Central Administrative Tribunal - Delhi
Coram vs Union Of India on 23 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A.NO.2108 OF 2014 This the 23rd day of April, 2015 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Sanjay Gupta, aged 45 years S/o Sh.P.C.Gupta, R/o Durga Place, ITI Chowk, Sonepat 131001 Employed at NTIPRIT, Ghaziabad, as Director . Applicant (In Person) Vs. Union of India, through its Secretary, Ministry of Communications & IT, Department of Telecommunications, Government of India, Sanchar Bhawan, New Delhi . Respondent (By Advocate: Mr.M.S.Reen) .. ORDER
I have perused the pleadings and have heard the applicant in person and Mr.M.S.Reen, learned counsel appearing for the respondent.
2. The applicant is an officer of 1993 batch of P&T Building Works Services Group A. He joined the Department of Telecommunications on 7.1.1994. He has been working in the JAG grade since 2004 and is presently posted as Director (IM), NTIPRIT, Ghaziabad. He became eligible for grant of Non-Functional Upgradation in SAG with effect from 1.3.2014.
3. The Director (E&A), NTIPRIT, Ghaziabad, vide his letter dated 19.6.2014, communicated to the applicant a Xerox copy of his below benchmark ACR for the year 2007-08, which was forwarded by the Section Officer (A&E), Department of Telecommunications, New Delhi, vide letter dated 4.6.2014, and asked him to submit his representation within 15 days from the date of receipt of the said communication. Accordingly, the applicant submitted his representation on 20.6.2014 to the Secretary, Department of Telecommunications, New Delhi (respondent herein). In the said representation, the applicant, while pointing out the delay in communicating to him the below benchmark ACR for the year 2007-08 and the fact that the ACR for the year 2007-08 was not required to be taken into account by the DSC while considering his case for grant of NFU with effect from 1.3.2014, requested the respondent to ignore the said below benchmark ACR. Thereafter, he filed the present O.A. on 24.6.2014 seeking the following relief(s):
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned letter dated 4.6.2014 & 19.6.2014 (A/1), declaring to the effect that the same is belated and illegal and consequently, pass an order directing the respondents to ignore the non-communicated ACR of the year 2007-08 in the DPC.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
4. It is the grievance of the applicant that the respondent has communicated to him the below benchmark ACR for the year 2007-08 after a delay of six years purportedly in terms of the DoP&Ts O.M. dated 13.4.2010 with a view to place the same before Departmental Screening Committee (DSC) which had to consider his case for grant of Non-Financial Upgradation in SAG with effect from 1.3.2014, although his ACR for the year 2007-08 was not required to be so placed and taken into consideration by the DSC. The applicant has also contended that the communication of the below benchmark ACR for the year 2007-08 deprived him of an opportunity to make an effective representation against the same as in the meantime six years have elapsed.
5. The respondent, in its counter reply, has, inter alia, stated that the applicant, after making a representation dated 20.6.2014, filed the present O.A. on 24.6.2014 and therefore, the O.A. filed by him is premature and liable to be rejected. It has also been stated by the respondent that as the applicant was not clear from vigilance angle, he was not granted NFU with effect from 1.3.2014.
6. Section 20 of the Administrative Tribunals Act, 1985 (hereinafter referred to as Act) reads thus:
20. Applications not to be admitted unless other remedies exhausted.-(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances.-
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
7. Admittedly, the applicant made the representation dated 20.6.2014, and no order was passed by the respondent as on 24.6.2014 when the applicant filed the present O.A. Apparently, the period of six months from the date of the applicants representation dated 20.6.2014 did not expire when the applicant filed the present O.A. and therefore, he could by no stretch of imagination be said to have availed of the departmental remedy so as to maintain the O.A. before this Tribunal, seeking redressal of his grievance, if any. In D.C.S.Negi v. Union of India and others, SLP/CC No.3709 of 2011, decided on 7.3.2011, it has been observed by the Honble Supreme Court that the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established. In the circumstances, I have no hesitation to hold that the O.A. filed by the applicant, being premature, is not maintainable and is liable to be rejected. However, in view of the fact that on 27.6.2014, when the O.A. was taken up for preliminary hearing on the question of admission, the Bench, without examining the question of maintainability, issued notice to the respondent, and that the O.A. came up before the Bench only on 15.4.2015 for final hearing, I am inclined to dispose of the O.A. on a limited aspect, instead of rejecting the same outright.
8. In the instant case, the DSC met on 5.6.2014 whereas the below benchmark ACR of the applicant for the year 2007-08 was purportedly forwarded by the Section Officer (A&E) of the Department of Telecommunications, New Delhi (respondent), vide his letter dated 4.6.2014, and the Director (E&A), NTIPRIT, Ghaziabad, vide his letter dated 19.6.2014, communicated the same to the applicant for making representation. Thus, it is found that before the applicant received the copy of the below benchmark ACR for the year 2007-08 on 19.6.2014, the DSC had already met on 5.6.2014 and considered the applicants case and kept its assessment in respect of the applicant in the sealed cover because of withholding of vigilance in his case. It does not transpire from the minutes of the DSC, copy of has been filed by the applicant along with his rejoinder reply, that the applicants below benchmark for the year 2007-08 and the ACRs of other eligible officers for the year 2007-08 were taken into account by the DSC. It has nowhere been laid down in the DoP&Ts O.M. dated 13.4.2010 (ibid) that the required below benchmark ACR for any period prior to the period 2008-09 is to be communicated to the concerned officer only a day or few days ahead of the date of meeting of the DPC/DSC which considers his/her case for promotion. The communication of the below benchmark ACR for the year 2007-08 to the applicant, purportedly in terms of the DoP&Ts OM dated 13.4.2010 (ibid), appears to be an eyewash. Thus, the approach made by the respondent cannot be said to be aboveboard. Coming to the grievance raised by the applicant in the present O.A., it transpires that the respondent has failed to consider and decide the applicants representation dated 20.6.2014 even though more than nine months have passed in the meantime. The respondent has not assigned any reason, far less justifiable, as to why the applicants representation still remains undecided. As the respondent is yet to consider the applicants representation dated 20.6.2014 and take appropriate decision, and the contentions raised in the said representation as well as in the O.A. being same, this Tribunal is not inclined to consider the same and express any opinion thereon at this stage.
9. In the above view of the matter, I think that it would meet the ends of justice, if, instead of rejecting the O.A. outright, I dispose of the same by issuing the following directions to the respondent:
(i) The respondent shall consider and decide the applicants representation dated 20.6.2014 by passing a speaking order within two months from today.
(ii) If the respondent fails to consider and decide the applicants representation dated 20.6.2014 within two months days from today, the below benchmark ACR of the applicant for the year 2007-08 shall be completely ignored and consequential action taken by the respondent immediately on expiry of the said thirty days.
(iii) The respondent shall promptly communicate its decision to the applicant.
10. Even though the applicant has cited a number of case-laws, yet, in view of the finding that the O.A. as laid by the applicant is not maintainable, being hit by Section 20 of the Act and the disposal of the O.A. in the manner indicated above, I am not inclined to discuss in detail the arguments advanced and the applicability of the case-laws relied on by the applicant.
11. With the above observation and direction, the O.A.is disposed of. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN