Central Administrative Tribunal - Chandigarh
Mrs. M.R. Nath vs Union Of India (Uoi) And Ors. on 12 May, 2003
Equivalent citations: 2004(1)SLJ7(CAT)
ORDER
O.P. Garg, J. (Vice Chairman)
1. After qualifying the All India Service competitive examination of the year 1968, the applicant Mrs. M.R. Nath came to be inducted to Indian Defence Accounts Service (for short 'IDAS') and has been given the badge of 1969 batch. In course of time, she came to be promoted to the post of Controller of Defence Accounts which post was up-graded in the year 2000 from the pay scale of Rs. 18400-22400 to that of Principal Controller of Defence Accounts (for short 'PCDA') in the pay scale of Rs. 22400-24500. The cadre of the officers of IDAS is governed by the Rules called the Indian Defence Accounts Service Rules, 2000. There are seven posts of PCDA as per Schedule I of the Rules. The next higher post is that of Additional Controller General of Defence Accounts (for short ACGDA) which is to be filled "by promotion on the basis of selection by merit" from amongst the officers managing the posts carrying the pay scale of Rs. 22400-525-24500. For filling the two vacant posts of ACGDA, A Departmental Promotion Committee (DPC) was convened on 29.4.2002. In view of the revised guidelines notified by the Government of India, Department of Personnel and Training dated 8.2.2002, the bench mark for promotion to the post in the revised pay scale of Rs. 12000-16500 and above continued to be 'very good'. The guidelines further provided that the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench-mark and accordingly grade the officers as 'fit' or 'unfit' only. Only those who are graded "fit" (i.e. who meet the prescribed bench-mark) by the DPC shall be included and arranged in the select panel in order of their inter-se seniority in the feeder grade. Those officers who are graded 'unfit' (in terms of the prescribed bench-mark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded 'fit' (in terms of the prescribed bench-mark) by the DPC.
2. The applicant who was working as PCDA in the pay scale of Rs. 22400-24500 was eligible under the Rules for consideration for promotion to the post of ACGDA. On the basis of the Annual Confidential remarks of the applicant for the period 1996-97 to 2000-2001 (five years), the DPC in the light of the revised guidelines categorised the applicant as 'unfit' as she was not able to meet the bench-mark. The respondent No. 4 Shri V.K. Mishra who admittedly is junior to the applicant was recommended for promotion to fill one of the posts of ACGDA. Accordingly, the Appointments Committee of the Cabinet approved his promotion to the post of ACGDA in the pay scale of Rs. 24500-26000, as is evident from the order dated 23.8.2002 (Annexure A-1).
3. Aggrieved, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, alleging that her case for empanelment to the post of ACGDA should have been considered by the DPC as there was nothing adverse against her. She has maintained that throughout her career she has earned promotions in due course and her work and conduct has always been appreciated and that at no point of time any deficiency or defect in the standard of her performance was noticed or communicated to her. It is also alleged that she could not be selected for appointment to the higher post of ACGDA as Respondent No. 5 Shri M. Kumara Swami had a pique/grudge against her and since he was a member of DPC which was convened a few months before his retirement, she fell prey of his malafides.
4. The short question raised on behalf of the applicant is whether the applicant could be superseded by a junior officer in the matter of promotion particularly when the applicant has put in 33 years of outstanding service and nothing adverse was ever conveyed or communicated to her. The relief sought by the, applicant is that the promotion of Respondent No. 4 as contained in letter dated 23.8.2002 (Annexure A-1) be quashed with a declaration that she is entitled to be promoted to the post of ACGDA with effect from the said date with all consequential benefits.
5. The respondents No. 1 to 3 have filed a joint written statement while separate written statements have been filed by Shri V.K. Mishra, Respondent No. 4 and the Secretary, Union Public Service Commission, Respondent No. 6. Shri M. Kumara Swami, Respondent No. 5 has chosen not to file a written statement. The respondents have maintained that the promotion to the post of ACGDA is made on the basis of selection by merit and since the case of the applicant was duly considered by DPC and she was not found fit for promotion as she could not make the bench-mark, the O.A. is not misconceived. It is also stated that the allegations of malafide and bias against respondent No. 5 are mere ornamental and sweeping in nature. According to the respondents, only adverse remarks are required to be communicated and since DPC is entitled to lay down its own procedure taking into consideration the guidelines issued by the nodal department of Government of India. The respondents have further maintained that the applicant though did not have any adverse remarks, she could not reach the bench-mark and, therefore, was not considered for promotion to the post of ACGDA. The respondent No. 4 has, in particular taken the stand that the DPC after considering the entire service record of the applicant and other candidates including respondent No. 4, found that the applicant's case was below the bench-mark and, therefore, treated her as 'unfit' for the post of ACGDA.
6. We have heard Mr. D.R. Sharma, learned Counsel for the applicant, Mr. Namit Kumar, learned Counsel appearing on behalf of respondents No. 1 to 3, Mr. R.N. Raina, learned Counsel for respondent No. 4 and Mr. H.C. Arora, learned Counsel for the respondent No. 6 at considerable length and have also perused the material placed before us.
7. It is an indubitable fact that promotion to the post of ACGDA is on the basis of selection by merit. The eligible officers for the promoted posts are those who are holding the posts carrying the pay scale of Rs. 22500-24400. The applicant and the respondent No. 4 at the relevant time were working on the post of PCDA and were, therefore, eligible for consideration for promotion. In our quest to do complete justice into matter, we called for the relevant records particularly the annual confidential reports both of the applicant as well as Shri V.K. Mishra, respondent No. 4, who was selected for promotion. The gist of the ACRs of both the applicant as well as respondent No. 4 is reflected as below:--
From a bare comparison of the above annual confidential remarks, it would appear that while shri V.K. Mishra had been graded 'Outstanding' twice, the applicant did not earn this trade. Undoubtedly, the record of Shri V.K. Mishra is far superior than that of the applicant and, therefore, as a result of comparative merit, he though junior to the applicant made a march over her and to this extent the decision of the DPC cannot be challenged or faulted by the applicant.
8. Mr. D.R. Sharma, learned Counsel for the applicant pleaded the case on behalf of the applicant from an entirely different angle. His submission was that since the applicant had never any adverse remarks as no communication was ever made to her, she being senior to Shri V.K. Mishra could not have been superseded and, in any case, if there has been adown-grading of the annual confidential remarks from 'Very Good' to "Good", they ought to have been communicated to her so that she could have made amends or improve her performance. Mr. Sharma placed emphatic reliance on the observations of the Apex Court in the case U. P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., 1996(33) A.T.C. 217, ass well as a host of other decisions of the various Benches of this Tribunal including B.L. Srivastava v. Union of India and Ors., decided on 26.8.2000 and Y.S. Arora v. Union of India and Ors. in O.A. No. 1570/2001 decided on 7.5.2002 by the Principal Bench, New Delhi and of this Bench in the case of Smt. Santosh Bhagat v. Union of India and Ors. in O.A. No. 799/2000 decided on 20.11.2002 to support contention that the remarks which fall short of the bench-mark though not adverse are required to be communicated to the concerned officer and since they were not communicated, they could not be considered to the detriment of the applicant. A complete answer to the submission made by Mr. Sharma and to the various decisions referred to by him is to be found in the decision of the full Bench of Mumbai Tribunal in the case of Manik Chand v. Union of India and Ors. in O.A. No. 559 of 2001 decided on 23.7.2002 (2002(3) A.T.J. Page 268). The following issue was before the Full Bench for consideration:--
"In the case of selection, where a particular bench mark has been prescribed, whether any gradings in the ACR which fall short of bench mark need to be communicated to the reportee even though the grading/report perse may not be adverse.?"
After going all the earlier decision on the point rendered by different Benches of the Tribunal, the reference was answered in the negative and the considered view of the Full Bench is that there is no need to communicate the non-adverse remarks or grading to the concerned government servant. Besides, the government servant only has a right to be considered for promotion and not a right for actual promotion or selection. There is also an authoritative pronouncement by a Division Bench of High Court of Punjab and Haryana, by which we are bound, in the Writ Petition No. 13024-CAT of 2002 in the case of Union of India and Ors. v. M.S. Preet and Anr. decided on 22.9.2002. In that case, this Tribunal relying on judgment of the U.P. Jal Nigam and various other decisions had held that the average entries recorded in the ACRs of the original applicant M.S. Preet (Respondent No. 1 in the writ petition) for the years 1994-95 to 1998-99 were liable to be ignored because the same had not been conveyed to him. The case of respondent No. 1 was directed to be reconsidered. The Hon'ble High Court, in unequivocal terms, has held that the entertaining the plea of respondent No. 1 by the Tribunal is per se erroneous and legally unsustainable and the direction given by it for re-consideration of the case of respondent No. 1 for promotion under BCR scheme was liable to be set aside. As regards the decision of the Apex Court in U.P. Jal Nigam's case, it was held that it had no bearing in the case of respondent No. 1 as the Supreme Court had considered the question whether the entries recorded in the ACRs can be downgraded without giving any notice and opportunity of hearing to the affected employee. It was held by the Division Bench in M.S. Preet's case that the orders passed by the Principal Bench of the Tribunal which are apparently based on the decision of the Supreme Court in the case of U.P. Jal Nigam (supra) cannot be treated as laying down correct law and the same cannot be made basis for up-holding the impugned order.
9. The learned Counsel for the applicant further placed reliance on the earlier decision of Division Bench of Bombay High Court in the case of Dr. Binoy Gupta v. Union of India and Ors., 2002(3) A.T.J. 7, in which direction was given to convene a review DPC for reconsideration of applicant's case by ignoring the ACRs of the review applicant for the years 1995-96, 1996-97 and 1998-99 and to promote him if found suitable. This decision proceeded on an entirely different footing. In that case, the remark 'Very Good' made by the Reporting Officer in the year 1995-96 was downgraded by the Reviewing Officer as 'Good.' The down-grading of the remark without assigning any reason was found to be illegal and in-operative as it was never communicated to the applicant. This decision of the Mumbai High Court cannot be of any assistance to the applicant and reliance thereon is mis-placed.
10. Now let us examine as to what has been observed by the Apex Court in the case of U.P. Jal Nigam (supra). The oft-quoted observations on which reliance has been placed in a plethora of decisions are as follows :
"We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect an adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be ah undesirable situation. All the same the sitting of adverseness must, in all vents, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain."
The above observations proceeded on the conclusion arrived at by the Apex Court after perusing the service record of the respondent Prabhat Chandra Jain that no reason for the change of the remark was mentioned. In view of the decision of the Apex Court, if there is a change or variation in the remarks then the authority recording the confidential remarks is to record reasons for such downgrading and to inform the said officer in the from of an advice. The above observations are, therefore, not of universal application which came to be made in an entirely different context. The Hon'ble Apex Court was considering the question of regulation of system of recording annual confidential reports prevalent in U.P. Jal Nigam's case. This position was clarified by the Apex Court by observing "what we say in this order shall not only cover the case of first respondent but shall also regulate the system of recording annual confidential reports prevalent in U.P, Jal Nigam the first applicant herein." The observations of the Apex Court cannot be applied in a mechanical manner to a case where gradation is done by the DPC on the basis of the service record. The DPC fixes its own norms and makes an independent assessment and arrives at a grading taking into account the totality of performance. Thus if a government servant has consistently good record, but does not achieve the benchmark, the DPC does not hold him suitable. If such grading arrived at by DPC were to be communicated to the concerned government servant, perhaps, no purpose would be served except to bring it to the knowledge of the concerned person because the entries in all the five ACRs which are considered by the DPC will have to be communicated, if they are treated as adverse, even though they may not be adverse in the strict sense. The Government servant cannot be expected to improve his performance during the previous four years if informed after a period of five years. Therefore, conveying of the remarks for improving the performance for promotion may not serve the purpose because the assessment by the DPC is not to be communicated. There is yet another aspect of the matter. The confidentiality is the hall-mark in the maintenance of confidential roll. The officer against whom the entries are made is not expected to know the contents of the entry. This rigour is relaxed only if an adverse entry is made. In such cases, however, it has to be communicated to afford him an opportunity to make a representation, but not in cases where he falls short of bench-mark for promotion. The decision is Jal Nigam's case does not specifically lay down the law is regard to whether such gradings which are below the bench-mark are required to be communicated to the concerned government employees. The gradings which fall short of the bench-mark are not required mandatorily to be communicated to the concerned officer/employee. In a recent decision of this Tribunal in the case of Ashok Kumar Garg v. Union of India, in O.A. No. 1066/PB/2002 decided on 25.4.2003, we have taken the view placing reliance on the decision of the Punjab and Haryana High Court in the case of M.S. Preet (supra). Full Bench decision in the case of Manik Chand (supra) and the earlier Full Bench decision of Hyderabad in the case of V. Pallam Raju v. Union of India and Ors. ATFBJ 1994-1996 page 148 that the remarks which are not adverse are not required to be communicated. In Manik Chand's case (supra), the practical aspect of communication or otherwise of the gradings was also considered. In para 16 of the judgment, the Full Bench posed to itself a question whether it would be practicable to communicate every remark/grading in all the ACRs continuously in respect of all the persons'? It was observed that there will be thousands of employees in whose cases, such entries may need to be communicated. It would require scrutiny of the ACR dossier to find out whether the person concerned would meet the bench mark or not. Also not every person would be eligible for promotion. Only those, who would be coming in the zone of consideration will need to be considered/Also, it will depend upon the number of vacancies. Thus, the Full Bench concluded that communication of remarks/grading which are not adverse per se, but which fall short of the bench mark would be a gigantic exercise requiring lot of man power and consuming lot of time. The effort may not be commensurate with the result to be achieved.
11. What flows from U.P. Jal Nigam's case is that if there is any variation of change i.e. where there is a steep fall or downgrading in the remarks made by the Reviewing Officer or the Accepting Officer in relation to the remarks made by the Reporting Officer in that event, communication may be necessary. In the present case, after having waded through the annual confidential remarks of the applicant, we find that the Reviewing and the Accepting Officers have in all the years accepted and concurred with the grading of the applicant made by the Reporting Officer. In the year 1997-98, the applicant was graded as 'Very Good' and in all the subsequent years thereafter upto 31.3.2001 she was categorised as 'Good' by the Reporting Officer. The Reviewing Officer as well as Accepting Officer concurred and affirmed the grading made by the Reporting Officer. There was at no point of time downgrading of the applicant by the Reviewing/Accepting Officer. In view of this stark reality, the observations made in U.P. Jal Nigam's case are not attracted to the case of the applicant.
12. A short and swift reference may be made to the submission made on behalf of the applicant that since the applicant has not earned any adverse entry and her record has been consistently good, she could not have been superseded by her junior i.e. Respondent No. 4 Shri V.K. Mishra. If it were a case of promotion based on seniority subject to the rejection on the ground of being 'unfit.' the argument would have been workable. But this fact cannot be lost sight of that promotion to the post of ACGDA is, as said above "on the basis of selection by merit" for which the bench-mark is 'Very Good.' On account of the fact that the applicant has been categorised as 'Good' during the last three years and she was graded as 'Very Good' only in two years, she could not achieve the bench-mark and, therefore, in view of the guidelines issued by the nodal authority, she was to be treated as 'unfit.' In the matter of selection, as held by the Full Bench In Manik Chand's case (supra), what matters is comparative merit, i.e. the better person wins. It is likely that a person may achieve the bench-mark grading and yet may not get selected. It is a competition amongst the eligible candidates (who have made the bench-mark), when it comes to selection. In any case, the merit has to get precedence over seniority in respect of promotion based on selection. If a Junior officer is more meritorious and superior in performance, he would certainly stage a march over his seniors. For example, if there are seven persons who fulfil the requirement of the bench mark i.e. 'Very Good', in that event if the junior most officer is adjudged on comparison of the merits as more meritorious, he would be selected regardless of the fact that there are six other persons senior to him who had otherwise achieved the bench-mark. The submission on behalf of the applicant that he being the senior was entitled to be empanelled in preference to Respondent No. 4 who is her junior is, to say the least, fallacious and untenable.
13. Certain scathing remarks have come to be made by the applicant against her superior namely, Shri M. Kumara Swami, former Controller General of Defence Accounts. We have sifted the various averments on the point and find that they are not only casual, but scrappy and jumpy. What, applicant proposes to reflect or establish from Annexures A-5, A-6, A-7 and A-8 is neither here nor there as these letters do not smack of bias or prejudice against her by respondent No. 5. The correspondence of the nature relied upon by the applicant to establish malafides/bias against respondent No. 5 is quite normal in day to day official work. The respondent No. 5 had no axe to grind n the matter. We are not impressed by the wild allegations of impropriety made by the applicant against respondent No. 5 who has since retired from the apex post of the department. Even otherwise, respondent No. 5 cannot be expected to have such a monstrous capacity as to manoeuvre the things to feed fat his grudge against the applicant. If any, by mobilising the other members to fall in line with him. Incidentally, the DPC in this case was chaired by the Chairman of the Union Public Service Commission. The other two Members were Secretary, Ministry of Defence and Financial Advisor Defence Services. The decision taken in the matter was unanimous. In the circumstances, it was not possible for respondent No. 5 to carry out his wishes if at all the allegations of the applicant that he was biased against her is taken to be true. The bald allegation of bias or malafide made by the applicant against respondent No. 5 are unfounded, groundless and baseless. A passing reference may also be made to the absurd suggestion made by the applicant about the gender bias. The fact that the applicant has risen to the post of PCDA, in normal course negatives her plea of gender bias.
14. Now it is the time to consider a very pertinent and plausible plea raised on behalf of the respondents with regard to exercise of power of judicial review by this Tribunal. It was pointed out that the DPC is an expert body, the members, of which are were fully equipped and qualified to deal with the assessment and gradation of the applicants on the basis of their performance as reflected in their entire service record including the ACRs. It was suggested that this Tribunal is not supposed to appraise and re-appreciate the findings of the DPC as an Appellate Court. The submission made on behalf of the respondents is not only weighty, but finds strength from a series of decisions of the Apex Court. It is well settled that offer of assessment and the grading made by the DPC cannot be faulted or interfered with by this Tribunal unless it is established that the Committee has acted in a mala fide or capricious mariner. A reference may be made on the celebrated observations made in the case of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR 1990 SC 434, which reads as follows:
"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
The above observations came to be repeated, reiterated and followed in subsequent decisions of the Apex Court in the case of State of Madhya Pradesh v. Srikant Chaphekar, 1992(5) S.L.R. 635=1992(3) SLJ 73 (SC) in which the view taken was that the Tribunal was wholly unjustified in reaching the conclusion that the remarks in the Annual Confidential Report were vague and of general nature and in any case the Tribunal overstepped in its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the officer his promotion to the post of Deputy Director. It was further ruled that it is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis; it is for the DPC to evaluate the same and make recommendations based on such evaluation. Similar view was taken in the case of Smt. Nutan Arvind v. Union of India and Anr., 1996(1) S.L.R. 774. The observations made in para 6 of the said decision read as follows:
"6. The DPC which is a high-level committee, considered the merits of the respective candidates and the appellant, though considered, was not promoted. It is contended by learned Counsel for the appellant that one K.S. Rao was the officer at the relevant time to review the performance of the appellant whereas in fact one Menon had reviewed it. The latter was not competent to review the performance of the appellant and to write the confidentials. We are afraid we cannot go into that question. It is for the DPC to consider at the time when the assessment of the respective candidates is made. When a high-level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, this Court cannot sit over the assessment made by the DPC as an Appellate Authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is not competent to write, the confidential is for them to decide and call for report from the proper officer. It has done that exercise and found the appellant not fit for promotion. Thus we do not find any manifest error of law for interference.
In the case of Durga Devi and Anr. v. State of H.P. and Ors. AIR 1997 SC 2618, the Hon'ble Supreme Court pointed out that the power to Judge comparative merits of candidates and fitness for posts is the function of the duly constituted Selection Committee, and the Tribunal cannot sit as an Appellate Court and quash section by itself scrutinising comparative merits of candidates. There is yet another decision in the case of Anil Katiyar v. Union of India and Ors. 1997(1) S.L.R. 153=1997 (1) SLJ 145 (SC), in which the scope of judicial review was considered by the Apex Court. Para 4 of the report runs as follows:--
"4. Having regard to the limited scope of judicial review of the merits of a selection made for appointment to a service or a civil post, the Tribunal has rightly proceeded on the basis that it is not expected to play the role of an Appellate Authority or an umpire in the acts and proceedings of the DPC and that it would not sit in judgment over the selection made by the DPC unless the selection is assailed as being vitiated by malafides or on the ground of its being arbitrary. It is not the case of the appellant that the selection by the DPC was vitiated by mala fides."
In the case of Union of India v. Samar Singh and Ors., 1997(1) S.C.T. 392=1997(1) SLJ 56 (SC), placing reliance on the earlier decision in the case of Dr. Jai Narain Misra v. State of Bihar and Ors., 1971(1) S.C.C. 30 and the observations quoted in Dalpat Abasaheb Solunke and Ors. (supra), the Apex Court has held that the Tribunal has no jurisdiction to hold an enquiry into the process of selection and comparative merits of the candidates such as evaluation of qualities, merit, competence, leadership and flair for participation in policy making process as it is for the selecting agency members which have the expertise in the field to assess specific suitability of the officers for a post.
15. In the light of the consistent and firm view that this Tribunal can not make its own assessment of the comparative merits of the individual officers and the matter is to be left for determination of the expert DPC which comprises experts, we find that the comparative assessment of the applicant as well as respondent No. 4 made by the DPC, headed by the Chairman, UPSC, cannot be faulted on any ground whatsoever. The allegation of malafide against one of the members of the DPC have been found to be baseless. The selection of respondent No. 5 cannot in any manner termed as capricious or arbitrary. The applicant does not have a vested right for promotion to the post of ACGDA. He simply had aright of promotion. Her case was considered, but since she was found to have not met the bench-mark, she was not selected. The Appointment Committee of the Cabinet was assisted by a DPC which was headed by the Chairman of the UPSC which made the selection considering all eligible officers in the light of the guidelines issued by the nodal department. In such a matter, we are of the considered view that interference would not be justified even if a different view on the selection made may possibly be taken.
16. In the conspectus of the above discussion, we find that the applicant has no case to challenge the promotion of respondent No. 4 Shri V.K. Mishra to the post of ACGDA. The O.A., therefore, turns out to be devoid of any merit and substance. It is accordingly dismissed without any order as to costs.