Central Administrative Tribunal - Allahabad
Dr Pradeep Kumar Tandon vs M/O Health And Family Welfare on 11 May, 2023
(Reserved on 03.05.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Pronounced on 11th day of May 2023
Original Application No. 553 of 2014
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Dr. Pradeep Kumar Tandon, aged about 61 years, Son of Sri Gopi Krishna
Tandon, R/o 43/8, Sardar Patel Marg, Civil Lines, Allahabad.
. . .Applicant
By Adv : Shri Ashish Srivastava
VERSUS
1. Union of India through its Secretary, Ministry of Health and Family
Welfare, Nirman Bhawan, New Delhi.
2. Addl. Director, Central Government Health Scheme, Sangam
Place, Allahabad.
3. Dr. Deen Dayal Tarai, Presently working as Medical Officer, CGHS,
Allahabad on contract basis.
. . . Respondents
By Adv: Shri Bablu Singh
ORDER
Delivered By:- Hon'ble Dr. Sanjiv Kumar, Member (A) By means of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the orders dated 22.10.2010, 06.11.2012, 23.01.2014 and 04.04.2014 passed by the respondent no. 1 and a direction to the respondents to promote him at SAG level for the panel year 2008-09 in pay scale of Rs. 37,400-67,000/- +G.P. Rs. 10,000/- w.e.f. 29.10.2008. Direction has also been sought to respondents to consider the grading for the year 2001-02 and ignore the grading for the year Page 1 of 11 2006-07 while considering promotion of the applicant as the reporting and reviewing officer has retired from service on the date of issue of letter dated 29.07.2010 calling representation from the applicant. Prayer has also been made to direct respondents to upgrade the ACR of the applicant for the year 2006-07 and 2007-08 from "Good" to "Very Good".
2. The facts of the case of the applicant, in brief, are that the applicant was initially appointed as Medical Officer, Central Government Health Scheme (in short CGHS), Allahabad and in due course, he was promoted in Junior Administrative Grade (in short JAG). It is stated that in view of 6th CPC recommendations, the officers in JAG with 8 years of regular service in the grade including NFSG and officers with 17 years regular service in Group „A‟ post in the service out of which at least 4 years regular service should be in JAG including service rendered in the NFSG of JAG were eligible for promotion to Senior Administrative Grade (SAG). The respondents published a list of eligible candidates in the month of January / February 2010 for consideration of their promotion to SAG in accordance with the aforesaid eligibility criteria. It is further stated by the learned counsel for the applicant that on 29.07.2010 (Annexure A-5), the applicant was served with a letter issued by the respondent no. 1 observing that he has been assessed "good" by the reporting and reviewing officer in the ACR for the year 2006-07 which is below the bench mark for the promotion to Super Time Grade in the General Duty Medical Officer sub cadre of Central Health Services. Thereafter the applicant preferred his Page 2 of 11 representation on 09.08.2010 stating that he has been working in CGHS since 1981 and has never been given any adverse remark in any ACR before 2006-07. It is also stated by the applicant in the said representation that the adverse remark in the year 2006-07 has already been expunged vide order dated 19.01.2010 by the respondent no. 1. On 31.07.2008, the applicant also received a communication of adverse remark in the ACR for the period 2006-07 and the applicant submitted his representation against the aforesaid adverse remark on 30.09.2008 through proper channel stating therein that during the period 2006-07, he has performed his duties with utmost sincerity which has already been reflected by the reporting officer. The representation of the applicant was forwarded to the respondent no. 1 vide letter dated 01.10.2008 (Annexure A-10) with request to expunge the adverse remarks from the ACR for the period 2006-07 on the ground that during the last 1 and 1/2 years, it has been observed that the officer has taken sincere steps to streamline his functioning and his performance has been substantially improved. It has already been stated in the ACR that the officer is sincere, dedicated and motivated and vide order dated 19.01.2010 (Annexure A-11), the adverse remark in the ACR for the period 2006-07 was expunged.
3. Learned counsel for the applicant stated that the respondent no. 1 on 22.10.2010, published a list of 533 Medical Officers of the GD Sub Cadre of Central Health Services for the panel year 2008-09 to the post of SAG, whereby a large number of juniors to the applicant were allowed promotion but it was Page 3 of 11 denied to the applicant on the ground that his ACR for the crucial year i.e. 2006-07 was assessed as „Good" which is below the benchmark i.e. „Very Good" for promotion to the post of SAG. It is further stated that vide office memorandum dated 07.07.2011, the Director, Ministry of Health and Family Welfare annexing therewith a list of concerned officer informed that the competent authority has considered the representation of CHS Doctors for up-gradation of below benchmark grading of ACRs. In the said list, the name of the applicant is placed at Sl. No. 87 with observation of retention of "Good Grading" for the year 2006-07 after consideration of his representation. It is also stated that the reporting and reviewing officer of the applicant since were already retired from service, and the representation of the applicant was decided by the competent authority without their inputs. It is also stated that after receiving communication dated 07.07.2011, the applicant preferred a fresh representation on 25.07.2011 through proper channel which was forwarded to the respondent no. 1 by the respondent no. 2 vide letter dated 27.07.2011 and vide letter dated 02.08.2011, it was forwarded to the competent authority to upgrade the below benchmark ACR grading for the year 2006-07 for promotion to SAG. Similarly, the applicant was also served with the adverse remarks for the year 2007-08 which was also represented through proper channel and forwarded to the competent authority. It is also contended that although the reporting officer has recommended to up-grade the same from "Good" to "Very Good" and the applicant was never given any memorandum Page 4 of 11 regarding his shortcomings during the period 2006-07 or 2007- 08 and as per the settled principle of law and extant rules, the applicant should have been given the benefit of considering his earlier ACR for the purpose of promotion as his ACR of 2006-07 were vitiated due to non-availability of concerned authority who had retired and who had to write the said ACR. Hence, based on the said ground, the applicant seeks relief to set aside the impugned orders of promotion so far as it is related to the applicant and to direct the respondents to consider his ACR for the period 2001-02 instead of 2006-07 for the purpose of DPC for promotion.
4. Learned counsel for the applicant argued that non- communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or other service certainly has a civil consequences because it may affect his chance for promotion or get other benefits. Hence, such non- communication would be arbitrary and violative of Article 14 of the Constitution of India. Therefore, the entries "Good" should not have been taken into consideration for promotion to higher grade as it was not communicated in time. In support of his contentions, learned counsel for the applicant has placed reliance to the case of Dev Dutt Vs. Union of India & Ors -2008 (7) Scale 403 and judgment dated 22.10.2008 passed in Civil Appeal No. 6227/2008 -Abhijit Ghosh Dastidar Vs. Union of India & Ors wherein the Apex Court has laid down the ratio in connection with the action to be taken in cases of ACR entries which are below the bench mark. Referring to the case of Dev Page 5 of 11 Dutt (Supra) he stated that it has been clearly laid down by the Apex Court in that in case , in the ACR, if a person has been given grading below the bench mark for any of the years for which his ACRs have been taken into account for consideration in D.P.C, it is essential for the employer to communicate such remarks / grading to the concerned person and after receiving his representation decide his case accordingly. He stated that if such entry is un-communicated then it would be unfair and violative of natural justice. The learned counsel went on to submit that this judgment was covered by the Hon‟ble Apex Court in the case of Abhijt Ghosh Dastidar Vs. U.O.I (Supra) wherein it has been held that in the event below bench mark grading is given in ACR and if the same was not communicated, such ACR‟s are to be ignored. In view of the above position, it has now become incumbent upon the respondents to communicate any entry of any of the years to be taken into account for consideration by the DPC, which is below the bench mark prescribed for the promotion. Learned counsel for the applicant further quotes the judgment of Principal Bench of this Tribunal dated 11.08.2009 passed in OA No. 1684/2009 - H.S. Acharya Vs. U.O.I & Ors.
5. The respondents filed counter reply wherein basic facts of the case have not been denied. However, it is stated that as the applicant‟s ACRs, which were placed before the DPC, were below par entry of "Good" whereas the benchmark was "Very Good", hence the applicant was not found eligible for being considered for the said merit based promotion. It is further stated that the Page 6 of 11 Committee had independently gone through the ACRs and have formed their own opinion about the suitability of the officer for promotion and accordingly based on his below benchmark entry of "Good", the officer was not considered fit for promotion. The competent authority has examined his departmental appeals against the entries of ACRs although adverse entries were expunged but his entries, which were below benchmark were not in any way modified and the said entries have attained finality, hence there is nothing which the DPC can consider afresh and there is no merit in the case of the applicant.
6. The applicant has filed rejoinder affidavit wherein he has reiterated the facts of the OA and he again emphasized that for the year 2006-07, the entry of "Good" could not be re-evaluated only because the authority, who has to write the ACR, has already retired and hence as per the ratio of the judgment and extent rules, his 2006-07 ACR could have been ignored and one year earlier ACR, which was available on record, should have been taken for the purpose of DPC but the authorities have not acceded to his request.
7. Suppl. Counter has been filed by the respondents where they reiterates the facts which they have made earlier in the counter affidavit. They emphatically say that instructions issued vide DOPT OM No. 21011/1/2006-Estt.(A) dated 28.03.2006, adverse entries / remarks recorded in the ACR Page 7 of 11 of the official were to be communicated to him for further improvement in his performance and the official concerned had also an option to make a representation against the adverse remarks within the prescribed time limit. Accordingly, for adverse entries, the officers were intimated but there was no provision to communicate the below benchmark grading at that point of time, it was not communicated and only after a delay, the same was communicated and because the officers, who had to evaluate the same, had retired, it could not be re- evaluated. But they say that the representation dated 09.08.2010 was considered by the competent authority and it was decided to retain his below benchmark grading and the applicant was informed accordingly. The respondents further stated that the DOPT OM dated 13.04.2010 envisaged that grading in the APAR and the views of the reporting and reviewing officer should be taken, if they are still in service, on the point raised in the representation vis-à-vis remarks / grading given by them in the APAR and clearly the views of reporting and reviewing officers have to be taken, if they are still in service, otherwise the representation had to be decided by the competent authority objectively in a quasi judicial manner on the basis of the material placed before it. Hence, they submitted that there was no need to obtain opinion of original reporting and reviewing authorities. They say that action of the respondents is as per rules and procedure and accordingly the OA may be dismissed being devoid of merits. Page 8 of 11
8. The case came up for final hearing on 03.05.2023. Shri Ashish Srivastava, learned counsel for the applicant and Shri Bablu Singh, learned counsel for the respondents were present and both were heard. We have carefully gone through the entire record, and considered the rival contentions.
9. It is evident from record that the basic fact of the case is not disputed that the applicant having below benchmark entry of "Good" in his ACR for the year 2006-07 was not considered for promotion and his appeal to alter the entries of the said year could not be acceded to as the concerned reporting and reviewing authorities had already retired from service and hence, the competent authority decided to retain the said entry unchanged and further decided not to accede the request of the applicant to reconsider his case for promotion. The applicant has placed reliance on the judgment dated 11.08.2009 passed by the Principal Bench of this Tribunal in OA No. 1684/2009 - H.S. Acharya Vs. UOI & Ors which is being reproduced below: -
"H.S Acharya, the applicant herein, has filed this original application under section 19 of the Administrative Tribunals Act, 1985, seeking direction to be issued to the respondents to re- consider his case for promotion to the post of Chief Commissioner of Income Tax. He also called in question the recommendations, made by the Departmental Promotion Committee held on 18.11.2008, holding him unfit for promotion to the post as mentioned above.
2. In view of the controversy involved in this case, there is no need to give facts in detail. However, suffice it to mention that the applicant belongs to 1976 batch of IRS. He was promoted on Page 9 of 11 the basis of seniority and merit upto the rank of Commissioner of Income Tax. On 18.11.2008, DPC for considering officers of 1975 and 1976 batches for promotion to the post of Chief Commissioner of Income Tax was convened in which the applicant was adjudged unfit for promotion on the ground that he had been graded as 'Good' for the year 2004-05, whereas the benchmark was 'very good' in respect of all five years from 2002-03 to 2006-07. It is the case of the applicant that once he has been graded as 'Good', which would be below benchmark from promotion to the post of Chief Commissioner of Income Tax, being adverse, the applicant ought to have been communicated the same, but that has not been done and he has been deprived of his right to make a representation against the same. In support of his contention learned counsel relies upon the decision of Full Bench of this Tribunal in the matter of Ashok Kumar Aneja vs. Union of India & ors. (OA No. 24/2007 decided on 07.05.2008) and the decision of Hon'ble Supreme Court in Dev Dutt Vs. Union of India & ors (SLP No. 7631/2002 decided on 12.05.2008) wherein the said view has been taken.
3. In view of the two judgments, referred to above, present matter appears to be covered in favour of the applicant. Normally in the circumstances as mentioned above, following the two decisions referred to above, we would have directed the respondents to communicate to the applicant his report for the year 2004-05, enabling him to make a representation against the same. However, we find that both the reporting and reviewing officers who initiated and finalized the report of the applicant pertaining to year 2004-05, have since retired. In similar circumstances very recently i.e. on 05.08.2009, we have taken a view, while deciding OA No. 592/2009 (Sanjay Kumar Vs. Union of India & Ors.), the DPC shall have to consider the report of an employee immediately preceding the first report which was under
consideration. That being so, we order that the review DPC shall be convened which would consider the case of the applicant for promotion to the post of Chief Commissioner of Income Tax by taking into consideration his ACR for the year 2001-02. Let the needful be done within a period of two months from today."
10. On simple perusal of above order and the case quoted therein, it is very clear that it is identical in facts to the case Page 10 of 11 before us. Hence, we have no doubt that the applicant has made out a clear case to interfere with the impugned orders. Accordingly, the OA is allowed and the impugned orders dated 22.10.2010, 06.11.2012, 23.01.2014 and 04.04.2014 are set aside to the extent they pertain to the applicant. The respondents are directed to have a review DPC for the applicant to consider his suitability for proforma promotion based on the ratio of the judgment (Supra) considering his ACR of 2001-02 instead of ACR for the year 2006-07 and if the applicant is found eligible, give him proforma promotion from the date of his immediate junior getting such promotion and to fix his pension and other consequential benefits accordingly within a period of three months from the date of receipt of certified copy of this order.
11. All associated Misc. Applications stand disposed off.
12. No order as to costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member (A) Member (J)
Anand...
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