Central Administrative Tribunal - Delhi
C. Kandasamy vs Ministry Of Road Transport And Highways on 23 December, 2009
Central Administrative Tribunal Principal Bench OA No.3295/2009 New Delhi, this the 23rd day of December, 2009 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) C. Kandasamy Applicant (By Advocate : Sh. Nidesh Gupta, Sr. Counsel with Sh. Tarun Gupta) Versus Ministry of Road Transport and Highways through its Secretary & Others Respondents (By Advocate : Shri Vivek K. Tankha, Additional Solicitor General with Sh. Surya Narayana Singh and Ms. Sangeeta for Sh. R. V. Sinha for Respondent No.1 & 2. Sh. Harish Sinha for Respondent No.3 and Sh. Sumit Gahlawat for Respondent No.4) O R D E R Justice V. K. Bali, Chairman :
C. Kandasamy, the applicant herein, was appointed as assistant Executive Engineer on 25.10.1976 on his successfully competing in the Combined Engineering Services Examination of 1975, through UPSC. He was promoted as Executive Engineer on 2.11.1981, on which post he functioned satisfactorily till 1993, by which time he was promoted as Superintending Engineer. He worked in various projects across the length and breadth of the country and rendered completely unblemished service throughout. On 3.8.2001, he was appointed by way of mandatory deputation as General Manager with the National Highways Authority of India (NHAI), and continued to work on the said post till 9.9.2001. He was thereafter appointed as Chief Engineer on regular basis on 11.9.2002 and was subsequently sent on deputation as Chief General Manager to NHAI for a period of three years, vide order dated 24.9.2002. It is the case of the applicant that while working in NHAI he was instrumental in planning and implementation of the prestigious North-South Corridor Projects of the National Highways Development Programme in Andhra Pradesh, Karnataka, Tamil Nadu and Kerala. In the year 2006, two posts of Member (Technical) were advertised by the then Ministry of Shipping, Road Transport and Highways. The applicant applied against the said posts vide his application dated 22.9.2006. He was asked to provide details of his experience in highway engineering and public-private partnership projects. It is his case that considering his highly meritorious and commendable service record, he was appointed on the post of Member (Technical). Shri Brahm Dutt, the 2nd respondent arrayed in the present Application is functioning as Secretary, Ministry of Road Transport & Highways since 1.8.2007. It is the case of the applicant that within a short period of his joining as Secretary, the Chairman NHAI has been changed on more than one occasion, and that it has been the habit of the 2nd respondent to have those people who would fulfill his every wish and have no independent view of their own, and further that with the passage of time, his differences with the applicant became more and more pronounced. It is further his case that officers who are perceived by the 2nd respondent as not convenient and conducive to his intentions, would be shifted out or be made to bear the brunt of his anger, and that the long list of such officers would include Shri V. K. Sinha, concerning whom this Tribunal passed order dated 21.8.2008, wherein the attitude of the said respondent came in for severe criticism; similarly, in the case of one Vishnu Shankar Prasad also this Tribunal has recorded that the said respondent along with others created all hurdles and raised frivolous objections from time to time and distorted facts to mislead the Minister. It has also been recorded that he tried to do the same before this Tribunal as well by verifying false affidavit. The conduct of the 2nd respondent is further stated to be exemplified from the fact that the Ministry concerning which he is working as Secretary, was adversely commented upon by this Tribunal in its judgment dated 3.2.2009 in OA Nos.1756 and 1757/2008 in the case of Shri Rahul Gupta. The above list is stated to be only illustrative in nature since there are large number of other persons also who have faced severe hardships on account of the illegal actions of the 2nd respondent. The said respondent is said to have ensured the repatriation of the applicant to the Department of Road Transport &Highways by NHAI, even though his term of three years as Member (Technical), NHAI had not been completed. The applicant was directed to report in the department on the very next day when order dated 18.3.2008 in that behalf was issued. It is also the case of the applicant that in an open meeting with his colleagues wherein the applicant was not present, the 2nd respondent had mentioned about downgrading of the ACR of the applicant, which was humiliating and caused depression in his mind. Under the Ministry of Surface Transport (Roads Wing), Central Engineering Service (Roads) Group A Rules, 1995, as notified on 18.5.2004, the post of Additional Director General is filled up on promotion on selection basis from amongst officers in the next lower grade. A minimum qualifying service for promotion has been prescribed as Chief Engineer (Civil/Mechanical Rs.18400-22400) of Central Engineering Service (Roads) Group A with three years of regular service in the grade. The applicant fulfills the above qualification. Having worked on the said post since September, 2002, he has more than seven years service against the required three years service. There are three vacant posts of Additional Director General and the applicant is at number 3 in the seniority list, and is stated to be fulfilling all requirements for appointment to the said post. The DPC for filling up these three posts was constituted and its meeting held on 11.11.2009. The applicant came to know from reliable sources that during the course of the said meeting, the 2nd respondent who was part of the DPC, objected to the promotion of the applicant as Additional Director General on the ground that his ACR for the year 2007-08 was average. Pursuant to the said objection, the case of the applicant for appointment as Additional Director General has been kept pending or deferred. The 2nd respondent, however, recommended other persons including juniors of the applicant for appointment on the said post. Alleging serious mala fides against the 2nd respondent, present Original Application came to be filed under Section 19 of the Administrative Tribunals Act, 1985 seeking a declaration from this Tribunal that the ACR of the applicant for the year 2007-08 as reviewed by the 2nd respondent and consequential downgrading to average is liable to be struck down. The applicant also seeks striking down of the decision taken by the DPC dated 11.11.2009 and in consequence of the same, to issue directions to the respondents to convene a review DPC for re-consideration of his case along with others whose names had been forwarded for consideration to the three vacant posts of Additional Director General, after ignoring the average grading given by the 2nd respondent in his ACR for the year 2007-08, as also that the 2nd respondent should not be part of the review DPC.
2. When this matter came up for hearing on 17.11.2009, the Bench then seized of the matter, while issuing notice on motion, granted interim stay for a period of three days. The interim direction eversince is continuing.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their counter reply. Shri Nidesh Gupta, Sr. Advocate, assisted by Shri Tarun Gupta, representing the applicant, vehemently contends that present may be a case where the applicant may not be able to show any personal malice against the 2nd respondent, but the facts and circumstances of the case would lead to an irresistible conclusion that the applicant, because of difference of views and opinion that he may have with the 2nd respondent, has been adversely affected in the matter of appointment on the post of Additional Director General. The applicant has an unblemished record of 33 years. His service credentials are highly impressive. During the last 33 years service, he was not conveyed even a single memo, least any adverse remarks in his ACRs, and all of a sudden, at the nick of the moment when the DPC was constituted to consider the case of the applicant for promotion on the post of Additional Director General, his ACR for the year 2007-08 which was assessed by the reporting officer to be outstanding, was downgraded by the 2nd respondent on wholly untenable grounds and factual inaccuracies, by three stages, i.e., from outstanding to average. His ACR for the year 2007-08 was recorded by the Chairman, NHAI, his reporting officer, as outstanding, but the same was downgraded to average on 29.9.2009. The learned counsel relies upon number of judicial precedents to say that downgrading of the ACR of the applicant from outstanding to average is wholly illegal. He also refers to number of decisions that downgrading having not been communicated to the applicant, needs to be straightway ignored. It is also urged that the reviewing officer had to be of a higher rank than the reporting officer, whereas in the present case, both the reporting and the reviewing officers were of the same rank, and for that reason as well the downgrading made by the 2nd respondent as reviewing officer needs to be ignored. Reference is to some judicial precedents in support of that contention as well. The counsel also compares the performance of the applicant with his colleagues in his endeavour to show that his performance was far better than his colleagues. While referring to mala fides, besides the treatment meted out to the applicant himself, reference is also to other officers who were not to the liking of the 2nd respondent and who came to this Tribunal wherein, the conduct of the said respondent came under severe criticism. We may not refer to all the grounds raised in support of the Application at this stage, as having heard the learned counsel representing the parties, in totality of the facts and circumstances of the case, we are not inclined to dispose of the present Application. In fact, we are of the view that for the time being, some interim directions need to be issued. We may only mention that from the records made available to us, gradings given by the reporting authority, the reviewing authority and the accepting authority on the performance of the applicant from 1.4.2000 to 31.3.2008 are as follows:
S. Period Assessment by Assessment by Remarks
No. Reporting Authority Reviewing Authority
1. 1.04.2000 Outstanding Outstanding Out of turn promotion
To has been recommend-
30.11.2000 by the Reviewing
Authority
2. 01.12.2000 Outstanding Outstanding
To
31.03.2001
3. 01.04.2001 8 out of 10 Very Good Recommended fit
To ( Very Good) for promotion
31.03.2002
4. 01.04.2002 9 out of 10 Outstanding Reviewing Authority
To (Outstanding) has given highly
31.03.2003 dedicated and sincere
officer
5. 01.04.2003 Very Good Very Good Accepting Authority
To has also agreed with
31.03.2004 the assessment and
mentioned a sincere
hard working and well
behaved officer. He is
dedicated hard to
complete assigned tasks
6. 01.04.2004 Very Good Very Good to
31.03.2005
7. 01.04.2005 8.5 out of 10 Very Good Accepting Authority
To ( Very Good) has rated him as
31.03.2006 Outstanding Officer with merit and assign ned him 10 points out of 10.
8. 01.04.2006 8 out of 10 Very Good Accepting Authority
to (Very Good) has rated him as out- 31.03.2007 standing as nine
packages were awar-
ded under BOT (Toll)
which is a remarkable
achievement.
9. 01.04.2007 9 out of 10 4 out of 10
To ( Outstanding) (Average)
31.03.2008
4. Shri Vivek K. Tankha, Additional Solicitor General, representing the 2nd respondent, without joining issues as raised by the learned counsel representing the applicant, as mentioned above, at this stage, would, however, contend that in the present case, it is an admitted position that those cleared for appointment on the post of Additional Director General in the DPC meeting held on 11.11.2009 are seniors to the applicant, and it is not a case where the candidature of the applicant for the said post may have been rejected; it has been only deferred, and that the downgrading made by the reviewing officer has been conveyed to the applicant and he has been asked to make representation, which, if he may make, shall be decided by the Minister and not by the 2nd respondent. The learned counsel contends that once, the below benchmark grading, i.e., average as assessed by the reviewing officer has not been accepted by the DPC and instead, while deferring the case of the applicant for promotion, it has been conveyed to him enabling him to make representation, the respondents have followed the right procedure, and surely if the applicant makes representation, that would be positively considered. The applicant, it is urged, must have faith in the system and await the decision. He further states that this Court may even issue interim directions for decision of the representation that may be made by the applicant, in a time bound manner, and if the applicant may still be aggrieved, the Tribunal may go into the controversy as is involved in the present case. We find considerable merit in the contention raised by Shri Tankha, as surely, present is not a case of rejection of the candidature of the applicant; it has only been deferred requiring the applicant to make represent5ation. The only objection raised by the learned counsel representing the applicant is that if the Tribunal may accept the suggestion made by the learned ASG, the damage would be done, inasmuch as the applicant, even if appointed on the post of Additional Director General later in point of time, would lose seniority with his colleagues, who shall naturally be appointed in view of the recommendations made by the DPC. This contention of the learned counsel does not appear to be correct. Even though, the applicant has a right to be considered along with his colleagues, but as per instructions now in vogue, if the applicant is also found fit for promotion, he cannot score over his admitted seniors. The element of supersession that was earlier in existence by giving precedence to those who may be assessed as outstanding as compared to those who may be assessed as very good, is no longer in existence. Everyone now, who meets the benchmark, has to be appointed/promoted, as the case may be. However, we may not give a final decision on this issue. The same can be left open for further debate, and in case the applicant ultimately succeeds, the relief can be accordingly moulded. In any case, if the applicant may succeed, this Court can well pass an order that the appointment of the applicant would date back to when persons considered along with him were appointed. Inasmuch as, the case of the applicant has also been deferred for the time being and not rejected and he has been asked to make representation, it would be more appropriate to await the decision on the representation that he may make. If the applicant may thus make representation now, the same, we order, shall be disposed of by the concerned Minister as expeditiously as possible and definitely within fifteen days from receipt of the representation. We are sanguine that the points raised by the applicant in his representation which may be akin to the one raised in the present Application, would be looked into and if the same may not find favour, a reasoned order shall be passed. In case, the applicant may succeed and the downgrading done by the 2nd respondent as reviewing officer is ignored or set aside, the matter shall be proceeded from the said stage. However, if the representation of the applicant may be rejected, the applicant may place the same on records with a simple application challenging the same on the grounds that may become available to him. We are of the view that those who have been legitimately, through proper procedure gone into by the DPC, have been approved for appointment on the post of Additional Director General, need not await the decision of this case. As mentioned above, if the applicant may succeed, the relief can be moulded so that the applicant may not suffer in any manner whatsoever.
5. List again on 8.2.2010.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/