Central Administrative Tribunal - Chandigarh
Parveen Kumar Malhotra vs Post Graduate Institute Of Medical ... on 21 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.No.1290/CH/2012 Date of Decision: 21.08.2015
Reserved on: 18.08.2015
CORAM: HONBLE MR. SANJEEV KAUSHIK, JUDICIAL MEMBER
HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER
PARVEEN KUMAR MALHOTRA, AGED ABOUT 35 YEARS, S/O SH. BRIJ LAL MALHOTRA, TECHNICAL OFFICER (OPHTHALMIC), ADVANCED EYE CENTRE, PGIMER, SECTOR 12, CHANDIGARH.
Applicant
VERSUS
1. POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH through its President, Ministry of Health & Family Welfare, New Delhi 110011.
2. DIRECTOR, Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh.
3. MS. PRAGATI MATHUR, Presently working as Technical Officer (Ophthalmic), Advanced Eye Centre, Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh.
Respondents
Present: Sh. R.K. Sharma, counsel for the applicant.
Sh. Sanyam Malhotra, counsel for respondents no.1 and 2.
Sh. D.R. Sharma, counsel for respondent no.3.
O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8 (i). Entire record of the case including ACRs of Respondent No.3 may be called for and after perusal there of:
(ii). Office Order bearing No. EII(4)PGI-2012/F-Promotion dated 05.07.2012 (Annexure A-1) issued by respondent No.2 promoting the respondent No.3 to the post of Technical Officer (Ophthalmic) w.e.f. 20.09.2007 by holding a Review DPC, may be quashed.
iii. Action of the respondents in granting seniority at Sr. No. 1 to the respondent No. 3 in the cadre of Technical Officer (Ophthalmic) over and above the applicant, as depicted in the Seniority List supplied to the applicant under RTI vide Letter dated 24.08.2012(Annexure A-2) ignoring the fact that post of Technical Officer (Ophthalmic) is to be filled in on the basis of Merit-cum-Seniority and the applicant is more meritorious in comparison to the Respondent No. 3 as per service record, may be quashed.
iv. Directions may kindly be issued to respondents to grant seniority to the applicant at Sr. No. 1 in the cadre of Technical Officer (Ophthalmic), which he deserves on the basis of his meritorious service record and recommendations of D.P.C. held on 30.07.2007.
2. Background of the matter is that the applicant was initially appointed as Ophthalmic Technician under the Respondent No. 2 on 31.08.2001 and was confirmed as such w.e.f. 31.08.2003. The respondent No. 3 was initially appointed as Optometrist (subsequently re-designated as Ophthalmic Technician under Cadre Restructuring) under the Respondent No. 3 on 08.09.1997 and was confirmed as such w.e.f. 08.09.1999. Thus, the respondent No. 3 was senior to the applicant in the cadre of Ophthalmic Technician. The next channel of promotion from the post of Ophthalmic Technician is to the post of Technical Officer (Ophthalmic), which is a group B post in the pay scale of Rs. 5500-9000 revised to Rs. 9300-34800 with Grade Pay of Rs. 4200. As per the rules governing the post, the sanctioned strength of the posts of T.O. in PGIMER, Chandigarh is 02, to be filled in 100% by promotion on the basis of Merit-cum-Seniority from the Ophthalmic Technicians having 5 years of regular service in the grade (Annexure A-3). Proposal to fill up the 01 post of Technical Officer (Ophthalmic) was initiated in mid 2007. Only two employees in the cadre of Ophthalmic Technician i.e. the applicant and the respondent No. 3 were found eligible for consideration for promotion to the post of Technical Officer (Ophthalmic). After completing the due formalities, a DPC for considering the applicant and respondent No. 3 for promotion was held on 30.07.2007. The available ACR dossiers of the eligible officials for the years 2001-2002 to 2005-2006 i.e. for 5 years were placed before the D.P.C. for consideration. Though there is no bench mark in the Recruitment Rules, yet DPC adopted Good Bench Mark. Summary of the grading in the ACRs is as follows:-
Sr. No. Name 2001- 2002 2002-2003 2003-2004 2004-2005 2005-2006
1.
Ms. Pragati Mathur Average Average (Conveyed) Good Good Average
2. Parveen Kumar Malhotra Good Good Good V.Good V. Good Apparently, the service record of the applicant was/is better in comparison to the respondent No. 3. Since the applicant was meritorious and was fulfilling the requirement of the post and acquired grading above Good, he was recommended by the Group B DPC for promotion to the post of Technical Officer (Ophthalmic) whereas the respondent No. 3 was not recommended due to non-acquiring of her Good grading and also on the basis of observations by Member of the Department of Ophthalmology. The recommendations made by the DPC in its meeting held on 30.07.2007 are reproduced as under: -
The DPC after consideration and detailed discussion recommended the name of Sh. Parveen Kumar Malhotra for promotion to the post of Technical Officer (Ophthalmic). The DPC after consideration and discussion rejected the case of Pragati Mathur for promotion for not meeting of the required benchmark after perusal of ACRs and also on the basis of observation by Member of Deptt. of Ophthalmology. It was thus not only the service record of the respondent No. 3, which became the reason for her rejection for promotion but was also the observation made by member(s) of the DPC including Member from the Department of Ophthalmology. A copy of the recommendations made by DPC in its Proceedings held on 30.07.2007 is attached (Annexure A-4). Thereafter, the recommendations were placed before the President, who is the appointing authority of Group B posts as per rules and the same were approved by him in the month of August/September 2007. Consequently, the applicant stood promoted to the post of Technical Officer (Ophthalmic) vide order E.II(4)-PGI-2007/F-549 dated 20.09.2007 (Annexure A-5). The applicant is working as such till date.
3. Since one more vacancy of Technical Officer (Ophthalmic) became available to be filled, the process for filling up the same was initiated again in May 2008. This time, it was respondent No. 3 and one Sh. Manoj Kumar, who were found to be eligible for consideration. In the noting made by the lower office staff for this purpose, it was also mentioned that the respondent No. 3 stood considered for the post of Technical Officer (Ophthalmic) twice i.e. in the year 2002 and 2007 but was not recommended by DPC. A copy of the noting dated 24.05.2008 (supplied to the applicant under RTI Act) is attached (Annexure A-6). The process could not be finalized thereafter as the vacant post fell to the SC category as per roster point and the candidates eligible including the respondent No. 3 were of OBC category. After more than two years i.e. in 2010, the respondent No. 3 submitted a representation dated 04.10.2010 to the respondent No. 2 stating that she had come to know about the promotion of her junior i.e. the applicant from reliable sources. She had further stated that copies of promotions orders of the applicant or her rejection were not supplied to her and as such she could not represent earlier (Annexure A-7). This representation of the respondent No. 3 was dealt with by the office and the noting dated 20.11.2010 and the subsequent notes are annexed (Annexure A-8). These notes show that after thorough examination of the issue, no procedural lapse was found and it was decided to explain the entire position to the respondent No. 3 personally, which was also done on 14.12.2010, as recorded on noting (Annexure A-8). Thereafter, she submitted another representation dated 19.01.2011 to the President, stating that Average report was not conveyed to her, report furnished by reporting officer should not be taken into consideration and other such issues (Annexure A-9). This representation was followed by yet another representation dated 29.06.2011 (Annexure A-10). The representations were forwarded to the PGIMER authorities by O/o respondent No. 1 for comments. After much correspondence in the matter, PGI authorities initiated the matter for conducting review DPC which was held on 23.03.2013. No final decision could be taken by the Review DPC due to the fact that in her ACR for the year 2006-07, respondent no.3 was overall graded Good by the Reporting Officer but was graded as Average by the Reviewing Officer. The DPC decided to take clarification on this issue and as such reference was made to the Reviewing Officer. The Reviewing Officer, vide his response dated 17.04.2012, observed that he had given the Average remarks in ACR based on the comments of the Reporting Officer regarding technical knowledge and general assessment but since the reporting officer had given the overall assessment as Good, hence it may be considered as Good. However, the comments of Reporting Officer and Reviewing Officer regarding technical knowledge and general assessment of Respondent No.3 as Average still stand. Since all the impediments in promotion of the respondent No. 3 appeared to have been removed after receipt of letter dated 17.04.2012, the file was again moved for conducting meeting of Review DPC (DPC for Group C employees). Thereafter, the formality of holding Review DPC stood completed on 08.06.2012 when the name of the respondent No. 3 stood recommended by the DPC, and that too from the date the applicant stood promoted i.e. w.e.f. 20.09.2007. The recommendations of Review DPC were approved by the respondent No. 2 on 27.06.2012. Resultantly, the respondent No. 3 stood promoted to the post of Technical Officer (Ophthalmic) vide impugned order dated 05.07.2012 (Annexure A-1). After promoting the respondent No.3, the O/o respondent No.2 informed the O/o respondent No.1 vide letter dated 25.07.2012 that the respondent No.3 has been granted promotion as Technical Officer (Ophthalmic) w.e.f. 20.09.2007 i.e. the date on which her junior (the applicant) was promoted to the said post (Annexure A-17). Respondent no.3 was also granted seniority over and above the applicant as was apparent from the seniority list of Technical Officer (Ophthalmic) supplied to the applicant under RTI vide letter dated 24.08.2012 (Annexure A-2). Hence this O.A.
4. In the grounds for relief it has, inter alia, been stated as follows:
i. Apparently, there was/is no irregularity or illegality in the procedure adopted by the DPC held on 30.07.2007 and the recommendations made by the DPC were in consonance of the rules/instructions on the subject. Moreover, these recommendations got the approval not only of the Director of the PGIMER but also of the President of the institute. There was no challenge by the respondent No.3 to the recommendations at any stage. It cannot be believed that she did not know about the promotion of the applicant in the year 2007 despite working in the same Deptt./station. Merely because her rejection was not conveyed to her does not give her a cause of action to rake up the issue at a belated stage in the year 2010.
ii. Right to Information Act came into existence in the year 2005 and is known to majority of the literate Indian population. It is to be seen that its provisions were invoked by the respondent No. 3 in the year 2010 and not earlier. The authorities, without applying their mind, started manipulating for considering her claim for promotion again. This was not a case of review DPC at all and the action of the authorities to this effect is not legally sustainable.
iii. Undisputedly, the applicant was junior to the respondent No. 3 in the cadre of Ophthalmic Technicians but this aspect becomes inconsequential while taking into consideration the situation after promotion of the applicant & rejection of the respondent No.3 for the post of Technical Officer (Ophthalmic). The post of Technical Officer (Ophthalmic) is to be filled on the basis of Merit-cum-Seniority and as such the applicant deserves to be ranked senior to the incumbent promoted after him.
iv. Law is well settled that when the rules provide for promotion on the basis of merit-cum-seniority, the promotion cannot be made only on the basis of seniority if the senior is less meritorious. In Sant Ram Sharma v. State of Rajasthan & Ors., 1968 (1) SCR 111, Honble Supreme Court has pointed out that the principle of seniority ensures absolute objectivity by requiring all promotions to be made entirely on grounds of seniority and that if a post falls vacant it is filled by the person who had served longest in the post immediately below. But the seniority system is so objective that it fails to take any account of personal merit. It is fair to every official except the best ones. An official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. The criterion of merit, on the other hand, lays stress on meritorious performance irrespective of seniority and even a person, though junior but much more meritorious than his seniors in performance irrespective of seniority, is selected for promotion.
v. In the case titled as State of Kerala & Anr. v. N.M. Thomas & Ors., 1976 (1) SCR 906, it was pointed out that where the promotion is based on seniority- cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.
vi. In the case titled as B. V. Sivaiah & Ors vs K. Addanki Babu & Ors, Honble Supreme Court has held that the principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In this case, the applicant is more meritorious and as such can very well steal a march over his senior in the feeder cadre i.e. the respondent No. 3. Judgments in the cases reported as 2001(2) SCT 1116 and 2003(4) SCT 328 can also be quoted in this regard.
vii. The Reviewing Officer, in response to the query raised from him about the Grading given by him to the respondent No. 3 in the ACR for the period from 2006-07, observed that he had given the Average remarks in ACR based on the comments of the Reporting Officer regarding technical knowledge and general assessment but since the Reporting Officer had given the overall assessment as Good, hence it may be considered as Good. This is nothing but favoritism to an employee in as much as for favoring respondent No. 3, the Reviewing Officer has not even desisted himself from commenting against his own observation.
viii. While promoting applicant, his case was considered by Group B DPC, which was approved by the President, which is Competent Authority. However, while conducting review, it has been carried out by Group C DPC and its recommendations have not been approved by the President before promotion of Respondent No.3. Thus, entire action including the promotion and assigning of seniority to Respondent No.3 are liable to be set aside on this ground also.
5. In the written statement filed on behalf of respondents no.1 to 2 it has been stated that the applicant is 4 years junior to respondent no.3 in the cadre of Ophthalmic Technician. However, the DPC recommended the name of the applicant for promotion as Technical Officer (Ophthalmic) against the existing vacancy and respondent no.3 was denied promotion as she did not meet the bench mark of Good on account of her ACR gradings for the period from 2001.02 to 2005-06 which were placed before the DPC convened on 30.07.2007. Had these ACRs of the relevant years which were reckonable for assessing promotion of the officers i.e. ACRs for the period ranging from 2002-03 to 2006-07 been considered instead of ACRs from 2001-02 to 2005-06 then there would have been no supersession by the junior and respondent no.3 would have been promoted on 30.07.2007 itself by the DPC. As a result of denial of promotion and supersession by the junior to the post of Technical Office (Ophthalmic) respondent no.3 made a mercy appeal to the Ministry of Health and Family Welfare, New Delhi and pointed out deficiency in the proceedings of the DPC convened on 30.07.2007 and in pursuance thereof the Ministry of Health and Family Welfare, New Delhi sought comments on her appeal vide its letter dated 19.10.2011 (Annexure R-2). The appeal made by respondent no.3 against denial of promotion to her was examined in detail and respondent no.2 (Director of the PGIMER) vide his office order dated 25.01.2012 directed the matter of respondent no.3 to be placed before Reviewing DPC. The DPC was required to assess the suitability of respondent no.3 for promotion to the post of Technical Officer (Ophthalmic) by considering the service records for the year ranging from 2002-03 to 2006-07. On 30.07.2007 the date when the DPC was convened, the ACR of respondent no.3 for the year 2006-07 was not considered since the same was received later on 25.08.2007, after the DPC had already been held and only her ACRs upto the year 2005-06 were considered, as a result of which respondent no.3, although senior to the applicant was denied promotion. This was a bona fide inadvertent error on the part of the DPC since the guidelines under the instructions dated 08.09.1998 (Annexure R-3) were not brought to the notice of the DPC held on 30.07.2007. The assessment of suitability for promotion was not made by the DPC in an appropriate manner, thereby becoming the cause for denial of promotion to respondent no.3 who though senior was not found fit for promotion on account of not meeting the prescribed bench mark of Good for promotion to post below the pay scale of Rs.12,000-16,500 vide Government of India, Ministry of Personnel and Training vide its OM F. No.35034/7/97/Estt(D) dated 08.02.2002 (Annexure R-4). Moreover, even in these instructions there has been no change issued vide DOPTs OM dated 08.02.2002 about the bench mark being Good for promotion, which can also be perused from the clarification received from the Ministry of Health & Family Welfare vide its letter No.V.17020/69/2009-ME-II dated 08.01.2010 (Annexure R-5). Therefore, in view of these instructions, the matter regarding promotion of respondent no.3 to the post of Technical Officer (Ophthalmic) from retrospective date was placed before the Review DPC in its meeting held on 08.06.2012, which after assessing the ACRs of the relevant years from 2002-03 to 2006-07 which were reckonable for assessment for promotion, recommended the promotion of respondent no.3 as Technical Officer (Ophthalmic) from 20.09.2007, the date on which the junior applicant had superseded her to the post of Technical Officer (Ophthalmic). The Director of the Institute (respondent no.2) upon the recommendations of the Review DPC issued the order of promotion dated 05.07.2012 to this effect.
6. In the written statement filed on behalf of respondent no.3, the response is on similar lines as filed on behalf of respondents no.1&2.
7. Later, PGI authorities in response to a clarification sought by the Tribunal stated by way of affidavit filed on 03.11.2014 that out of the 02 posts, one vacancy already existed at the time of holding the DPC on 30.07.2007 as the said vacancy arose on 30.06.2001, when Shri K.J. Monga, Technical Officer (Ophthalmic) was promoted to the post of Senior Technical Officer. The applicant was promoted to this vacancy as Technical Officer (Ophthalmic) by the DPC and he superseded his senior respondent no.3. The second/other vacancy was a resultant vacancy, which was to arise subsequently, on 24.09.2007, when Shri Pradyumn Singh Technical Officer (Ophthalmic) already holding the post in the cadre, was to be promoted to higher post of Senior Technical Officer. However, in the light of the above, apart from having promoted respondent no.3 retrospectively from the date of her eligibility and from the date her junior/applicant was promoted i.e. from 20.09.2007 on the post of Technical Officer (Ophthalmic), the case of the applicant should have also been examined and thereafter the applicant should have been adjusted on the next resultant vacancy, arising on 24.09.2007, since on 30.07.2007, when DPC was held, there was only 01 vacancy, which was available since 30.06.2001. Since respondent no.3 was given retrospective promotion from 20.09.2007, in that event the junior/applicant was also required to be adjusted on the aforesaid resultant vacancy which was not got done due to oversight.
8. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant reiterated the content of the O.A. He stated that the review DPC proceedings through which respondent no.3 was recommend to be promoted w.e.f. 20.09.2007 i.e. the same date on which the applicant was promoted and placing her above the applicant in seniority smacked of favouritism to respondent No.3. He stated that the ACR for 2006-07 which had been upgraded with the intervention of the PGI authorities 5 years after the same had been recorded was not to be taken into account at all for promotion relating to vacancy that was being filling in 2007-08. In fact as per O.M. No.22011/9/98-Estt. (D) dated 16.06.2000, it was very clear that for a vacancy falling in 2007-08, ACRs upto 2005-06 only had to be taken into account. He also drew attention to the proceedings of the DPC meeting held on 30.7.2007 which made it clear that the DPC had considered and rejected the case of Ms. Pragati Mathur, respondent no.3 for promotion for not meeting bench mark after perusal of her ACRs, and also in view of the observation from the Member of Department of Ophthalmology. He stated that it could be construed from this record of the recommendations of the DPC that the work of respondent no.3 was not satisfactory in the opinion of Member of Department of Ophthalmology and she could not have therefore been considered for promotion at that time. The subsequent review was not in order since ACR of 2006-07 had been considered and on this basis she had been recommended for promotion from the same date as the applicant. Since respondent no.3 was senior to the applicant in the lower post of Ophthalmic Technician, respondent no.3 by getting her case reviewed had sought to gain seniority over the applicant in the cadre of Technical Officer (Ophthalmic). Action of the respondents Institute in circulating the seniority list of Technical Officer (Ophthalmic), showing the respondent no.3 at serial no.1 and applicant at serial no.2 was totally incorrect and the proceedings of review DPC held on 08.06.2012 as well as seniority list supplied along with letter No.EII(4)-PGI-2012/F-RTI dated 24.08.2012 should be quashed.
9. Learned counsels for the respondent Institute and for respondent no.3 reiterated the content of the written statements filed by them.
10. We have given our thoughtful consideration to the matter. The promotion order of the applicant as Technical Officer (Ophthalmic) was issued on 20.09.2007. The second vacancy arose on 24.09.2007. At best respondent no.3 who had been considered and rejected by the DPC which met on 30.07.2007 for promotion against the single post available at that time could have been considered for promotion against vacancy arising subsequent to that against which the promotion order of the applicant was issued. From the material on record it appears that there has been significant manipulation perhaps on the part of the persons in Ministry of Health and Family Welfare and the respondent Institute who were pushing the case of respondent no.3 for her promotion from the same date on which the applicant had been promoted. In fact as is clear from O.M No.22011/9/98-Estt.(D) dated 16.06.2000, ACRs only upto 2005-06 were to be taken into account for the vacancies to be filled in 2007-08. It is not therefore understood why the review DPC took into account ACR of 2006-07. Actions taken regarding getting the comments of Reviewing Officer regarding ACR of 2006-07 also appears to be coloured as proper procedure for representation against remarks in the ACR and review of the same do not appear to have been followed while revising the grading of the respondent no.3 for 2006-07.
11. In view of the above, we are constrained to quash office order dated 05.07.2012 issued by respondent no.2 promoting respondent no.3 to the post of Technical Officer (Ophthalmic) w.e.f. 20.09.2007 by holding a review DPC. The applicant has been promoted as Technical Officer (Ophthalmic) on the basis of recommendations of DPC held on 30.07.2007 and his seniority as per his promotion order of 20.09.2007 cannot be disturbed. Since the applicant was promoted as Technical Officer (Ophthalmic) w.e.f. 20.09.2007 on the basis of recommendations of DPC which did not consider respondent no.3 fit for promotion, the applicant has to remain senior in the cadre of Technical Officer (Ophthalmic) to any person who may have been promoted to this post subsequent to this date. Hence the seniority list appended as Annexure A/2 is also quashed. The O.A. is allowed with these observations.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER (SANJEEV KAUSHIK) JUDICIAL MEMBER Place: Chandigarh.
Dated: 21.08.2015.
kr* 17 OA.No.1290/CH/2012