Central Administrative Tribunal - Patna
Smt. Binita Mitra vs Union Of India & Ors Reported In Air 2008 ... on 11 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 559/2008
Date of Order :11.07.2013
C O R A M
Hon'ble Mrs. Urmita Datta (Sen), Judicial Member
Hon'ble Mr. A.E. Ahmad, Administrative Member
Smt. Binita Mitra, wife of Sanjeev Mitra, resident of 408, Hope Narayani, Vijay Nagar, Baily Road, posted as FA & CAO/Madhepura, at General Manager's Office, EC Railway, Hajipur.
........... Applicant.
By Advocate : Shri G. Bose
Vrs.
1.The Union of India through the Secretary, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi.
2.The Joint Secretary, Railway Board, Rail Bhawan, New Delhi.
3.The Financial Commissioner (Railway), Ministry of Railways, Railway Board, Rail Bhawan, New Delhi.
4.The General Manager, East Central Railway, Hajipur.
5.The Financial Advisor & Chief Accounts Officer, E.C. Railway, Mahendrughat, Patna.
6.R.K. Manocha, S/o not known, SAG, C/o F.A. & C.A.O., Northern Railway, New Delhi.
7.Pawan Kumar Bansia, S/o not known, SAG, C/o FA & CAO, Northern Railway, New Delhi.
8.Sanjay Lavania, S/o not known, SAG, C/o FA& CAO, Northern Railway, New Delhi.
9.Ms. Manika Jaiswal, W/o not known, C/o FA & CA), Western Railway, Mumbai.
10.Ms. Ruby Ahluwalia, W/o not known, SAG, C/o FA& CAO, Western Railway, Mumbai.
11.A.K. Singh, S/o not known, SAG, C/o FA & CAO, SEC Railway, Bilaspur.
12.Prashant Mishra, S/o not known, SAG, C/o FA & CAO, Northern Railway, New Delhi.
13.Ms. Indumati Srinivasan, W/o not known, SAG, C/o FA & CAO, South Western Railway, Hubli.
14.S.K. Pandey, S/o not known, SAG, C/o FA & CAO (Workshop Project), Chamber Bhawan, Patna.
15.M. Devraj, S/o not known, SAG, C/o FA & CAO, Southern Railway, Chennai.
16.Ved Prakash, S/o not known, SAG, C/o Ministry of Defence, Government of India, New Delhi.
17.Chandra Sekhar Rao, S/o not known, SAG, C/o FA & CAO, East Coast Railway, Bhubaneshwar.
18.Joginder Singh Thakur, S/o not known, SAG, C/o FA & CAO, Northern Central Railway, Jaipur.
19.P. ijay Kumar, S/o not known, SAG, C/o FA & CAO , Eastern Railway, 17., Netaji Subhash Road, Kolkata.
20.The Railway Board, Ministry of Railway to Government of India, New Delhi through its Chairman.
21.The Railway Recruitmen Board, Allahabad through its Chairman.
............ Respondents.
By Advocate : Shri A.K. Singh
O R D E R
Urmita Datta (Sen), Member[J]: - This OA has been filed by the applicant seeking the following reliefs:-
(i)The impugned order dated 20.11.2007 as contained in Annexure A/1 be set aside.
(ii)After setting aside the impugned order dated 20.11.2007 the applicant may be given the benefit of promotion to the SA Grade from the date of her juniors, i.e. the private respondents have been promoted.
(iii)Any other relief or reliefs may be granted in favour of the applicant as this Hon'ble Tribunal may deem fit and proper.
(iv)Cost of litigation may be awarded in favour of the applicant.
2. The case of the applicant is that the applicant, who was allotted Indian Railway Accounts Service (IRAS in short) of 1986 batch, joined the training on 18.04.1988, and was subsequently promoted and confirmed in the Junior Administrative Grade (JAG in short) in May, 1996. She got Selection Grade w.e.f. 01.01.2002. On 18.06.2007, the Railway Board vide its notification promoted some persons to the SA Grade of the 1996 batch. In the said promotional panel, some seniors along with some juniors to the applicant were also promoted (Annexure A/3). As she was not promoted to the SA Grade, she made a representation to the Financial Commissioner (Railway), Ministry of Railway, Railway Board, New Delhi against the promotion order dated 18.06.2007 (Annexure A/4). The applicant was served with the impugned order dated 20.11.2007 (Annexure A/1) wherein it was informed that she could not be promoted on the basis of totality of performance. Against the said order, she again made a representation. In the meantime, she was promoted by order dated 13/14.03.2008 in the SA Grade (Annexure A/5). It is stated that during this period, the applicant was rewarded by the Railway Administration on a number of occasions and one of such appreciation letter was issued by FA&CAO on 12.10.2007, when she was posted as Dy. A & CAO, Eastern Railway, Kolkata. Apart from this the applicant was also rewarded with cash award under the sanction of the Hon'ble President of India in 2005,2006 and 2007 respectively for her excellent work (Annexure A/6 series). Thereafter, she was posted and joined as SA Grade as FA & CAO/Con-II on 28.03.2008 (Annexure A/7 and &7/1 ). Subsequently, by order dated 09.06.2008, the applicant was transferred as FA & CAO, Madhepura and was ordered to look after the FA & CAO/DLF/Madhepura vide order dated 25.08.2008 in addition to her own duty. The applicant again made a representation on 20.08.2008 to the Financial Commissioner, Railway Board through proper channel stating that she had wrongly been denied her due promotion in the SA Grade whereas her juniors of 1986 batch were promoted and and no adverse remarks were communicated to her by the Railways at any relevant time and she has been promoted in SA Grade on the basis of the same ACRs (Annexure A/8). The said representation is still pending. Being aggrieved with, the applicant has filed the instant OA. It has been submitted that since no adverse remark was communicated to her as per the decisions rendered by the Hon'ble Apex Court in the case of Dev Dutt Vs. Union of India & Ors reported in AIR 2008 SC 2513 and Abhijit Ghosh Dastidar Vs. Union of India & Ors ( 2009 16 SCC 146), the non communicated adverse entries, if any, should be ignored and she should be promoted retrospectively from the year 2007 along with her junior batch mates since on the same set of ACRs, she was found fit and promoted.
3. The respondents have filed their written statement, wherein it is stated that in terms of Rule 209(D) of the Indian Railway Establishment Code (IREC) Vol. I, all appointments to the posts in Senior Administrative Grade (SAG) shall be made by selection on merit. This selection is made by a very high level Selection Committee comprising the Chairman, Railway Board and other Members of the Railway Board. The recommendation of the Selection Committee are considered and approved by the higher authorities in the Ministry of Railways. The procedure for holding such selection is contained in Ministry of Railways letter dated 3.6.2002 and as per this letter the benchmark for promotion to SA Grade is very good and, therefore,those whose performance fall below the benchmark are not eligible for empanelment to SA Grade. As per para 6 of the said letter, Annual Confidential Reports (ACRs in short) are the basic inputs on the basis of which assessment is to be made by the DPC while considering the claims for promotions of the eligible officers. Moreover, the DPC is not to be guided merely by the entries in the ACRrs, but will mark its own assessment on the basis of the entries in the ACRs (Annexure R/1). The applicant was considered for promotion to SAG and the Committee approved the panel on 10.04.2007, but did not found suitable for promotion to SAG. However, she was promoted to SAG in the next year panel approved on 25.02.2008. It is stated that an employee has only the right to be considered for promotion and having not been found fit, the applicant was not eligible for promotion as the issue was not found fit on the basis of totality of performance. It is stated that the panel which was approved on 10.04.2007, ACRs upto March, 2006 were considered, whereas in the panel approved on 25.03.2008, ACRs upto to March, 2007 were considered. Thus, she was promoted not on the basis of same ACRs. It is further submitted that non communication of adverse entries does not necessarily mean that applicant was otherwise fit to be promoted in SAG. In addition to this, there are no instructions to communicate any average entries and grading below bench mark prescribed for promotion. As the benchmark prescribed for promotion of Govt. employees is related with assessment and grading made by the DPC and encompasses several years performance and not related with entries/assessment and grading recorded in ACRs of the Government employees, which has specific reference to a particular year's performance and hence the applicant has no right to be promoted from the year 2007.
4. The applicant has filed rejoinder wherein she has more or less reiterated the same submissions made in the OA. It is also submitted that even in the written statement the respondents have not disclosed the reasons for not promoting her to the post of SAG in 2007.
5. We have heard the learned counsel for both the parties and perused the records as well as minutes of the DPC held on 28.02.2007 and 13.03.2007 to select suitable Selection Grade/JA Grade Officers of IRAS for empanelment to Senior Administrative Grade (Rs. 18400-22400/-). We note that the applicant's contention is that she was never communicated with any adverse remarks though she was rewarded with the award sanctioned by the President of India in 2005,2006 and 2007. Moreover, more or less on the same ACR except one ACR for the year 2007 she was promoted in the next year , i.e. 2008. Whereas, the contention of the respondents is that not only the ACRs but overall assessment has to be made by the DPC. Hence, the applicant has no right to be promoted from the year 2007. It is observed that the main issue here is non communication of adverse remark and any subsequent effect in her promotion. On perusal of the minutes of the DPC for the year 2007, we find that as the benchmark for this promotion is very good, for the purpose of assessment for the year 2007, ACRs for the year ending March, 2002 to March, 2006 were taken into consideration. It is seen that for the year ending March, 2002 and March, 2003 she was graded with very good, but for the year ending March, 2004 and some part of the year ending March, 2005 she was graded with good and thereafter for the period ending March, 2006 she was graded with very good. Thus, she was declared unfit and according to the parties for the year 2008, she was assessed on the basis of ACR of the year ending March 2003 to March 2007. From the above it is observed that instead of the grading for the year ending 2001-02, her ACR for the year ending 2006-07, was considered for the year ending March, 2008, wherein in both the year grading of 'good' for the year 2003-04 and some part of the year 2004 - 05 was considered.
6. During the course of hearing, the learned counsel for the applicant has also referred to one judgment passed by the CAT Full Bench, Ernakulam reported in 2002(1) ATJ page 26 in the matter of I. Raju Vs. Chairman, Managing Director, BNSL, New Delhi.
7. The question as to whether such downgradation of ACR would amount to adverse remark and thus it would be required to be communicated or not fell for consideration before the Hon'ble Apex Court in the case of U.P. Jal Nigam and Ors. Vs. Prabhat Chandra Jain & Ors. (1996) 2 SCC 363 , wherein it is held that in the event the said adverse remarks are not communicated causing deprivation of employee to make an effective representation, these should be ignored. This principle was followed by different High Courts. Thereafter, the case of U.P. Jal Nigam was subsequently considered by the Division Bench of Hon'ble Apex Court in the case of Dev Dutt Vs. Union of India [ AIR 2008 SC 2513] wherein the Hon'ble Apex Court had considered the communication of entry in ACR for a public servant other than Military service. In the case of Dev Dutt (supra), the Hon'ble Apex Court has cited the decision in State of Gujurat and Anr. Vs. Suryakant Chunilal Shah, 1999(1) SCC 529, in which it was held, Purpose of adverse entries is primarily to forewarn the Government servant to mend his ways and t o improve his performance. That is why, it is required to communicate the adverse entries so that the Government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance. The two Judges Bench of Hon'ble Apex Court in the case of Dev Dutt (supra) after considering the judgments passed in Maneka Gandhi Vs. Union of India & Ors. AIR 1978 SC 597 and A.K. Kraipak & Ors. Vs. Union of India & Ors. AIR 1970 SC 150 (both are Constitutional Bench) ; Mohinder Singh Gill & Anr. Vs. Chief Election Commisioner & Ors. AIR 1978 SC 851, and State of Maharashtra Vs. Public Concern for Governance Trust & Ors.2007 (3) SCC 587, and distinguishing the case of Union of India Vs. Major Bahadur Singh, 2006(1) SCC 368, had concluded that every entry in the ACR of a public servant must be communicated to him within a reasonable period whether it is poor, fair, average, good or every good. Thereafter also the three Judges Bench of Hon'ble Apex Court in the case of Abhijit Ghosh Dastidar (2009) 6 SCC 146 following the case of Dev Dutta (supra) has held as under:-
...................... Coming to the second aspect, that though the benchmark very good is required for being considered for promotion admittedly the entry of good was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having very good in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entires good if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed or the nature of the grading given to him.
8. Recently, on a similar issue a three Judge Bench judgment of the Hon'ble Apex Court dated 23.04.2013 in the case of Sukhdev Singh Vs. Union of India & Ors. as reported in 2013 (STPL) Web 381 in Civil Appeal No. 5892 of 2006 after following the above mentioned judgments specifically after discussing the case of Abhijit Ghosh Dastidar (supra), has affirmed the view taken in abovementioned case. However, different benches of this Tribunal including Full Bench of CAT Ernakulam Bench in the case of I. Raju (supra) has also taken the view that uncommunicated adverse remarks cannot be relied on by the DPC.
9. In view of the above legal position, we are of the opinion that non communication of ACR, which is affecting promotion of the applicant, is illegal. We are also not convinced with submission of the respondents that there was no need/instruction to communicate the below benchmark remark. Accordingly, we direct the respondents to convene a review DPC ignoring the adverse entry (good) during the period March, 2004 and some portion of March, 2005 and to consider her case for promotion as per law, and if she is otherwise found eligible, she would be promoted retrospectively from the year 2007 on notional basis without any back wages as she has already been promoted from 2008. This process should be completed within four months from the date of receipt of this order, and the outcome of such DPC to be communicated to the applicant within one month thereof. Accordingly, this OA is disposed of . No order as to costs.
[ A. E. Ahmad ] [ Urmita Datta(Sen) ] Administrative Member Judicial Member srk.