Central Administrative Tribunal - Lucknow
Priya Punj Gupta vs Union Of India on 2 April, 2024
CAT,Lucknow Bench OA No. 332/00062 of 2014 PriyaPunj Gupta Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00062/2014
Order Dated: This, the 2nd day of April, 2024.
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Priya Punj Gupta, (Staff No. 90143), aged about 56 years, Son of Shri
M.C. Gupta, Resident of Quarter No. 2/Type V, Door Sanchar
Colony, Sector-D, Aliganj, Lucknow-226014.
.....Applicant
By Advocate: Shri Raj Singh
VERSUS
1. Bharat Sanchar Nigam Ltd.,
Through Its Chairman-Cum-Managing Director
Bharat Sanchar Bhawan, Janpath, New Delhi.
2. The Director (HRD)
Bharat Sanchar Nigam Ltd. Board,
Bharat Sanchar Bhawan, Janpath, New Delhi.
3. Principal General Manager (BW)Circle,
Bharat Sanchar Nigam Ltd., Corporate Office,
New Delhi.
.....Respondents
By Advocate: Shri G. S. Sikarwar
ORDER(ORAL)
Per Hon'ble Mr.Pankaj Kumar, Member-Administrative In this case relating to financial upgradation, the applicant seeks the following reliefs:
(i) This Hon'ble Tribunal may kindly be pleased to quash the order dated
02.09.2011, so for it relates to the applicant, issued by the office of respondent No. 3, by which the applicant has been granted financial up-gradation to Non-Functional Scale of Pay (E-9) of Rs. 62000- 80000(IDA) w.e.f. 13.04.2010 to the extent that the date referred in the Page 1 of 8 CAT,Lucknow Bench OA No. 332/00062 of 2014 PriyaPunj Gupta Vs. U.O.I. &Ors.
column date of grant of NF scale (w.e.f. 13.04.2010) and in place of that 11.06.2009 may be incorporated (Annexure No. A-1 to this O.A.).
(ii) The applicant further prayed that in the interest of justice the respondents may be directed to hold a review DPC for consideration of grant of Functional Scale of Pay (E-9) of Rs. 62000-80000(IDA) at par with his juniors w.e.f. 11.06.2009 with all consequential benefits like arrears of pay and pay fixation etc.
(iii) To direct the respondents to make the arrears of salary after granting the Non-functional Selection Grade w.e.f. 11.06.2009 along with 8 % interest thereon.
(iv) To pass such other orders which are found just, fit and proper under the circumstances of the case.
2. The facts of the case are that the applicant, who was initially appointed as Assistant Engineer in the erstwhile Telegraph Department with effect from 07.04.1981, got absorbed in Bharat Sanchar Nigam Limited (BSNL) in the year 2000. His juniors were granted financial upgradation to E-9 scale vide order dated 25.02.2010, but the case of applicant was not recommended on account of grading of 'good' in the Annual Confidential Report (ACR) for 2007-08 which was below the benchmark grading of 'very good'. The applicant's ACR for 2007-08 was reviewed by the respondents and upgraded to 'very good' vide order dated 19.01.2011. Subsequently, the respondents granted the applicant financial upgradation in E-9 pay scale (non-functional) with effect from 13.04.2010 vide order dated 02.09.2011. The applicant represented on 28.09.2011 for holding a review meeting of the Departmental Promotion Committee (DPC) for considering grant of financial upgradation from 11.06.2009, i.e., at par with his juniors. Not having received a favourable response, the applicant has preferred this OA.
3. It is the contention of the applicant that he is entitled for financial upgradation at par with his juniors following upgradation of his ACR for 2007-08 in line with the law laid down on 12.05.2008 by Page 2 of 8 CAT,Lucknow Bench OA No. 332/00062 of 2014 PriyaPunj Gupta Vs. U.O.I. &Ors.
Hon'ble Supreme Court in Dev Dutt vs Union of India &Ors (2008) 8 SCC 725.
4.1 The respondents state that the applicant was considered for financial ugradation by CPC in February, 2010 and was assessed 'unfit' as his ACR grading for 2007-08 was 'good' which was below the benchmark of 'very good'. As per office memorandum (OM) dated 13.04.2010 of the Department of Personnel & Training (DoPT), the below benchmark grading of the applicant for 2007-08 was communicated to him and after considering his representation, it was upgraded to 'very good'. A meeting of CPC was held in August, 2011 for considering grant of non-functional scale of E-9 with effect from 13.04.2010, i.e., the date of issue of DoPT's OM and the financial upgradation was granted with effect from 13.04.2010 vide order dated 02.09.2011.
4.2 It is further stated by the respondents that the applicant has based his case on Dev Dutt (supra). However, in SLP No. 15770 of 2009 Union of India vs A K Goel&Ors, Hon'ble Supreme Court has decided as follows:
"In view of the apparent conflict between the decisions of this Court in Dev Dutt vs Union of India &Ors 2008 (8) SCC 725 on the one hand and Satya Narain Shukla vs Union of India 2006 (9) SCC 69 and K M Mishra vs Central Bank of India &Ors 2008 (9) SCC 120, these appeals are referred to a Larger Bench..."
Accordingly, vide OM dated 27.04.2010, DoPT has directed that wherever petitions have been filed in the Courts to grant relief on the basis of the aforesaid decision of the Supreme Court in Dev Dutt case, the latest order of the Supreme Court in A K Goel case may be brought to the notice of the Court.
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It is further stated by the respondents that DoPT, vide OM dated 28.09.2012, has stated that the Supreme Court in the SLP in Uttam Chand Nahta's case (SLP Civil Appeal No. 29515 of 2010) by order dated 20/24 December, 2010 not only tagged the SLP with A K Goel case but also directed that status quo in DPC proceedings which was subject matter of dispute before the CAT/High Court, shall be maintained. In Uttam Chand Nahta's case, the Supreme Court has duly taken note of AbhijitDastidar case 2009 (16) SCC 146 while granting stay of the High Court order. In view of above, it is reiterated that wherever petitions have been filed on the basis of aforesaid decision of the Supreme Court in Dev Dutt case, the orders of the Supreme Court in Uttam Chand Nahta's case may be brought to the notice of the Court.
It is the contention of the respondents that in view of DoPT's OMs and as per direction of Hon'ble Supreme Court in the SLP in Uttam Chand Nahta's case, status quo has to be maintained in the DPC proceedings.
5. We have heard both the parties.
6.1 The entire legal controversy pertaining to this case has been discussed and settled by the Principal Bench of this Tribunal vide order dated 31.01.2014 in OA No. 4117 of 2014 V K Puri vs Union of India &Ors in the following manner:
"7. In Dev Dutt's case (supra), a two-Judge Bench of the Hon'ble Supreme Court held that every entry in the ACR of a public servant must be communicated to him/her within a reasonable period whether it is poor, fair, average, good or very good entry to achieve threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice.
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8. In the case of Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146, a three-Judge Bench of the Hon'ble Supreme Court, following Dev Dutt's case (supra), held in paragraph 8 of the judgment as follows:
"Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non- communication of remarks in the ACR of a public servant whether he is in civil, judicial, police or any other service(other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the remarks "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
9. In the case of Sukhdev Singh v. Union of India and others, Civil Appeal No. 5892 of 2006, another three-Judge Bench of the Hon'ble Supreme Court, in paragraph 8 of the judgment, held that the view taken in Dev Dutt's case (supra) is legally soundand observed, in paragraph 9, as follows:
"The decisions of this Court in Satya Narain Shukla vs. Union of India and others, (2006) 9 SCC 69, and K.M.Mishra vs. Central Bank of India and others, (2008) 9 SCC 120 and other decisions of this Court taking a contrary view are declared to be not laying down a good law."
10. In view of the above decisions of the Hon'ble Supreme Court in Dev Dutt's case, Abhijit Ghosh Dastidar's case, and Sukhdev Singh's case (supra), the provisions contained in DoP&T's O.M. dated 14.5.2009 and O.M. dated 13.4.2010 with regard to the applicability of the system of communication of the remarks in the ACR/APAR to the concerned officers with effect from the reporting period 2008-09 to be initiated after 1.4.2009 and consideration of the representation against the remarks and for upgradation of the below benchmark grading in the ACR/APAR, cannot be held to be in accordance with the law laid down by the Hon'ble Apex Court.
11. In support of the O.M. dated 13.4.2010 (Annexure A-1) and the decision dated 8.6.2012, impugned in the Original Application, the respondents have relied on an order dated 29.3.2009 passed by a two- Judge Bench of the Hon'ble Supreme Court in SLP (Civil) No.15770/2009, converted to Appeal Civil No.2872 of 2010, Union of India v. A.K.Goel and others, wherein their Lordships took note of the conflict between the decisions in Dev Dutt's case on one hand and the judgments of the Hon'ble Supreme Court in Satya Narain Shukla v. UOI, 2009(9) SCC 69 and Page 5 of 8 CAT,Lucknow Bench OA No. 332/00062 of 2014 PriyaPunj Gupta Vs. U.O.I. &Ors.
K.M.Mishra v. Central Bank of India and others, 2008(9) SCC 120 and referred the appeal to Larger Bench.
12. During oral arguments, the learned counsel for the respondents also produced the DoP&T's O.M. dated 27.4.2010, which reads thus:
"OFFICE MEMORANDUM Subject:-ACRs with below benchmark grading considered in past DPCs- reg.
The undersigned is directed to state that this Department has issued O.M. of even number dated 13.04.2010 that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPC contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. The representation is to be decided by the competent authority as per provisions in para 2 of aforesaid OM.
2. The Hon'ble Supreme Court in their judgment dated 12.5.2008 in Civil Appeal No.7631 of 2002 (Dev Dutt vs. Union of India) had held that the "good" entry in the ACR of the appellant which had not been communicated to him and considered in a past DPC which found him unfit for promotion, should be communicated for representation and if upgradation is allowed by the competent authority, he should be considered for promotion retrospectively by the DPC. When the petitions in SLP (Civil) No.15770/2009, now converted to Appeal Civil No.2872 of 2010 (Union of India vs. A.K.Goel and others) were called for hearing, the Supreme Court has taken note of the apparent conflict between the decisions of the Hon'ble Court in Dev Dutt case on one hand and the judgments of Supreme Court in Satya Narain Shukla Vs. UOI 2006(9) SCC 69 and K.M.Mishra vs. Central Bank of India &ors 2008(9) SCC 120 on the other hand and by their Order dated 29.03.2010, the Hon'ble Court has referred these appeals to a Larger Bench (copy attached).
3. In the light of the Orders issued by Hon'ble Supreme Court in the aforesaid SLP (Civil) No.15770/2009, Union of India Vs. A.K.Goel&ors, all Ministries/Departments are advised that wherever petitions have been filed in the Courts to grant relief on the basis of the aforesaid decision of the Supreme Court in Dev Dutt case, the latest orders of the Supreme Court in A.K. Goel case may be brought to the notice of the Court."
13. The applicant, on the other hand, submitted that the order dated 29.03.2010 passed by the Hon'ble Supreme Court in SLP (Civil) No.15770/2009, converted to Appeal Civil No.2872 of 2010 (Union of India vs. A.K.Goel and others) making a reference to the Larger Bench did not alter the proposition already pronounced by the Division Bench in Dev Dutt's case(supra) and that unless and until the same is overruled by the Larger Bench, the decision of the Division Bench remains the law laid down by the Hon'ble Supreme Court binding on all courts and authorities.
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14. In Commissioner of Customs, Calcutta, etc. etc. v. Indian Oil Corporation Ltd., the Hon'ble Supreme Court held in paragraph 25 as follows:
"...The law laid down by this Court will ensure uniformity in the decisions at all levels. By an express constitutional provision, the law declared by the Supreme Court is made binding on all the Courts within the territory of India (vide Article 141).Propriovigore the law is binding on all the tribunals and authorities."
15. In Sajit Kumar, P. and others v. The Chief Commissioner of Income Tax and others, 2004(2) SLJ 61 (CAT), a Division Bench of this Tribunal observed in para 6 of the judgment as follows:
"..Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all Courts. Similarly under Article 144, all authorities civil and judicial in the territory of India, are required to act in aid of the Hon'ble Supreme Court. As such, even if no O.M. is issued by the Nodal Ministry, the law declared by Hon'ble Supreme Court becomes binding from the date on which such law is laid down..
16. As noted earlier, in the case of Sukhdev Singh's case (supra), a three-Judge Bench of the Hon'ble Supreme Court, declared the view taken in Dev Dutt's case (supra) to be legally sound and the decisions in Satya Narain Shukla's case and K.M. Mishra's (supra) other decisions of this Court taking a contrary view are declared to be not laying down a good law. In view of this, the stand taken by the respondents in support of the DoP&T's O.M. dated 13.4.2010 (Annexure A-1) and the communication dated 8.6.2012, which are impugned in the O.A., is untenable."
(emphasis supplied) 6.2 Hon'ble Supreme Court, in Pankaj Prakash vs Union of India &Ors in Civil Appeal Nos. 5340-5341 arising out of SLP (C) Nos.
33462-33463 of 2019 has observed as follows vide judgment dated 10.07.2019:
"8. While assessing the rival submissions, we must, at the outset, notethat the law laid down by the two-judge Bench of this court in Dev Dutt (supra) has been reaffirmed by three judges in Sukhdev Singh (supra).In Sukhdev Singh (supra), this Court held:
"8. In our opinion, the view taken in Dev Dutt[DevDuttv. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC(L&S) 771] that every entry in ACR of a public servant mustbe communicated to him/her within a reasonable period islegally sound and helps in achieving threefold objectives.First, the communication of every entry in the ACR to a publicservant helps him/her to work harder and achieve more thathelps him in improving his work and give better results.Second and equally important, on being made aware of theentry in the ACR, the public servant may feel dissatisfied withthe same. Communication of the entry enables him/her tomake representation for upgradation of the remarks enteredin the Page 7 of 8 CAT,Lucknow Bench OA No. 332/00062 of 2014 PriyaPunj Gupta Vs. U.O.I. &Ors.
ACR. Third, communication of every entry in the ACRbrings transparency in recording the remarks relating to apublic servant and the system becomes more conforming tothe principles of natural justice. We, accordingly, hold thatevery entry in ACR--poor, fair, average, good or very good--must be communicated to him/her within a reasonableperiod."
9. The Union of India had also issued Office Memoranda on 14 May2009 and 13 April 2010 seeking compliance by all Ministries andDepartments. Moreover, on 19 October 2012, a specific communicationwas also addressed to public sector insurance companies. Evenindependent of these communications, the respondent was duty bound to comply with the law laid down by this Court. They cannot urge that the decision having been implemented from 2013-14, it has no application for the earlier years. The judgment of this Court is declaratory in nature."
(emphasis supplied) 6.3 The position brought out in the judgments above brings out unambiguously that the ratio decidendi in Dev Dutt (supra) as affirmed in Sukhdeo Singh (supra) holds sway and the respondents are duty bound to comply with the law as laid down in these judgments.
7.1 In view of the above facts and circumstances, this OA is disposed of with the direction that the respondents shall hold the meeting of DPC to review the date of grant of financial upgradation in E-9 scale to the applicant on the basis of his upgraded ACR for 2007-08 at par with his juniors and issue appropriate orders as per the law laid down in Dev Dutt (supra) as affirmed in Sukhdeo Singh (supra) within a period of three months from the date of receipt of certified copy of this order.
7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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