Central Administrative Tribunal - Delhi
Govind Singh Khairwal (Si Sast) vs The Govt. Of N.C.T.D on 15 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No. 2349/2011 New Delhi, this the 15th day of April, 2015 Honble Mr. A. K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) Govind Singh Khairwal (SI SAST), S/o Late Sh. Shibbu Khairwal, R/o G-14, P.S. Hauz Khaz, New Delhi. - Applicant (By Advocate: Sh. Sachin Chauhan) Vs. 1. The Govt. of N.C.T.D., Through Commissioner of Police, Police Headquarters, I.P.Estate, New Delhi. 2. The Dy. Commissioner of Police (Estt.), Police Headquarters, I.P.Estate, New Delhi. 3. The Dy. Commissioner of Police (PCR), Through the Commissioner of Police, Police Headquarters, I.P.Estate, New Delhi. - Respondents (By Advocate: Sh. Amit Anand) ORDER
Honble Shri V.N.Gaur, Member (A) The applicant has filed this OA challenging the order dated 09.02.2011 to the extent it denies him the benefit of second financial upgradation under ACP Scheme while granting the same benefit to other similarly situated persons.
2. Mr. Sachin Chauhan, learned counsel for the applicant submitted that the applicant was appointed as Head Constable (Ministerial) on 10.06.1977 and later as ASI (SAST) on 09.11.1983 on direct recruitment basis. The post of the applicant was upgraded as SI (SAST) in the year 1986. He was due for second ACP with effect from 01.02.2006 (09.11.2007 according to the respondents) but the Departmental Screening Committee (DSC) declared him unfit on the ground that applicant could not achieve the required benchmark. Some of his juniors were however, assessed as fit for granting second financial upgradation in the pay scale of Rs.6500-10,500 with effect from 01.02.2010. The applicant made a representation on 26.02.2011 which has not been considered by the respondents. The applicant had always been graded as B or A and according to the guidelines of Home Department issued on 09.07.1996 it has to be treated as Very good or Good only. The applicant was never communicated any adverse or below benchmark entry in the ACRs during the period under consideration for the ACP. The DSC therefore committed an error in assessing the applicant as unfit on the basis un-communicated below benchmark ACRs, if there was any. This action of DSC was contrary to the law laid down by the Honble Supreme Court in Dev Dutt vs. Union of India, (2008) 8 SCC 725. He also placed reliance on State of U.P. vs. Yamuna Shankar Misra, 1997 (4) SCC 7 and referred to a catena of judgments to the effect that un-communicated ACRs were to be treated as non-est in the eyes of law. He made special reference to the judgment of Honble High Court of Delhi in Union of India & anr. vs. V.S.Arora & ors., WP (C) no.5042/2002 wherein the Honble High Court after considering decisions in Dev Dutt (supra), Abhijit Ghosh Dastidar vs. Union of India and ors., (2009) 16 SCC 146 and many other judgments of the Apex Court, came to a conclusion that un-communicated below benchmark ACRs would have the same position as those ACRs which have not been written or which are not available for any reason.
3. Learned counsel for the respondents, on the other hand, stated that the applicant had earned three Average and two Very Good gradings in the period under consideration. However, he argued that the Departmental Screening Committee had graded the applicant unfit not because of the below benchmark ACRs but on the basis of overall assessment of the applicant for the relevant 5 years. Referring to the instructions contained in DOP&Ts OM no. 22011/5/86-Estt.(D) dated 10.04.1989, the learned counsel stated that the DPC was not to be guided merely by the overall grading that may be recorded in the ACRs but would make its own assessment on the basis of the entries in those ACRs. Learned counsel also referred to Union of India and Anr. vs. S.K.Goel & Ors., SLP (C) no.2410/2007 upholding the principle that the DPC enjoyed full discretion to devise its method or procedure for objective assessment of suitability and merit of the candidate being considered by it. The question of communicating below benchmark ACRs would, therefore, be not relevant in this background of the scope of DPCs discretion. With regard to the reliance on V.S.Arora (supra) by the applicant, learned counsel stated that the same could not be taken cognizance at this stage as it was not a part of the pleading in the OA.
4. We have carefully considered the submissions made by both the sides and also perused the records, including the original ACRs and Screening Committee File relating to the consideration of the applicant. The conditions prescribed for granting ACP stipulates fulfillment of normal norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group D employees etc.) for grant of financial upgradations. It follows therefrom that DSC has to follow the same norms to assess the fitness for ACP as a DPC will do for judging fitness for promotion, and the guidelines for DPC will also apply to DSC.
5. The respondents have taken a stand that the DPC is not guided merely by the overall grading of the ACRs but it makes its own assessment of the performance of the officer during the relevant period by going through the entries in each of the ACRs and, therefore, question of below bench mark grading given in any ACR would not be relevant. In the light of the pronouncement in S. K. Goel (supra) the respondents have emphasized on the power and discretion bestowed on the DPC or DSC for assessing the performance of an employee. However, that is not the issue before us. The question before us is whether in this case the DSC applied its own mind or was guided by the grading given in the ACRs, and whether a below benchmark ACR need not be communicated since DPC/DSC is expected to be not guided by the grading of the ACR.
6. We have perused the record of DSC proceedings of 21.01.2011 wherein 30 officers, including the applicant, were considered for grant of 2nd ACP. In many cases there were Average ACRs but wherever an officer had 3 or more Good and above ACRs he was graded as `Fit irrespective of remaining Average ACRs. The applicant was the only one with more than two Average ACRs which made the DSC to grade him `Unfit. It is thus quite apparent that the DSC had adopted the straight forward majority criterion to decide the fitness of the candidates, i.e. if the majority of ACRs were Good and above the candidate was considered as above benchmark, otherwise below the benchmark and Unfit. The record of the DSC does not show anywhere that the Committee had deviated from the above formula and made its independent assessment which was at variance with the majority grading. The submission of the learned counsel of respondents made in the counter reply of the respondents also contradicts this stand of the respondents. The relevant portion of the Brief Facts stating that the applicant did not achieve the prescribed benchmark of 3 Good or above is reproduced below [page 53 of the paper book]:
After evaluation of the service particulars as well as the ACRs for the preceding five years i.e. from 2001-02 to 2005-06 of SI (SAST) Govind Singh Khairwal, No.1511/D, the Screening Committee graded him `unfit for the grant of 2nd financial upgradation under the ACP Scheme as he did not achieve the prescribed benchmark of 3 Good or above ACRs as per criteria for Screening Committee circulated by the PHQ vide circular No.83135-234/CB-I/PHQ dated 3.12.1998 (Annexure R-1) and No.61444-543/CB-I/PHQ dated 5.8.2003 (Annexure R-2) (No Annexures have been, however, filed with the counter reply.)
7. The respondents have also in a memo dated 12.05.2011 (a copy of which has been filed by the applicant in MA 2832/2012) communicated the reason for denying him 2nd ACP which reads as follows:
The request of SI (SAST) Govind Singh Khairwal, No.1511/D for the grant of 2nd Financial Upgradation under ACP Scheme has been considered in this Hdqrs. but the same could not be acceded to as the Screening Committee did not find him fit for the same because he did not achieve the benchmark of 3 Good or above ACRs as per PHQs Circular No.83135-234/CB-I, dated 3.12.1998 and 61444-543/CB-I, dated 5.8.2003.
8. Thus contention of the respondents that the DPC took an independent view of the performance of the officer irrespective of the grading in the ACRs does not get any support from the proceedings of the DSC or any other document.
9. With regard to the second question, if the logic put forth by the respondents is accepted, there will be no relevance of the overall grading given by the reporting, reviewing and accepting authorities while considering an officer for promotion. That does not appear to be the intention behind the DoPT guidelines of 1989 (supra) for DPCs. The relevant portion of the guidelines, mentioned in para 6.2.1 (e), is reproduced below:
(e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes.
10. The wording itself shows that the DPC does not have to abandon the grading given by the superior officers but have examined whether the overall grading is consistent with the entries in the columns pertaining to various parameters and attributes. We therefore, do not subscribe to the view that the above guidelines for the DPC would absolve the respondents from the obligation of communicating the below benchmark ACRs to the applicant. It was incumbent on the respondents, in terms of Dev Dutt (supra), to communicate the same before holding the DSC. The import of Dev Dutt (supra) is not only that the below bench mark grading should be communicated but the remarks in the ACR that had led to below bench mark grading would also be required to be communicated. In fact, the Honble Supreme Court went a step ahead and took a view that every entry relating to an employee must be communicated within a reasonable period and it makes no difference whether there was a bench mark or not. The relevant para of that judgment is reproduced below:
14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench-mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry.
11. In Abhijit Ghosh Dastidar (supra), the three Judge Bench of the Honble Supreme Court held that such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries Good if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade.
12. In V.S.Arora (supra) Honble Delhi High Court took a comprehensive look at the decision in respect of below bench mark ACRs as emanating from various judgments of Honble Supreme Court and after considering Dev Dutt (supra) and Satya Narain Shukla vs. Union of India, 2006 (5) SCALE 627, K.M.Mishra vs. Central Bank of India and Others, (2008) 9 SCC 120, Union of India vs. A.K.Goel, SLP (Civil) 15700/2009, Union of India vs. Krishna Mohan Dixit, WP (C) no.6013/2010 and many others along with Abhijit Ghosh Dastidar (supra), and came to the following conclusion:
24. Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit GhoshDastidar (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.
13. Taking into account the view taken by the Honble High Court of Delhi in V.S.Arora (supra), we hold that in the present OA also the below bench mark ACRs ought to have been communicated by the respondents to the applicant and in the absence of doing so, the same cannot be considered by the DSC for deciding suitability of the applicant for granting second financial upgradation. We also do not agree with the view of the learned counsel of the respondents that V.S.Arora, (supra) cannot be considered by this Tribunal at this stage because it was not a part of the pleadings in the OA. The law has already been laid down by the Honble Supreme Court in Dev Dutt (supra), Abhijit Ghosh Dastidar (supra) and other such judgments and the same had been analysed and interpreted by Honble High Court of Delhi in V.S.Arora (supra). Once interpreted in a particular manner, it is trite that the law would be treated as having been in that way since its inception. The position in law will not change whether the same has been a part of the pleadings or not.
14. With regard to the question of grading B in the ACR which the applicant would like to be interpreted as `Fit for promotion, we find that in the present case only two part ACRs for the year 2003-04 carry the label B along with the grading Average. The applicant has filed the orders passed by this Tribunal in OA 2219/2005 and OA937/2008 dealing with somewhat similar question. The view taken in those orders is that B grading with `Satisfactory remark has to be read as `Good. This verdict does not help us in taking a view regarding the combination of B with `Average as in this case. In the absence of detailed pleadings on this issue we refrain from recording any finding.
15. In view of the preceding discussion and the reasons stated, we quash the impugned order to the extent it holds the applicant `Unfit for grant of second financial upgradation under the ACP. The respondents are directed to hold a review DSC for considering the applicant for grant of second financial upgradation under the ACP ignoring the un-communicated below bench mark ACRs during the relevant period, and follow the procedure as in the event when some of the ACRs have not been written or declared non est. This process should be completed within a period of 8 weeks from the date of receipt of a certified copy of this order. No order as to costs.
Registry is directed to return the departmental file, including the personal file of the applicant, to the concerned.
(V.N. Gaur) (A.K. Bhardwaj) Member (A) Member (J) sd