Central Administrative Tribunal - Delhi
Sh. P.C. Garg vs Union Of India Through The Director (Ss) on 20 August, 2014
Central Administrative Tribunal Principal Bench OA No.484/2013 Reserved on: 04.04.2014 Pronounced on: 20.08.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Sh. P.C. Garg S/o late Sh. Mool Chand Garg, R/o R-12/22, Raj Nagar, Ghaziabad (UP). ...Applicant (By Advocate: Dr. Ashwani Bhardwaj) Versus Union of India through the Director (SS), Cabinet Secretariat, Room No.7, Bikaner Houser, Shahjahan Road, New Delhi. ...Respondent (By Advocate: Shri T.C. Gupta) O R D E R By Dr. B.K. Sinha, Member (A):
By means of the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the below benchmark ACRs for the period 2007-08 and 2008-09 communicated to him vide Memorandum dated 09.12.2010 and has further challenged the Memorandum dated 28.01.2011 rejecting his representation for upgradation of the afore below benchmark ACRs.
2. The applicant has prayed for the following relief(s):-
Quash the Memorandum No.2/ACR/2010(9)-2090 dt. 09.12.2010, issued by the respondents, inter alia, communicated the below benchmark ACRs of the applicant for the period 2007-08 and 2008-09;
Quash the Memorandum No.2/ACR/ 2010 (9)-81 dt. 28.01.2011, by which the respondent had rejected the respondents of the applicant against the adverse ACRs and rejected the request for upgradation of ACRs for the periods 2007-08 & 2008-09;
Direct the respondents to upgrade the ACRs of the applicant for the period 2007-08 and 2008-09 to Very Good, with all consequential benefits of seniority, promotion and pay allowances and arrears thereof, and Consequently direct the respondents to convene a Review DPC as on March, 2009 (i.e. within 3 month of December, 2008, when the post of Deputy Secretary was created in the cadre review), with all consequential benefits, and Grant all consequential benefits of pay, allowances and arrears thereof to the applicant, along with the costs of the present proceedings, and Pass any other or further order(s) in favour of the applicant, which this Honble Tribunal may deem fit, just and proper in the above mentioned facts and circumstances.
3. The case of the applicant, briefly stated, is that he joined the respondent-department as S.R.A. (R&D) in May, 1988 and was promoted to the post of Under Secretary on 07.12.2000. As per the existing rules, Under Secretary with five years of service is eligible to be promoted as Deputy Secretary. The applicant attained this eligibility on 01.01.2006. An additional post of Deputy Secretary was sanctioned in December, 2008 consequent to cadre review, for which a DPC was convened in May, 2009. The DPC, inter alia, considered the name of the applicant. Meanwhile, a DA case was registered against the applicant by the CBI in October, 2009. In November, 2009, one Arulanandu, an officer junior to the applicant, was promoted superseding the applicant without communicating any reason to him. The applicant submits that it was only in May, 2011 the Department, while filing reply to his OA Nos.957/2011 and 3192/2011 before this Tribunal, disclosed that he had been declared unfit and superseded by said Arulanandu. The applicant further submits that he gained eligibility to be considered for the post of Deputy Secretary on 01.01.2006 and even if the DPC had been held within three months from December, 2008, when one additional post of Deputy Secretary had been sanctioned on cadre review, i.e. by March, 2009, he would have been selected as there was nothing pending against him.
4. Coming to the issue of ACRs, it is the applicants submission that in the year 2007-08, he had been assigned an analysis desk which he single-handedly managed to his best efforts. In respect of the year 2008-09, it is submitted that his ACR was directly written by the then Additional Secretary (AS) as there had been a conflict between the then Director and Consultant (ex-Joint Secretary) over writing of ACR, and that the AS was not aware of his capabilities and recorded his ACR overlooking the fact that he had organized a special interaction in November, 2008 for which he had been appreciated by the Additional Secretary himself.
5. On 14.10.2009, a DA case was instituted by the CBI vide RC 44(A)/2009. The applicant was placed under suspension on 01.02.2010 which was subsequently revoked vide order dated 21.04.2012. On 25.06.2012, the applicant was awarded a major penalty of reduction to lower stage in the time scale of pay by one stage for a period not exceeding four years without cumulative effect and withholding of increments during this period not adversely affecting his pension. The applicant challenged this penalty vide means of separate OA.
6. The principal ground adopted by the applicant is that before recording the adverse entry, he had not been administered any prior warning/caution by the reporting/reviewing officers, which is mandatory. In the second place, the applicant submits that had the DPC been held in time in March, 2009, he would have been promoted as there was nothing pending against him at that point of time. Thirdly, the applicant questions that though the DPC was held in May, 2009, he was declared unfit in November, 2009 and he is not aware to this date as to why he was declared unfit. The applicant has relied upon the judgment of Apex Court in Sukhdev Singh V/s. Union of India & Others [2013 (9) SCC 566]. The applicant submits that though he had dealt with a very sensitive subject in the organization, yet his representation has been rejected by a non-speaking order.
7. The respondent has filed a counter affidavit rebutting the contentions in the OA. It is submitted in the counter affidavit that notwithstanding the qualifying period of 5 years of service in the grade of Under Secretary, promotion is subject to availability of vacancies in the higher promotional rank and fulfilment of benchmark of Very Good. Despite eligibility of the applicant, no DPC could be held for want of vacancy. It was only when an additional vacancy in the rank of Deputy Secretary was created as outcome of the cadre review, the process was initiated. The learned counsel for the respondent submitted that the process of holding DPC involves wide consultation and coordination with several Departments. Despite the fact that the administrative process involved is bound to take some time, still the DPC was held at the earliest possible on 28.10.2009. At that point of time, a DE was contemplated against the applicant but no chargesheet had been served upon him under the CCS (CCA) Rules, 1965 and, hence, the sealed cover procedure was not resorted to. It is the case of the respondent that the name of the applicant was considered but he was not found fit for promotion on account of his ACRs not meeting the benchmark. The respondent further submits that prior to the reporting period of 2008-09, only the adverse remarks in the ACRs needed to be communicated to the concerned officer to enable him to file his representation. It was only after issuance of the OM dated 13.04.2010, the question of communicating the grading in the ACRs, if below benchmark, was put in place. Accordingly, the applicant was given an opportunity to submit his representation against the ACRs for the period 2007-08 and 2008-09 vide Memorandum dated 09.12.2010 before the DPC to be held in the year 2011. It was, on this account, wrong on the part of the applicant to plead that he came to learn about his unfitness for promotion only in May, 2011. The learned counsel for the respondent emphasized that the rejection of the applicants representation was on account of his being declared unfit by the DPC and it has nothing to do with the CBI case against him. It is further submitted that the representation filed by the applicant was duly considered and rejected.
8. The respondent on the issue of ACR pertaining to the year 2008-09 has submitted that as the Director at that point of time was under suspension and the next higher authority, a Consultant, could not have written the applicants ACRs, therefore, the Additional Secretary himself initiated his ACR which was accepted by the authority higher to him, i.e., the Special Secretary, as per rules. The counter affidavit also rebuts the argument of the applicant that the Additional Secretary was not aware of his working as the applicant himself says that the interaction organized by him was appreciated by the Additional Secretary. There is nothing on record to indicate that the ACRs were recorded in a hurry without application of mind. They were reviewed and accepted by different officers thereby eliminating the point of bias.
9. The applicant has filed a rejoinder wherein he has largely stuck to the OA and has reiterated the averments made therein.
10. We have carefully considered the contentions of the rival parties and perused the pleadings. We have also patiently heard the arguments of the learned counsel for both the parties, on the basis whereof the following issues emerge for decision:-
Whether the DPC is hit by non communication of remarks, as alleged by the applicant?
Whether the DPC held in 2009 was justified in acting on the basis of un-communicated remarks?
Whether the Additional Secretary was justified in writing the ACR of the applicant, whereas his reporting officer was the Consultant?
Whether the representation of the applicant has been rightly considered?
What relief, if any, could be granted to the applicant?
11. Insofar as issues no. 1 & 2 are concerned, these, being similar in nature and in continuum, are being taken together. It is clear from the impugned order dated 09.12.2010, conveying remarks and inviting representation, that it was not a case of adverse ACRs. Rather for the year 2007-08, the reporting officer had graded the applicant Good. The reviewing authority had written Lacks enthusiasm or the will to enrich his knowledge of the subject assigned to him. The accepting authority has simply recorded, I agree, and in the final grading, he has recorded Good. In over all grading also, the applicant has been awarded 56% points which are within the range of Good i.e. 46% to 65%.
12. In the ACR for the year 2008-09, the reporting officer has graded the applicant Good with 60% marks which has been agreed to by the reviewing and accepting authorities. It is to be remembered in this context that earlier only adverse ACRs were to be communicated as per the extant guidelines. It was in the wake of the judgment delivered in the case of Dev Dutt versus Union of India [2008 (8) SCC 725) that the Government of India decided to communicate the below benchmark ACRs, and in this regard OM dated 13.04.2010 has been issued. This OM, inter alia, provides that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckoned for assessment of fitness in future DPCs contain final grading which are below benchmark for next promotion, are required to be communicated to the assessed officers and his representation, if any, needs to be decided, and further that the representation is required to be decided by the competent authority after taking into account the views of the reporting/reviewing officers offered for upgrading the ACRs. However, for sake of greater clarity, the relevant portion of the said OM is reproduced below:-
Subject:- Below benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR of for upgradation of the final grading.
The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any, to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his presentation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years. It is clear from the above that the year 2008-09 has been declared as the cut off year and if ACRs prior thereto are relied upon for promotion, the same have to be necessarily communicated. We find that since the Circular was issued on 13.04.2010 and the DPC had taken place in May,2009, there is no way in which these communications could have been brought into effect in view of the continuing practice of communication of the adverse remarks only. Hence, the DPC held in the year 2009 rightly considered the case of the applicant on merit. Since two of his ACRs were below benchmark, we find no irregularity having been committed by the DPC. The issues no. 1 & 2 are accordingly decided against the applicant.
13. Now, we take up the third of the issues. In this regard, the respondent has clearly stated that insofar as the ACR for the year 2008-09 is concerned, the concerned Director was under suspension and the reviewing officer, i.e., Consultant could not have written his ACR as he was not a permanent employee of the Government. It was on this account that the ACRs of the applicant were initiated by the then Additional Secretary and had been accepted by the next higher authority that being the Special Secretary. This is in accordance with the OM dated 23.09.1985, the relevant portion whereof is extracted below:-
When there is no reporting officer having the requisite experience A question has been raised as to the course of action to be adopted when, in the case of an officer, there is no Reporting Officer having the requisite experience of three months or more during the period of report, as a result of which no Reporting Officer is in a position to initiate the report. It has been decided that where for a period of report there is no Reporting Officer with the requisite experience to initiate the report, the Reviewing Officer himself may initiate the report as a Reporting Officer, provided the Reviewing Officer has been the same for the entire period of report and he is in a position to fill in the columns to be filled in by the Reporting Officer. Where a report is thus initiated by the Reporting officer, it will have to be reviewed by the officer above the Reviewing Officer.
14. We also take a note of the fact that the stand taken by the applicant that the then Additional Secretary was not aware of his working stands controverted by the applicant himself when he states that the Additional Secretary was impressed by the interaction that he had organized and had appreciated him on this count. Hence, this issue is also decided against the applicant.
15. Insofar as issue no.4 is concerned, the relevant portion of the OM dated 13.04.2010 is being extracted below:-
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the office who has represented against the particular remarks/grading in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/ Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefore may also be given in the order of the competent authority.
16. The comments of the Initiating Officer/Reviewing Officer and Accepting Authority could not be obtained as none of these authorities was in position at the relevant time. The comments of the cadre in-charge of the applicant had been sought on the representation of the applicant in order to ascertain the veracity of his claim for the relevant period. The representation of the applicant dated 27.12.2010 was submitted to the competent authority along with the comments of the cadre in-charge, who, after ascertaining all the facts, decided that there was no merit in the representation.
17. We have perused the File No.2/ACR/2010 (9) ACR Cell produced before us by the respondent and find therefrom that the representation of the applicant was been considered in detail. The office was well aware of the legal provision and had recorded in the Note dated 10.01.2014 as under:-
5. As per DoP&T guidelines, before a decision is taken by the Competent Authority on the representation, comments of the concerned IO/RO/AA is required. Since all the IO/RO/AA of these two ACRs had retired, the comments of the then Special Secretary (CT/Q) in his capacity as in-charge of S&T unit, on the basis of the memo dated 06.10.2010 (F/A) was sought. In his comments as the in-charge of S&T Unit, the SS (CT/Q) vide note no.438/SS(CT/Q)11 dated 19.01.2011 (F/B) had informed that he did not find any merit in the contentions of Shri Garg and had not commended for upgradation of aforesaid ACRs. Accordingly, the file along with comments of (SS CT/Q) was submitted to Secretary for his perusal. The Secretary had agreed with the comments of SS(CT/Q).
6. The decision of the Competent Authority was conveyed to Shri P.C. Garg, US (S&T) vide memo dated 28.01.2011 (F/C).
18. We have also gone through the remarks of the then SS (CT/Q) and found that he had applied his mind objectively to the issues raised. Hence, we find that the representation of the applicant has been rightly considered in view of the directives vide OM dated 13.04.2010 and with due application of mind. This issue is accordingly decided against the applicant.
19. We find that the applicant has relied upon the case of G.P. Sinha versus Union of India & Others [OA No. 593/2005 decided on 02.06.2006]. In this case, a plea had been taken that opportunity should have been extended to the government servant to improve his conduct by way of written communication which includes advisory memos, warnings, explanations etc. in absence of which there would not be any objectivity in writing ACRs. The applicant in that case had relied upon the case of Sukhdeo V/s. Commr. Amravati Division [1996) SCC (L&S) 1141]. The Tribunal, relying upon other decisions in the cases of State Bank of India V/s. Kashinath Kher [JT 1992 (2) SCC 569] and State of U.P. V/s. Yamuna Shankar Mishra, [(1997) 4 SCC 7] set aside the offending ACRs on this very ground. The applicant has also relied upon the decision of the High Court of Delhi in the case of Union of India and Others V/s. Haldhar Prashad [WP(C) No. 3937/2012 and 3970/2012 decided on 08.07.2012] wherein the recommendations of the DPC had been quashed based on un-communicated remarks. However, we have to note here that the concerned circular in this case is dated 13.04.2010 while the DPC had already been held on 26.10.2009 on the basis of remarks contained in the ACRs pertaining to the years 2007-08 and 2008-09. At that time, as per the instructions in vogue only adverse entries needed to be communicated, while the ACRs of the applicant were below benchmark and did not contain adverse remarks. It has already been seen that the grading for the year 2008-09 forms and constitutes a benchmark for this purpose. We agree that in absence of rules, the circular would take place of subordinate legislation. However, when the circular had been issued, it had been complied with, as seen above, by communicating the remarks to the applicant inviting his representation, if any, and taking decision thereon. However, when the circular was not in force in 2009, as we have already noted above, the same could not have been implemented. We are additionally swayed by the fact that the present exercise is one of post facto communications and no improvement was possible in the performance of the officer concerned. The only purpose it may serve is to enable the concerned officer to submit his representation. Therefore, we are of the view that the respondent authority has not committed any error whatsoever in implementation of the circular dated 13.04.2010.
20. Coming to the last of the issues, we have seen that earlier issues have been consistently decided against the applicant. We find that there is no infirmity in communicating the remarks and holding the DPC as the same has been done as per the procedure prescribed and the various pronouncements of superior courts on the subject. Hence, no illegality whatsoever has been noted in the impugned order which may warrant quashing of the same, and as such the applicant is not found entitled to get any relief.
21. In totality of facts and circumstances of the case, we find no merit in the instant OA and the same stands dismissed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/