Gujarat High Court
Sandeepkumar Agrawal S/O Dina Nath ... vs Union Of India on 25 October, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, V.P. Patel
C/SCA/20744/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20744 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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SANDEEPKUMAR AGRAWAL S/O DINA NATH AGRAWAL
Versus
UNION OF INDIA & 3 others
======================================
Appearance:
SHRI G. M. JOSHI, SR. COUNSEL WITH MR.VYOM H SHAH(9387) for the Petitioner
MR JOY MATHEW(448) for the Respondent No. 2
MRS MAUNA M BHATT(174) for the Respondent No. 3
RULE SERVED(64) for the Respondent Nos. 1, 4
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 25/10/2019
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C/SCA/20744/2017 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned counsels for the parties.
2. The petitioner by way of this petition has approached this court under Article 226 of the Constitution of India with following prayers.
"(A) This Honourable Court may be pleased to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ direction or order calling for the record in proceeding of OA No.181 of 2014 and after perusing the same be pleased to quashed and set aside thepast by the Learned Central Administrative Tribunal on 27th of June 2017 and be pleased tohold that petitioner/applicant was entitled to the prayer made in the OA No.181 of 2014.
(B) Be pleased to pass such other and further orders as may deem just and proper in the facts and circumstances of the case.
(C) Be pleased to award cost of this petition all throughout."
Thus, what is under challenge is the order and judgment of Central Administrative Tribunal, Ahmedabad Bench in Original Application No.181 of 2014 dated 27th June 2017 whereby the Central Administrative Tribunal dismissed the Original Application of the Page 2 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT present petitioner for the reasons stated thereunder.
3. The facts in brief shorn off unnecessary details and as could be gathered from the papers of this petition as well as the order impugned deserve to be setout as under : 3.1 The petitioner joined Indian Telecom services on 11th July 1983. The petitioner had to face departmental proceedings under Memorandum dated 22nd March 2001, which resulted into imposition of penalty of compulsory retirement as per the order dated 21st August 2003. The said order of compulsory retirement was challenged by the petitioner by approaching the Central Administrative Tribunal, Ahmedabad Bench by preferring Original Application No.451 of 2003. The Central Administrative Tribunal allowed the said application by passing the order and judgment on 29th April 2008 setting aside the order of penalty and issuing appropriate direction. The disciplinary authority set aside the order of penalty on 9th March 2010. The petitioner came to be reinstated in service in Junior Administrative Grade that would be (JAG) on regular basis w.e.f. 21st August 2001 and he was fixed below one Mr.V. Eswaran (Staff No.2246) and above one Shri Manjit Singh Dhilon (staff no.2249). The petitioner made representation on 22nd July 2010 contending that petitioner's immediate junior Shri Manjit Singh Dhilon was given adhoc promotion in the SAG and regularized in the year 2003. The petitioner urged for the same treatment and benefit to him also. The petitioner was informed under the communication dated 28/29th September 2010 that the petitioner was not eligible at the time when the petitioner's immediate junior was considered and hence, the petitioner's case for promotion to SAG was not acceptable. On 4th August 2010, the petitioner was served with below benchmark grading in Annual Confidential Report (ACR) for the years 19992000, 20002001 and 20022003 permitting him to make Page 3 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT representation thereupon, if any, for seeking rectification in the grading in the ACR. The petitioner submitted his representation, which came to be accepted and the ACRs were changed from "Good" to "Very Good". The petitioner was also informed that in the order dated 12th December 2010, the authority decided to treat the entire period of absence from 28th August 2003 to 15th March 2010 as period spent 'on duty' for all purposes and the competent authority also sanctioned grant of arrears of pay and allowances based thereupon. The said order is placed on record at AnnexureI dated 13th December 2010. The petitioner was granted NonFunctional Upgradation (NFU) on 7th January 2011 in the Senior Administrative Grade (SAG) of the ITS (Indian Telecom Service) Group 'A' w.e.f. 24th May 2010. The petitioner urged the authority by way of representation that the NFU be granted from the date when his batch mate was granted the same i.e. from the year 1981 by which all ITS were granted from the year 1983 of IAS. The order dated 7th January 2011 was modified and the petitioner was granted NFU w.e.f 3rd January 2006 as was granted to his batchmate of 1981. The petitioner came to know that the Review DPCs was held on 9th July 2010 and 8th October 2010, which found the petitioner unfit and regular DPC was held on 11th April 2011 did not recommend his case for regular promotion to SAG though he was granted NFU in SAG compelling the petitioner to approach Central Administrative Tribunal, Ahmedabad Bench by way of Original Application No.219 of 2011 with prayer to set aside the recommendations of the review DPC, which was held on 9th July 2010 and 8th October 2010 and sought declaration that he be declared and be entitled to be considered on regular basis for the promotion of SAG of ITS GroupA for vacancies of 200304. The Tribunal under its order dated 16th April 2013 ordered reconsideration for fresh decision directing the respondents to hold review of the decision inconsonance with the rule and were required to pass speaking order justifying the decision and the same was required to be done within four months from Page 4 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT the date of receipt of the order. Copy of the said order dated 16th April 2013 passed by the tribunal is placed on record of this petition. Pursuant thereto, the DPC was held on 5th November 2013 and in the same it is held that the petitioner's name was required to be recommended for inclusion in the panel for promotion into the Senior Division Grade in the Indian Telecom Service against the vacancies for the year 201011 at Sr.No.OA above Shri Anjan K. Datta (S.No.1). The recommendation for DPC on 11th April 2011 stood modified accordingly. This order and recommendations are placed on record at AnnexureM in the petition. The petitioner came to be promoted on 13th December 2013 to the SAG of ITA GroupA in the pay band4 of Rs.34,40067,000/ with Grade Pay of Rs.10,000/ on regular basis against the vacancies for the year 201011 notionally w.e.f. 19th April 2011 with reference to his juniors and actually from the date of joining in the higher post. The petitioner being aggrieved and dissatisfied with the order of respondent authorities dated 13th December 2013 referred Original Application No.181 of 2014 for direction to hold a review DPC to reconsider his case and pass fresh orders modifying the above order dated 13th December 2013 and promote him as SAG against the vacancy for the year 200304 on regular basis and to grant him promotion to SAG from the date on which his immediate junior i.e. said Shri Manjit Singh Dhillon was granted promotion. The said Original Application No.191 of 2014 came to be dismissed vide order and judgment dated 27th June 2017 giving rise to filing of the present petition under Article 226 of the Constitution of India.
4. Learned counsel for the petitioner submitted that the entire controversy needs to be viewed from the requirement of respondents to communicate below benchmark grading in the ACRs also irrespective of them being not in fact adverse in common parlance, but in case if the benchmark for the promotion is prescribed requiring the officers to earn Page 5 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT 'Very Good' or above grading in the ACR and when the officer is not getting the said benchmark and is only getting 'Good' then also it is a duty cast upon the authorities to communicate such ACR so as to afford an opportunity to the officer concerned to make representation for seeking rectification of the grading from 'Good' to 'Very Good', that will entitle the employee to be considered for promotion in case his representation is accepted. The petitioner's ACRs were communicated as per the say of the counsel on 4th August 2010 after his reinstatement as he was otherwise under order of compulsory retirement and petitioner was invited to make representation therein. The representation of the petitioner was accepted and his ACR grading were rectified from 'Good' to 'Very Good'. Therefore, his ACRs of those years stood rectified. The essential submission on the part of the department for denying him the promotion from the date when his junior was promoted i.e. Shri Dhillon was that in the relevant year, he did not earn the requisite benchmark grading in his ACRs. Now, when the grading has been rectified then, it was not open to the respondents to deny the said benefit based upon same office memorandum dated 13th April 2010 in which when addressing the specific instances, the authorities have communicated with the ACRs in which the benchmark gradings are not there, have to be communicated for the future DPCs. This memorandum could not have been heldout to the petitioner for denying him the benefit of the date of promotion i.e. the date on which his immediate junior Shri Dhillon came to be promoted.
5. Learned counsel for the petitioner invited Court's attention to the decision of the Supreme Court in case of Dev Dutt Vs. Union of India and others, reported in (2008) 8 Supreme Court Cases 725 and submitted that this avowed principle of communication of below benchmark grading of ACR flows from the judgment as prior thereof, there was practice of not communicating the below benchmark grading Page 6 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT about ACR to the concerned employee.
6. Learned counsel for the petitioner further submitted that the petitioner's case was in fact not required to be governed by the office memorandum, as the peculiar facts clearly indicated that in his case, the DPC was a review DPC for considering his case after his reinstatement pursuant to the competent Court's order and in that scenario when the petitioner was absolutely justified in earning the rectification and benchmark grade, the same could not have been denied to him and should have been brought to its logical conclusion. The period when petitioner was forcibly kept out on account of his compulsory order of retirement i.e. from 28th August 2003 to 15th March 2010, and when this period was to be treated as 'on duty' for all purposes, it was all the more incumbent upon the authorities to left all handicaps against the petitioner and the petitioner ought to have been granted the appropriate date i.e. the date on which his immediate junior Shri Dhillon came to be promoted.
7. Learned counsel for the respondent invited Court's attention to the memorandum dated 13th April 2010 issued by Government of India, Ministry of Communications & IT Department of Telecommunications to indicate that the said memorandum also provides only rectification for the few DPCs, else it would amount to openingup the old cases also which were not feasible and practicable. Therefore, in the instant case, when the petitioner was considered, it was to be considered only for the future DPCs and Court may not interfere with the order passed by the tribunal, as the same is based upon the correct interpretation of the Office Memorandum dated 13th April 2010.
8. We have heard learned counsels for the parties and perused Page 7 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT the record.
9. In order to depict the chronological development in an articulated manner, it would be most appropriate to setout herein below the date and event supplied by the petitioner's counsel with a copy to other side.
DATES AND EVENTS
DATE EVENT PAGE NO.
11.07.1983 Petitioner Joined the Indian Telecom Services
22.03.2001 Departmental Proceedings were initiated
against petitioner while working in cadre of DGM 21.08.2003 Petitioner was compulsorily retired from his services as a punishment Petitioner challenged the said decision of the Disciplinary authorities before the Central Administrative Tribunal [O.A 451 of 2003] which allowed the application in favour of the petitioner. The said order was challenged by the respondent before the Honourable High Court which dismissed the petition filed by the respondent. The order of the High Court further came to be challenged by the respondents before the Honourable Supreme Court.
The Honourable Supreme Court partly allows the SLP of the respondent authorities setting aside the order of the Tribunal qua 32 of the Central Civil Service (CCA) Rules 1965.
However, it directs the Tribunal to decide the Page 8 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT application afresh on other contentions raised by the petitioner.
29.04.2008 The Tribunal allows the remanded application of the petitioner and set aside the order of punishment on various grounds.
09.03.2010 The disciplinary authority sets aside the order 26 of punishment imposed on the petitioner.
17.03.2010 The petitioner was reinstated in service in 31 Junior Administrative Grade on the post of Deputy General Manager (DGM) (sales) 23.04.2010 The petitioner is notionally promoted to 34 officiate in Junior Administrative Grade of ITS Group A. Petitioner's seniority is placed below Mr. V.Eswaran and one above Mr. Manjit Singh Dhilon.
22.07.2010 Petitioner prefers representations requesting 38/41 01.09.2010 for promotion to Senior Administrative Grade with retrospective effect w.e.f. 2002/2003 i.e. the date from which his immediate junior Mr. Manjit Singh Dhillon was promoted.
28.09.2010 The respondent authorities reject the 44 representation of the petitioner stating that he was not eligible at the relevant time and hence he is not entitled for the same.
04.08.2010 The petitioner was communicated the ACR's of 47
the years 1999/2000, 2000/2001 and
2002/2003.
01.10.2010 The petitioner made representations against 51
the said ACR's and his remarks were
improved from Good to Very Good
13.12.2010 An order came to be passed by the respondent 69
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authorities treating the order of absence from 28.08.2003 to 15.03.2010 as "on duty for all purposes"
07.01.2011 The petitioner is granted Non Functional 73 Upgradation in the Senior Administrative Grade of the India Telecom Services. 11.10.2011 Acceding tot he request of the petitioner' 82 representation, the respondent authorities grants him the Upgradation w.e.f. 03.01.2006 i.e. the date from which his batch mates were given the promotion.
Review DPC's were held on 09.07.2010 and on 08.10.2010 wherein the petitioner was found unfit for regular promotion to SAG. Subsequently a regular DPC was conducted on 11.04.2011 in which also, the name of the petitioner was not recommended.
06.04.2013 The petitioner challenges the said action of the 86 respondent authorities before the Learned Tribunal [O.A 219 of 2011] wherein the Tribunal directed the respondent authorities to reconsider their decision.
05.11.2013 A review DPC is held and the case of the 99
petitioner for promotion to the Senior
Administrative Grade is considered but for the vacancies arisen in 20102011 and not for 20022003 from when the junior of the petitioner Mr. Manjit Singh Dhillon was promoted.
13.12.2013 Order promoting the petitioner to the Senior 113 Administrative Grade is passed but with effect from 2011.Page 10 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019
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27.06.2017 Being aggrieved by the said order, the 14
petitioner approaches the Learned Tribunal [O.A 181 of 2014] which is rejected by the Learned Tribunal through order dated 27.06.2017.
DoPT takes the defence that communication of the ACRs was pursuant to the OM dated 13 April 2010 and the upgradation of the remarks, though relatable to operate prospectively only for future DPC.
Defence is accepted by the Learned Tribunal and Original Application is rejected.
10. The Court is calledupon to examine the judgment and order of the tribunal under which the petitioner's prayers for granting him benefit of date of promotion, the date on which his immediate junior Mr.Dhillon came to be promoted. The essential ground for denying the same appears to have been flowing from the perusal of the office memorandum dated 13th April 2010. In our considered view the said office memorandum is though not challenged by the petitioner in any proceedings on the ground that the said memorandum could not have been pressed into service so far as the peculiar case of the petitioner was concerned, as the petitioner was under the force exile of service on account of penalty of compulsory retirement, which compel the petitioner to approach the Tribunal time and again and ultimately when the tribunal decided in his favour, the tribunal did issue a direction, which is setout in the petition, which is setout hereinbelow also.
"12. Having noted the above, we find that the respondents have failed to justify their action and have simply relied on the Page 11 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT recommendations of review DPC which in turn do not point out any adverse fact or circumstance against the applicant for assessing him 'Unit'. Any decision must be supported by reasons and absence of such reasons makes decision non transparent and renders it violative of the principles of natural justice. From above chronology of events and observations made hereinabove, we are constrained to observe that the applicant's claim for promotion has not been considered in a transparent manner and absence of reasons for declaring him 'Unfit' is violative of principles of natural justice. Respondents have failed to provide the applicant any communication regarding the decision alongwith reasons therefor.
Such action cannot be sustained and requires our interference. The applicant deserves reconsideration and for fresh decision alongwith reasons to be assigned justifying such decision. We, therefore, direct respondent No.1 to review the matter in consonance with the rules and place the matter for reconsideration before a review DPC. Respondents are required to pass speaking order alongwith reasons justifying their decision. This should be done within a period of four months from the date of receipt of a copy of this order. Applicant shall be at liberty to seek legal Page 12 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT remedy, if so advised thereafter."
11. This direction was complied and even the period from 28th August 2003 to 15th March 2010 was treated as spent 'on duty' for all purposes. In other words, whatever handicaps were fasten upon the petitioner on account of his forced exile were removed on account of the decision of the competent Court, which attained finality as it was not challenged and rather acted upon by the respondent authorities, then a question arises as to whether was it open to the respondents not to accord all and total consequential benefits flowing from the order? The answer would be obvious 'No'. The authorities have all along constantly acted in compliance with the order of the Tribunal, which has attained finality and when the DPC held was called for review DPC and when the ACR's grading were rectified, they obviously would relate back to the date on which they were written. Therefore, it cannot be said that the rectification would act or help the concerned employee for his future DPCs. We hasten to add here that the Office Memorandum of 13th April 2010, thus provide the same. But, the decision of Dev Dutt (Supra) with following observations clearly held that the noncommunication of the grading below benchmark to the concerned employee is violative of principle of natural justice and amounting to lack of fairness on the part of the authorities.
"16. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. `poor' entry) need to be communicated and not `fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or get some other benefit. For example, if the bench mark is Page 13 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT that an incumbent must have `very good' entries in the last five years, then if he has `very good' (or even `outstanding') entries for four years, a `good' entry for only one year may yet make him ineligible for promotion. This `good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.
37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model Page 14 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT employer, and must act fairly towards its employees. Only then would good governance be possible.
38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh. But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants).
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 199394 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.Page 15 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019
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44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.
12. The Supreme Court did not indicate anywhere that the said declaration of law was only prospective. Rather it is trite to say that the declaration of law by the Court is always retrospective and in a given case, the Court may specifically make it prospective. In the instant case, if one peruses the judgment and order of the Supreme Court in case of Dev Dutt (Supra) one would find that it has not made prospective. However, we need not dwell elaborately upon the office memorandum dated 13th April 2010 as the same is not under challenge and as when the same is challenged, it could be examine with little more detail and depth. Suffice it to say that the petitioner's case was in fact a peculiar case not governed by the office memorandum as it was pursuant to the order of the Court under which the Court rectified the wrong done to the petitioner and issued direction for treating the petitioner as if he was in service and everything follows therefrom. Therefore, it is all the more Page 16 of 17 Downloaded on : Sat Oct 26 05:12:41 IST 2019 C/SCA/20744/2017 JUDGMENT required to be noted that the office memorandum could not have been pressed into service to deny the service benefit to the petitioner. Besides, it is also required to be noted that even the office memorandum also talks about DPC. In the present case, the pleadings and record clearly stated that the DPC and exercise undertaken is only with regard to the DPC. Hence, we are of the view that the decision rendered by the Tribunal is erroneous and is required to be quashed and set aside as the petitioner has madeout a case based upon the earlier pronouncement made by the Court and the employer - respondent have clearly complied therewith and when grant of benefits in his favour including in service 'on duty' for all the purposes then the denial of benefit would not be justified. Hence, we issue following direction.
(i) The petitioner shall be treated to have been promoted on account of the ACRs if there is nothing else against him based upon the date of his immediate junior i.e. Shri Manjit Singh Dhillon. In other words, he should be given same treatment given to his immediate junior i.e. Shri Manjit Singh Dhillon (Staff No.2249) as soon as possible and based thereupon all the consequential benefits should also flow therefrom.
13. In the result, the petition is allowed. Rule made absolute. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) (V. P. PATEL, J.) AMAR RATHOD...
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