Central Administrative Tribunal - Gauhati
Udit Gupta vs Bharat Sanchar Nigam Ltd on 19 July, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application 040/251/2017
HON'BLE SMT. URMITA DATTA (SEN), JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
Shri Udit Gupta,
Superintending Engineer (Civil)
Office of Chief Engineer (Civil), BSNL,
Panbazar, Guwahati, Assam. PIN-
781001.
.......Applicant
-AND-
1. Bharat Sanchar Nigam Ltd.,
Represented by it's
Chairman & Managing Director,
Bharat Sanchar Bhavan, Janpath,
New Delhi- 110 001.
2. The Director (H.R.),
Bharat Sanchar Nigam Limited,
Bharat Sanchar Bhavan, Janpath,
New Delhi- 110 001.
---Respondents
DATE OF HEARING: 24.06.2024 DATE OF ORDER: 19.07.2024
Present:
For applicant(s): Sri M. Chanda & Smt. U. Dutta
For respondents: Sri G. Goswami, BSNL Advocate
O.A. No/040/251/2017
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ORDER
PER: DR. SUMEET JERATH MEMBER(A):
This is the second round of litigation. The instant application has been filed by Shri Udit Gupta, who at the time of filing the instant O.A in 2017 was working as Superintending Engineer (Civil) at Guwahati BSNL,Assam Circle seeking the following relief:
".1 That the Hon'ble Tribunal be pleased to set aside and quash the impugned order No. OA/310/1218 to 1220/2014/Udit Gupta/M (BW- III)/ Pt. dated 20.04.2017 (Annexure- A16) so far, the ACRs of the applicant for the period from 01.04.2006 to 31.03.2007 and 01.04.2007 to 20.09.2007 are concerned.
2 That the Hon'ble Tribunal be pleased to set aside and quash the impugned order No. OA/310/231/2014/Udit Gupta/M(BW-III)/Pt. dated 22.06.2017 (Annexure-A17).
3 That the Hon'ble Tribunal be pleased to declare that ACR/APAR periods of the applicant from 01.04.2006 to 31.03.2007, 01.04.2007 to 20.09.2007 and 2009-10 are NO ACR/APAR periods.
4. That the Hon'ble Tribunal be pleased to direct the respondents to promote the applicant as SE (Civil) on regular basis from the date of promotion of his batch mate and juniors by holding review DPC of the DPC held on 17.09.2013 by ignoring the ACR of 1.4.2007-20.9.2007 & APAR of 2009-10 (periods being No ACR/APAR periods) and by considering the ACR of balance portion of 2007-08 for the full year of 2007-08 and to treat gradings in all ACR/APARS as one level higher. 5 That the Hon'ble Tribunal be pleased to direct the respondents to give all consequential benefits with arrears of pay and allowances to the applicantincluding E-9 Scale of pay (Rs.62000-80000) from 01.01.2014 i.e. the date from which his batch mate and junior Shri H S Bisht have been given and to consider promotion to SAG/CE(Civil) with effect O.A. No/040/251/2017 3 from 27.07.2015 i.e. the date from which his batch mate and junior Shri H S Bisht was so promoted."
2. The factual matrix of the case as per the applicant is that he was promoted to the post of SE(Civil) vide DoT Order dated 6.9.2005 (implying vacancy year 2005-06) on adhoc basis for a period of one year which was subsequently extended indefinitely with effect from 06.09.2006 till further orders or till the date of retirement whichever was earlier vide BSNL order dated 30.11.2007. However, when regular promotion orders in the grade of SE(Civil) were issued by the BSNL Order dated 10.10.2013, his juniors (Shri HS Bisht & officers below him, total 40 junior officers) were promoted as SE(Civil) on regular basis with effect from17.9.2013. However, he was not promoted on regular basis at par with his juniors. As per existing rules and DOPT order dated 16.06.2000 against the vacancy/panel year 2005-06, ACRs upto the year 2003-2004 were to be considered, however, no ACR of the applicant prior to and including 2003-04 was ever communicated to him. Based O.A. No/040/251/2017 4 on vague, biased and factually incorrect entries in ACRS/APARs of subsequent periods specifically 01.04.2007 to 20.09.2007 and 2009-10, he was deprived legitimate regular promotions and consequential benefits at par with his juniors. Meanwhile his juniors got not only further financial up-gradation to E-9 Scale of pay w.e.f. 1.1.2014 but also got regular promotion to CE(Civil)/SAG w.e.f. 27.7.2015.
The applicant despite being the topper of UPSC 1990 batch of P&T (BW) Group A Service suffered inequity and discrimination and got his services regularized as SE(Civil) only with effect from 23.12.2015 i.e. after more than 10 years of adhoc service as SE(Civil). But he did not get financial up-gradation to E-9 Scale and regular promotion to CE(Civil)/SAG at par with his juniors. On his regular promotion as SE(Civil), the applicant was transferred from Coimbatore to Guwahati. Applicant's representations to the Appellate Authorities, highlighting in detail the factual inaccuracies in the unsubstantiated, arbitrary & prejudiced O.A. No/040/251/2017 5 entries in his ACRS/APARS and also his explanation and reasons for upgradation of his overall gradings were either kept pending or rejected [representation dated 30.9.2010 (followed by the reminder dated 7.2.2011) (representations dated 18.5.2010 & 22.12.2011) by vague, cryptic, unreasoned & non-speaking orders (dated 2.6.2011, 27.3.2012 & 4.4.2012). However, same was ignored by the Appellate Authority on the following grounds:
[A] In case of ACRs of 2006-07 & 1.4.2007-20.9.2007: (1) facts & figures of grave financial irregularities & undue benefits given to the contractors by the Field Officers as exposed by the applicant & quoted in his self-appraisal not denied or contradicted by the Reporting or Reviewing Officer, (ii) ACRs of 2006-07 A3) & 1.4.2007-20.9.2007 were reviewed together on 30.6.2008 on the date of his retirement by the Reviewing Officer, (iii) violation of Rule 174(7), Rule 174(9)(ii)(b), Rule 174(9)(ii)(e) & Rule 174(10) of P&T Manual Volume III, (iv) unsubstantiated adverse entries were contrary to material on record (v) use of ambiguous O.A. No/040/251/2017 6 language &forbidden expression 'Average' in entries by Reporting & Reviewing Officer in violation of instruction no.5 given at the end of ACR form (vi) violation of DP & AR OM No.51/3/74-Est.(A), dated 22.5.1975 & (vii) ACRs disclosed after 3 to 4 years of being written etc. [B] In case of APAR of 2009-10: (i) As per DOP&T OM No.21011/02/2009-Estt.(A) dated 16.2.2009 & DOPT O.M No. 21011/2005-Estt (A) (Pt.II) dated 23.7.2009 both the Reporting Officer for the period 1.4.2009-1.9.2009 and the Reviewing Officer for full period of 2009-10 had forfeited their rights to record any remarks for not adhering the deadline, (ii) Repeated arbitrary & illegitimate transfers of the applicant by the Reviewing Officer by changing the order of applicant's cadre controlling authority at Corporate Office, New Delhi and by keeping the post of SE(Civil) Ambala vacant and transferring the applicant to a non-existing post of DGM(L&B) & thereafter to non-cadre posts of DGM(Passive Infra) belonging to telecom engineers & without Informing cadre controlling authority O.A. No/040/251/2017 7 of the applicant at New Delhi, (iii) Deputation of the applicant (who was not working in vigilance wing) by the CVO, BSNL, New Delhi (despite having several civil engineers posted in vigilance throughout India in BSNL) to investigate several serious & grave complaints received from CVC related to corruption charges raised against Shri B.Venugopal, the then C.E(Civil), Raipur (an officer much senior to the applicant in BSNL), (iv) facts quoted by the applicant in his self-appraisal not denied or contradicted by the Reporting or Reviewing Officer, (v) violation of Rule 174(7), Rule 174(9)(ii) (b) & Rule 174(10) of P&T Manual Volume III, (vi) Numerical gradings have been recorded in a mechanical fashion without considering the self- appraisal and gradings recorded are contrary to material on record etc. In order to get justice applicant approached the CAT Chennai Bench. All the three orders were set aside by the CAT Chennai Bench on 14.12.2016 and while quashing these orders, CAT labelled orders as "non-speaking" and O.A. No/040/251/2017 8 observed that the same have been passed without taking into consideration various points raised by the applicant in his representations and that too without assigning any reason. Accordingly, respondents were directed to reconsider the representations and pass speaking orders within three months from the date of receipt of the order. Similarly, in its another judgement dated 1.2.2017 CAT Chennai Bench observed that applicant's representation dated 30.9.2010 on his APAR of 2009-10 (deliberately kept pending for more than 6 years by the Respondents) "deserved to be considered on merits" and directed the Respondents to pass a reasoned and speaking order within a period of three months of receipt of CAT order. However, once again applicant's representation dated 22.11.2011 was rejected by a vague, cryptic & non speaking order dated 20.4.2017 based on 'presumptions' and in a mechanical fashion with many infirmities.
Impugned Order was issued without following the due process of consulting Reporting & Reviewing Officers, an O.A. No/040/251/2017 9 essential attribute for a quasi-judicial decision by the Appellate Authority who had not seen the working of the applicant during that period. As per express admission in impugned order, the Appellate Authority had decided the case considering the categorical denial of earlier Appellate Authority as one of the "existing constraints" and was swayed by the observations & conclusions of the previous Appellate Authority. But, there was no such constraint as the CAT had set aside the earlier orders of the then Appellate Authority and labelled the orders as "non speaking" orders and hence while passing fresh order the matter was required to be considered de novo. Thus, the present appellate authority arrived at the same conclusion without applying Independent mind on the representation. Similarly, applicant's representation dated 30.9.2010 too was rejected vide order dated 22.06.2017 after more than six and a half years of its submission to the Respondents, based on presumptions and in a mechanical fashion with many infirmities. Since, the Reporting Officer of the O.A. No/040/251/2017 10 applicant's APAR of the period 06.10.2009-31.03.2010 had retired on 31.8.2011 and Reviewing Officer of the full period of 2009-10 had retired on 30.4.2011 from the service i.e. more than six years back. Therefore, their comments on applicant's said representation dated 30.9.2010 cannot be obtained now, after so many years from their retirement. Thus, as observed by the Courts & Tribunals in numerous judgements, it has now become a futile exercise as due quasi-judicial process cannot be followed and the Appellate Authority, had not seen the working of the applicant during that period.
Applicant is currently under continuous and real threat of facing extreme humiliation of getting posted under his juniors, whose acts of omission and commission were reported by him.
However, in the meantime he has been promoted as Chief Engineer and posted at Jaipur, BSNL Rajasthan Circle but for the ends of justice, he wants antedating of this promotion as Superintending Engineer (Civil) with effect O.A. No/040/251/2017 11 from 17.09.2013 when his juniors (Shri H. S. Bisht and Officers below him, total 40 of them had been promoted as Superintending Engineer (Civil) on regular basis. Being aggrieved, he has filed the instant O.A.
3. The learned counsel of the Applicant, Mr. Chanda while putting forth his arguments submitted that the instant OA has been made against the impugned orders dated 20.04.2017 and 22.06.2017 issued by the Respondent Authorities arbitrarily denying regular promotion to the Applicant at par with his juniors for exposing financial irregularities and undue benefits given to the contractors by field officers. The Applicant was victimised and arbitrarily transferred from one Engineering post to sometimes non existing posts (like the post of DGM (L & B) under GM (Dev); like DGM (Passive Infra) etc. He was derisively referred to as a theoretical Officer not fit for field posting and only fit to teach rules and procedures in BSNL's training institutions. He was accused of not being cooperative and a Team O.A. No/040/251/2017 12 Member; lacking practical orientation. He was not liked by BSNL's Chief Engineer (Ambala) and Chief Engineer (Raipur).
The Applicants' representation dated 30.09.2010 on his ACR for the year 2009-10 was decided after keeping it pending for more than six and a half years of its submission and without following the due process of consultation with the Reporting and Reviewing Officers. His representation was rejected by a vague, cryptic and non speaking order dated 20.06.2017 based on opinions and in a subjective manner. Further the Applicants' representation dated 22.11.2011 was also decided and rejected vide Order dated 20.04.2017 which was neither objective nor based on facts. Central Administrative Tribunal, Madras Bench vide their judgment and order dated 27.03.2012 and dated 04.04.2012 of the previous Appellate Authority being 'non speaking' and without application of mind. Moreover, the Applicant was meted out with hostile discrimination during O.A. No/040/251/2017 13 his promotion as the DPC for the vacancy year 2005-06 considered the ACRs/APARs of the years 2007-08; 2008-09; 2009-10; 2010-11 and 2011-12 whereas ACRs upto 2003-04 only ought to have been considered.
Learned counsel for the applicant relied upon the judgement passed by the Hon'ble Apex Court in the case of Shiv Kumar Sharma And Another versus Union of India & Others reported in (1997) 11 SCC 112, wherein it has been held inter alia as under;
"3. The learned Counsel for both these officers invited our attention to a decision of the Full Bench of the Central Administrative Tribunal dated 29-10-1991. By that decision the Tribunal evolved a formula of categorisation. That formula was as under:
The only reasonable and just suggestion that in our opinion can be made to meet the ends of justice in the circumstances of the case is that for the period during which the applicants shouldered the higher responsibilities for the higher Class I posts of ASW/SW, their gradation as SA should be treated as one level higher than the grading awarded to them as ASW as per the ACRs for that period. That is, if the ACR as ASW reflects "good" it should be taken as "very good", and if "very good", then it should be taken as "outstanding". In this manner they are placed on equal footing for the purpose of assessment of comparative merits." See S.S. Sambhus v. Union of India (1992) 19 ATC 571 (Hyd)(FB).
4. This formula worked out by the Full Bench of the Central Administrative Tribunal came up for scrutiny by this Court in O.A. No/040/251/2017 14 Prem Shankar Gupta v. Union of India SLPs (C) Nos. 5259-60 of 1991 with SLP (C) No. 14447 of 1992 and allied matters. This Court while disposing of the group of petitions observed as under:
We are satisfied that the formula evolved by the Full Bench of the Central Administrative Tribunal is the proper and just one having regard to the facts and circumstances of the case and the practicalities of the situation.
4. The learned counsel of the Respondents, Mr. G. Goswami countered the arguments made by the counsel of the Applicant as follows:
The Applicant could not be promoted to the post of SE
(c) due to below bench mark grading in ACR/APAR for the required period. The promotions were made as per the principle of 'Merit cum Seniority'. Thus seniority at the entry point has nothing to do where merit comes first with other multiple factors required for promotion.
The Applicant wanted his performance to be reported/reviewed based on only one criterion - so called financial irregularities rather than his performance based work and targets achieved. ACR/APAR is not the right O.A. No/040/251/2017 15 instrument to vent out allegations against one's superior Officers. Such grievances are required to be submitted separately without mixing up with ACR/APAR and at appropriate fora. Moreover, when the Applicant was exposing grave financial irregularities; deliberate acts of commission and omission of superior/Reporting/Reviewing Officers then he ought to have impleaded them by name in the instant O.A to enable them to answer the charge of malafide and malfeasance as settled by Hon'ble Apex Court judgement in State of Punjab & Others vs Chaman Lal Goyal (1995) 2 SLJ 126 SC) and State of Bihar and Another vs. Shri P P Sharma (1991) SC 1260. Also the applicant was transferred as per the BNSL Transfer Policy which inter alia states that "In the changing business environment, role/profile of employees needs to be augmented continuously. Functional managers need to be given on-the-job training and exposure in different types of work situations to develop them to be Business Managers." Accordingly, the applicant was transferred to O.A. No/040/251/2017 16 the Office of CGMT, Haryana Circle, by the CGMT Haryana on the recommendation of Chief Engineer (C) Haryana Zone, Ambala as there were lots of coordination problems between CE (C) and the applicant's attitude towards his work.
Also the applicant did not submit his APARs on time as brought out in the following table:
S.N ACR/APAR period Date of Submission Delay in submission by applicant 1 01.04.2006-31.03.2007 28.05.2007 28 days 2 01.04.2007- 20.09.2007 26.06.2008 249 days 3 01.04.2008- 14.10.2008 02.05.2009 169 days 4 16.10.2008-31.03.2009 04.05.2009 4 days 5 01.04.2009-01.09.2009 19.05.2010 231 days 6 06.10.2009-31.03.2010 22.05.2010 22 days In deference to CAT Madras Bench's judgement and order dated 14.12.2016, the Respondent authorities O.A. No/040/251/2017 17 disposed of the applicant's representation dated 30.09.2010 by rejecting his claim through a well-reasoned and speaking order dated 22.06.2017. Another representation dated 22.11.2011 was also decided and rejected by the respondent authorities through a well-
reasoned and speaking order dated 20.04.2017. Both these orders were objective and based on facts. However, these are now dead and stale issues and it is a settled principle in law that Courts should not revive dead issues as laid down by the Apex Court judgement in Union of India & Others vs. M.K Sarkar (2010) 2 SCC 59. Also the law is well settled that repeated representations do not give rise to any fresh cause of action as per the Apex Court judgement in SS Rathore vs. State of M.P [AIR 1990 SC 10].
However, the learned counsel stated that he was not against the settled principle in law as laid down by the Hon'ble Supreme Court in the case of Shiv Kumar Sharma And Another vs UOI & Others supra, where the Hon'ble O.A. No/040/251/2017 18 Supreme Court has referred the case of Prem Shankar Gupta vs UOI (SLPs (C) Nos. 5259-60 of 1991 with SLP (C) No. 14447 of 1992.
5. Heard the learned counsel of both the sides; perused the relevant documents on record and went through the Hon'ble Apex Court judgements. It is noted that as per the applicant, he is the Topper of his batch of Engineers recruited in BSNL and denying time bound promotions to him from the post of Executive Engineer to Superintending Engineer and then from Superintending Engineer to Chief Engineer with his batch mates has caused great discrimination; inequity and injustice to him. The applicant is a very upright officer with great probity, honesty and integrity and just because he has become a whistle blower exposing financial irregularities and administrative lapses in the BSNL organisation, he has been unduly targeted by his superior officers and given average/below average/adverse remarks in his APAR which were also not O.A. No/040/251/2017 19 communicated to him in time to rebut them and make a stout self defence.
Therefore, let us apply the law laid down by the Hon'ble Apex Court in the case of Shiv Kumar Sharma And Another versus Union of India & Others reported in (1997) 11 SCC 112, evaluation of ACR/APAR of the applicant as submitted by the Respondents as Annexure R-4 of their reply may change as tabulated below:
ACR/APARs Evaluation on Grading after Grading as per the considered by DPC on 17.09.2013 done impugned orders law laid down by the 17.09.2013 by DPC dated 20.04.2017 Hon'ble Supreme & 22.6.2017 Court 2007- 1.4.07- Average Average Good 08 20.9.07 26.9.07 - Very good Very Good Outstanding 31.3.08 2008- 1.4.08 - Good Very Good Outstanding 09 14.10.08 16.10.08 - Very Good Very Good 31.3.09 2009- 1.4.09 - Good Good Very Good 10 1.9.09
6.10.09 -
31.3.10
2010-11 Very Good Very Good Outstanding
2011-12 Very Good Very Good Outstanding
6. The eligibility criteria for regular promotion to Superintending Engineer (SE) as per Recruitment Rules, 2009 O.A. No/040/251/2017 20 for the scale of Rs. 16,000-400-20,800 (ES) is "Very Good; no adverse' not more than one good". Four "Very Good" and one "Good" are sufficient for regular promotion to SE. As per the last column of the Table above and as per the law laid down by Hon'ble Supreme Court that APAR gradings have to be stepped up by one level, the applicant's grading now for FY 2007-08 is partly 'Good' and partly 'Outstanding'; for FY 2008-09 is 'Outstanding'; for FY 2009-10 is 'Very Good'; for FY 2010-11 is 'Outstanding' and for FY 2011-12 is also 'Outstanding'.
7. Accordingly, we are of the considered opinion that the instant O.A has merit; deserves to be allowed and is accordingly allowed. The impugned orders dated 20.04.2017 as well as 22.06.2017 (Annexure A-16 & 17) are set aside and quashed. The respondents are directed to hold the review DPC and reconsider his case as observed in the light of Apex Court judgement in Shiv Kumar Sharma (supra), and give the benefit of antedating of promotion to O.A. No/040/251/2017 21 the applicant as Superintending Engineer (Civil) with effect from 17.09.2013 when his juniors and batch mate were promoted and all consequential benefits thereof, if he would be otherwise found fit. The above exercise should be completed within a period of four months from the date of receipt of certified copy of this order. However, there will be no order as to costs.
(DR. SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
SS
O.A. No/040/251/2017