.(A) dated 31.07.1991 issued by the Government of India in the light of the decision of the Supreme Court in the case of Union of India v. K.V. Jankiraman AIR 1991 SC 2010 and it reads as under:-
OFFICE MEMORANDUM Sub:-Promotion of Government servant against whom disciplinary/court proceedings are pending or whose Conduct is under investigation -Procedure and guidelines to be followed.
The undersigned is directed to refer to Department of Personnel & Training OM No.22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conducts is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.08.1991 of the Supreme Court in Union of India etc. Vs. K.V.Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in supersession of all the earlier instructions on the subject (referred to in the margin), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee-
i) Government servants under suspension.
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for a criminal charge is pending.
2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary cases/criminal prosecution pending. The assessment of the DPC, including Unfit for Promotion, and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed findings regarding suitability for promotion to the grade/post of .............. in respect of Shri ............. (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri .................. The proceedings of the DPC need only contain the note The findings are contained in the attached sealed cover. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.
2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.
3. On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be causes where the proceedings, whether disciplinary or criminal, are for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. These are only some of the circumstances where such denial can be justified.
3.1 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if his found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
3.2 It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules, warning? should not be issued as a result of such proceedings. If it is found, as a result of the proceedings, that some blame attaches to the Government servant, at least the penalty of censure? should be imposed.
4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should inter alia, cover the progress regarding disciplinary proceedings/criminal prosecution and the further measures to be taken to expeditious completion.
5. In spite of the six monthly review referred to in para above there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided his is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects:-
a) Whether the promotion of the officer will be against public interest.
b) Whether the charges are grave enough to warrant continued denial of promotion
c) Whether there is any likelihood of the case coming to a conclusion near future
d) Whether the delay in the finalization of proceedings, departmental or in court of law, is not directly or indirectly attributable to the Government servant concerned; and
e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigation conducted by the Bureau.
5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individuals record of service without taking into account the pending disciplinary case/criminal prosecution against him.
5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that:
i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and
ii) the promotion shall be until further orders. It should also be indicated in the orders that the Government reserve the right to cancel the ad-hoc promotion and revert at any time the Government servant to the post from which he was promoted.
5.3 If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as regular one from the date of the ad-hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
5.4 If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.
6. The procedures outlined in the preceding paras should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent vacancy should be reserved for such an officer when his case is placed in sealed cover by the DPC.
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.
8. In so far as the personnel serving in the Indian Audit and Accounts Department are concerned these instructions have been issued after consultation with the Comptroller and Auditor General of India.
31. Analysing the aforesaid O.M. particularly para 7 thereof, the Honble High Court of India in WP(C) 6536/2010-R.R.Sahay Vs. Union of India & Connected cases decided on 07.02.2011 held that if the aforesaid three eventualities occur even after holding DPC, appropriate action can always be taken. The relevant part of the said judgment is as under:-
15. In K.V.Janakiramans case (supra), the Supreme Court considered Office Memorandum dated 30.1.1982 pertaining to what is commonly understood as Sealed Cover Procedure. The Supreme Court held that a Government Servant has a Constitutional Right to be considered for promotion as per Rules, but right to promotion is not absolute. It was held that if on date when a Departmental Promotion Committee meets, a Civil Servant is under suspension or a charge-sheet (departmental) is issued or a Criminal Investigating Agency has filed a charge-sheet in the Court of Competent Jurisdiction, recommendations pertaining to the said Government Servant have to be kept in a Sealed Cover and the Committee has to consider the candidature excluding the misdemeanor alleged.
16. However, relevant would it be to note that applying the aforesaid Statement of Law, to the facts before it and noting that the DPC had met in July 1986 and a charge-sheet was issued in August 1987 to initiate departmental proceedings, the Government Servant concerned was held not entitled to be promoted and recommendations of the DPC were directed to be kept in abeyance. In para 17 of the decision, the Supreme Court held that law cannot be applied mechanically.
17. This is the ratio which can be culled out from a subsequent decision of the Supreme Court reported as State of M.P. vs. Sayeed Nazeem Zahir AIR 1993 SC 116. The DPC had met on 20.10.1987. The charge-sheet as issued on 15.4.1988. The misdemeanor was under consideration i.e. preliminary inquiry was being held and matter was being considered hether the charge-sheet should be issued by which time the DPC had met and since a charge-sheet was finally issued, the Supreme Court held that recommendations pertaining to the Government Servant i.e. Sayeed Nazeem Zahir had to be kept in a Sealed Cover. The mechanical decision of the High Court which had held that since no charge-sheet was issued when DPC met required Sealed Cover Procedure not to be followed was overruled by the Supreme Court which specifically noted para 17 of the decision in K.V.Janakiramans case (supra).
18. It is apparent that what was declared as the law by the Supreme Court pertaining to the Office Memorandum dated 30.1.1982 was crystallized in para 7 of the Office Memorandum dated 31.7.1991 and thus we may safely eschew a discussion of such decisions which were cited before us in which the Office Memorandum dated 30.1.1982 issued by the Government of India were considered or Office Memorandums issued by Public Sector Undertakings were considered and were akin to the language of the Office Memorandum dated 30.1.1982 and in this category would fall the recent decision of the Supreme Court reported as AIR 2007 SC 1706 Coal India Ltd. vs. Saroj Kumar Mishra, where the Office Memorandums considered were dated 27.6.1979 and 8.1.1981 issued by Coal India Ltd. Suffice would it be to state that said Office Memorandums did not have a clause akin to clause-7 which this Court is considering.
19. xx xx xx
20. A Division Bench of this Court, in an unreported decision dated 7.11.2006 in UOI vs. R.C.Sehgal, setting aside the decision of the Central Administrative Tribunal in view of an Office Memorandum having pari-materia language with clause-7 of the Office Memorandum dated 31.7.1992, held that R.C.Sehgal, who was empanelled for promotion by the DPC on 31.3.2005 could not be promoted in view of the fact that by the date a vacancy arose i.e. 31.12.2005 due to retirement of an incumbent holding the promotional post, had come under a cloud and a decision was taken in the file to initiate disciplinary action against him.
21. We note that there is a direct decision of the Supreme Court on the point, being the decision reported as AIR 2000 SC 2337 UOI & Anr. vs. R.S. Sharma where the Supreme Court had considered the Office Memorandum dated 31.7.1979 and evidenced by paras 14 to 16 of the decision, had considered the effect of para 7 of the Office Memorandum. The contra view taken by the Central Administrative Tribunal (as propounded by the petitioners herein) was set aside and the Appeal filed by the Union of India was allowed.
22. A decision dated 2.12.2010 in Government of NCT Delhi & Ors. vs. Deb Singh Bhakuni & Ors. was also relied upon by the petitioners to support their contention and since the said decision has been authored by one of us; Pradeep Nandrajog, J., we may clarify on the said decision.
23. The decision had considered the Office Memorandum dated 31.7.1991 and had noted that when the DPC met on 15.5.2008 and cleared the name of Deb Singh Bhakuni he was empanelled for promotion and on said date neither a charge-sheet for departmental inquiry was under contemplation or was issued and nor was any charge-sheet by a Criminal Investigating Agency filed in a Court. It was noted that even till 2.12.2010 when decision was pronounced by an oral order in Court, was any decision taken to initiate Departmental Proceedings against Deb Singh Bhakuni nor had any Criminal Investigating Agency filed a charge-sheet against him in the Competent Court. It was further noted that an FIR had been registered on 2.1.2006 pertaining to a stated financial bungling when Deb Singh Bhakuni as a Senior Accounts Officer and even till 2.12.2010 no charge-sheet was filed. It was on said facts it was held that Deb Singh Bhakuni had aright to be promoted.
24. Needless to state as held in K.V.Janakiramans case (supra) and as followed in Sayeed Nazeem Zahirs case (supra) law cannot be applied mechanically.
25. We may only add that Courts have to balance the public interest which demands the accountability of/from every Government Servant vis-`-vis the right of a Government Servant to a speedy investigation of his conduct and not that his conduct being investigated should turn out to be a test of his patience.
26. If the Courts find equities in favour of a Government Servant on account of preliminary investigations continuing for years together and neither departmental action initiated nor a charge-sheet before a Competent Criminal Court filed and the Government Servant is otherwise found fit to be promoted, in those special circumstances, which create equities in favour of the Government Servant, appropriate directions can always be issued.
32. In view of the above legal position, since the applicants case is not covered by the aforementioned three eventualities for the present, he cannot be denied vigilance clearance. Hence, the 2nd impugned Memorandum dated nil March, 2012 to the extent it says that the applicant cannot be said to be clear from vigilance angle is quashed and set aside.
33. As regards the 3rd impugned order dated 21.05.2012 communicating the below bench mark ACR of the applicant in respect of the applicant for the period 2007-2008 is concerned, it cannot be considered in isolation as the same has been written by Dr. Jagdish Prasad who has unauthorizedly tampered with the ACRs of the applicant for the year 200-2001 to 2002-2003 and 01.04.2003 to 25.09.2003. As Dr. Jagdish Prasad is totally biased against the applicant, his assessment of the applicant for the year 2007-2008 cannot be objective. The only difference between the earlier 4 ACRs and the present ACR is that in the earlier ACRs Dr. Jagdish Prasad had originally graded the applicant as Very Good and later on unauthorizedly tampered with them to make it the below bench mark grading of Good but in the ACR for 2007-2008, he straight away made it as Good. Therefore, for the same reason, the ACR for the year 2007-2008 cannot be taken into consideration for any intent and purposes including promotion to the higher post. Accordingly, the order dated 21.05.2012 is also quashed and set aside.
34. As regards the prayer of the Applicant to direct the Respondents to consider his case for promotion to HAG, it is sent that the Applicant himself in his reply has stated that he is being considered for promotion to HAG by a review DPC for the year 2005-06 as his junior in the original panel for the year 1991-92 has already been promoted. Therefore, no specific directions with regard to this prayer is required.
35. As regards the prayer of the Applicant to order police/departmental action against the Respondent No.6 is concerned, in our considered view it cannot be entertained, as the same is not within the jurisdiction of this Tribunal and accordingly it is rejected.
36. With the aforesaid directions/observations, we partly allow this OA. The stay order dated 13.03.2012 to the Respondent-UPSC against holding the DPC/Review DPC also stands vacated.
37. There shall be no order as to costs.
MA No.1045/2013 in OA No.2009/2012
38. By this Miscellaneous Application, the Applicant has challenged the letter of the Respondents dated 28.02.2011 conveying him the decision of the Respondents that his ACRs for the year 2005-2006 and 2006-2007 are invalid and cannot be accepted. It is seen that the same has been filed by the Applicant only on the date of final hearing of the OA No.2009/2012. Therefore, no notice in this MA was issued to the Respondents. Moreover, the applicant has not made any representation against the same to respondents before he has filed this MA. Thus, he has filed this MA without exhausting the departmental remedies available to him. Hence the said letter cannot be entertained as part of this OA and, therefore, it is dismissed. However, he may challenge the same in accordance with the rules, if so advised, subject to just exceptions.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`Rakesh