Central Administrative Tribunal - Hyderabad
Dr. B. Lakshmi Rajyam W/O Dr. B. ... vs The Secretary To Government Of India, ... on 21 August, 2007
ORDER
M. Jayaraman, Member (Admn.)
1. The applicant has filed the subject OA with a prayer to declare as illegal the action of the Respondent Nos. 1 and 2 in not promoting her to the Senior Administrative Grade cadre with effect from the date of promotion of her junior i.e., The respondent No. 3 as per the DPC recommendations for the years 2002-03 and 2003-04 and not considering the Order in OA No. 132/2005, and consequently direct the Respondents 1 and 2 to promote the applicant to the cadre of Senior Administrative Grade with all consequential benefits.
2. The brief facts here are that the applicant was selected by the UPSC for the post of Medical Officer Group-Ain 1975 and the 1st respondent posted her in the P&T Dispensary, Vijayawada on 15.5.1975. She was later transferred to CGHS and was promoted to the cadre of Chief Medical Officer on 12.7.1988. She was further promoted to the cadre of CMO Non Functional Selection Grade with effect from 1.1.1992. She is presently working as CMO, ATI Dispensary, Vidyanagar, Hyderabad. By virtue of her seniority and good record of service, she was due for promotion to the Senior Administrative Grade in the pay scale of Rs. 18400-22400. While she was working as CMO, CGHS, Hyderabad, she was nominated as a Member, Purchase Committee, which consists of five Medical Officers including the Addl. Director, CGHS, duly assisted by a Pharmacist and a Store Superintendent, for procuring medicines for the various CGHS Units of the city during the period from 1991 to 1994. The applicant was issued Rule 16 charge sheet on 5.10.2001. While the charge sheet was pending, the applicant's case for promotion to SAG came up in 2004 and her case was kept in a sealed cover. A penalty of Censure was imposed on the applicant, vide order dated 19.8.2004. Challenging the said order, the applicant filed OA 132/2005. During the course of the hearing, the Senior Central Government Standing Counsel produced a sealed cover on 24.6.2005 as per the directions of the Bench which was opened in the presence of all the parties and it was found that the Departmental Promotion Committee had assessed the applicant fit for each of the years 2002-03 and 2003-04. On the basis of the assessment, the DPC had recommended her name to be included in the panel at Serial No. 16(A) for the years 2002-03 below Dr. (Ms.) M.S. Jayalaxmi at serial No. 16 and above Dr. (Ms) Anitha Nanda at serial No. 17 subject to securing clearance in the vigilance case which was pending and on furnishing of the requisite certificate from the competent authority. Accordingly, the Hon'ble Tribunal observed, vide para 8 of the order dated 8.9.2005 that the respondents were at liberty to pass appropriate orders as per rules and dismissed the OA. Subsequently, the order dated 24.4.2006 was issued appointing 31 CMOs (NFSG) to the Supertime Administrative Grade in the pay scale of Rs. 18400-22400 but the applicant's name did not figure therein. Aggrieved by the above, the applicant has filed the present OA.
3. The main grounds on which the applicant has filed the present OA are that the suitability for promotion is to be decided by the DPC and in the applicant's case, the DPC was headed by the UPSC and if the ACC has to differ from the DPC recommendation it should have given reasons. The applicant submits that the ACC is not the rule making authority and if the DPC finds her suitable for promotion, the penalty of Censure cannot stand in the way. In support of the above contention, the applicant relied on the decisions of the Hon'ble High Court of Kerala in the case of Manager, P&T Motor Services v. Punnose reported in 1979 KLT 286 and SLR 586 1970; and S. Mukundan v. State of Kerala reported in 1970 Lab. I.C. 897. The applicant further submits that the ACC does not have power to find some one fit or not and it cannot consider the suitability. Even in promotion cases of officers where the UPSC is not involved, the appointing authority cannot deviate from DPC recommendation without giving reasons. It is the contention of the applicant that the ACC consisting of the Hon'ble Prime Minister, the Hon'ble Home Minister and the Hon'ble Minister for Health and Family Welfare are agreeable for her promotion, but the Cabinet Secretary who is not the Member of the ACC is influencing the ACC whereas he is expected only to carry out the orders of the ACC. The applicant further contends that the present Cabinet Secretary wants to bar one who is suffering from a Censure from getting SAG but even if this is to materialize it can materialize only after the DoPT amends the rule and his efforts can have only prospective effect. The further ground taken by the applicant is that she was selected by the DPC for the year 2002-03 and 2003-04 and when her case was reconsidered by the DPC for 2004-05 and when the punishment was only Censure, she was entitled for the promotion to SAG from the original date according to her turn below Dr. M.S. Jayalaxmi and above the 3rd respondent, from the original date as per the DPC recommendations, DoPT orders dated 16.2.1979, and the Hon'ble Tribunal's order dated 24.6.2005 in OA 132/2005 and there is no ground to deny the same.
4. The above pleadings have been opposed by the respondents who have filed a detailed reply statement. The respondents have stated that the applicant was considered for promotion from CMO (NFSG) to SAG by the DPC held in UPSC on 18th to 20th August 2004 among other officers who became eligible during the year 2002-03 and 2003-04. She was not cleared from vigilance angle and as such the DPC directed to keep the recommendations in respect of the applicant in a sealed cover. Subsequently, vide Vigilance Section's order dated 19th August 2004, a penalty of Censure was imposed on her. As per the DoP&T instructions on the subject, if any penalty is imposed on the Government servant as a result of the disciplinary proceedings, the finding of sealed cover shall not be acted upon. As such, the findings of the sealed cover in respect of the applicant could not be acted upon and her case for promotion was again forwarded to UPSC for consideration along with other eligible officers during the year 2004-05. In the meantime, the applicant filed OA 132/2005 against the Vigilance Order dated 19.8.2004 and the same was disposed of by the Hon'ble Tribunal vide its order dated 8.9.2005 inter alia directing that in respect of the order of penalty there is no reason to interfere with the decision taken by the competent authority. Since the sealed cover procedure has been adopted by the respondents and the same has been opened by the Hon'ble Tribunal in the presence of all the parties and it was found that the DPC has assessed the applicant fit for each of the years 2002-03 and 2003-04, they are at liberty to pass appropriate orders as per rules. The applicant's case was considered by the next DPC in its meeting held on 1.12.2005 in UPSC and the applicant was recommended as fit for promotion. However, the ACC, while according their approval, directed that the DPC should reassess the case of the applicant. The UPSC was, therefore, requested to reassess, who in turn had stated that no new facts have been brought out for reassessment of the applicant nor any reasons have been stated for not accepting the DPC's recommendations. DoPT was hence requested to intimate the requisite information and the ACC informed that the applicant was considered as Unfit for promotion to SAG on account of the minor penalty of Censure imposed on her on 19.8.2004.
5. The respondents submitted that the applicant, while working as CMO (NFSG) in CGHS Hyderabad during the year 1991-94, was nominated as a Member of the Purchase Committee for procuring annual requirements of medicines for the CGHS dispensaries in the city and committed grave misconduct while functioning as a Member. During the year 1993-94, she had mechanically signed the letters dated 12.8.1993 and 19.8.1993 indenting the medicines for the year 1993-94 without ascertaining that more quantity of medicines were indented than the quantities required by the CGHS dispensaries; several no formulary medicines were indented in place of formulary medicines and indented combination medicines in place of generic single medicine. The case was entrusted to CBI and based on the CBI investigation, its findings and recommendation and after following the due process in consultation with the CVC and UPSC, disciplinary proceedings were completed and a penalty of Censure was imposed against the applicant in connection with the case. It is submitted that since the Censure is a minor penalty, the contention of the applicant that Censure is not a bar for promotion is denied. It is further submitted that the DPC is only a recommendatory body and the recommendations of the DPC are subject to approval by the appointing authority. In the present case, the appointing authority did not approve the recommendations of the DPC in respect of the applicant on account of the minor penalty of Censure imposed on her on 19.8.2004 and the appointing authority is free either to accept or not to accept the recommendations of the DPC. The respondents relied on a decision of the Hon'ble Central Administrative Tribunal, Chennai bench in the case of V. Subramanian v. Ministry of Urban Development in OA 736/2005 (Copy enclosed as Annexure-I to the reply) to state that the ACC in that case, also did not accept the recommendations of the DPC held in UPSC and the Hon'ble Tribunal upheld the decision of the ACC. The respondents, therefore, prayed for dismissal of the OA.
6. The applicant filed rejoinder reiterating the pleas made in the OA. The applicant submitted that the Purchase Committee has an advisory and recommendatory role only and it is not an indenting signing authority. It is the Head of Office (Additional Director) who takes a final decision and signs the indent before sending to MSO. The applicant denied that she signed the letter indenting the medicines without ascertaining that more quantity of medicines were indented than the quantities required by the CGHS dispensaries. The decision taken was of the Purchase Committee and not a decision by the applicant as a Member and there was no malafide intention as it was a collective unified decision of all the Members including the Head of the office. While the decision of the Purchase Committee was taken by all the Members of the committee, the applicant submits that no disciplinary action was initiated against the four Doctors who are the committee Members and the applicant alone was proceeded against under the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The applicant submitted that the advice of the Central Vigilance Commission which was referred to while imposing the penalty, was not supplied to the applicant to enable her to submit representation on the CVC advice and this course of action amounted to denial of principles of natural justice as the advice of the CVC was obtained behind the back of the applicant. The applicant further submitted that the penalty of Censure was issued without conducting any inquiry. The applicant relied on the following case laws:
(i) Decision of the Hon'ble CAT, Chandigarh Bench in OA 1198-CH of 2004 in the case of B.K. Kapur v. Union of India and Ors. reported in 2004 (3) ATJ 169 wherein the effect of Censure came up for consideration before the Full Bench of CAT, Chandigarh Bench.
(ii) Decision of the Hon'ble Supreme Court in the case of State of M.P. And Anr. v. I.A. Qureshi reported in 1998 SCC (L&SW) 1121;
(iii) The decision of the Hon'ble Supreme Court in the case of Union of India v. N.P. Dhamania ;
(iv) The decision of the Madras Bench of the CAT in OA 736/2005 in the case of Shri V. Subramaniam v. Union of India;
7. None appeared for the 3rd respondent. Notice sent to R3 not returned served.
8. The matter was extensively heard through Shri A. Tata Rao, learned Counsel for the applicant and Shri G. Jaya Prakash Babu, learned senior standing counsel for the respondents. During the hearing, the learned Counsel for the applicant made a prayer that the Hon'ble Bench may call for the records to see whether proper procedure has been adopted, particularly regarding the reason for not promoting her. He also stressed on the decision of the Madras Bench of the Hon'ble Tribunal vide decision in OA 736/2005 in the case of Shri V. Subramaniam v. Union of India. This was strongly opposed by the learned senior standing counsel to say that the facts of the case of the Madras Bench are different and that here the reasons for not promoting the applicant have been indicated and so there is no need for calling for the records.
9. We have given our consideration to all the points made in the OA and we have also perused the records and taken note of the arguments put forward by the rival sides. The short point for a decision in this case is whether the applicant is entitled to be promoted in the facts and circumstances of the case and whether the Hon'ble Tribunal needs to interfere in the matter.
10. The admitted facts are that the applicant was issued with a charge sheet which was pending when the DPC met and accordingly her case was put in a sealed cover giving recommendations for promotion on the basis of the reports and the position as on the date of the DPC. However, by Order dated 19.8.2004, the applicant was visited with the punishment of Censure. Accordingly, the DPC which met last for the years 2004-05 had also considered her and recommended for promotion to the ACC. However, it is the ACC which has not agreed with the recommendations. As stated by the respondents, the ACC while according their approval on the recommendations of the DPC has directed that the DPC should re-assess the case of the applicant and accordingly, the UPSC was requested to re-assess the same for promotion to the Supertime scale. However, the UPSC had stated that no new facts have been brought out for re-assessment nor any reasons were given for not accepting the recommendations. It is seen that the ACC informed that the applicant was considered as unfit for promotion to SAG on account of the minor penalty of Censure imposed on her on 19.8.2004. In these circumstances, we are not impressed with the pleadings made by the learned Counsel for the applicant. It is an admitted fact that the DPC is only a recommendatory body and it is for the appointing authority to accept the recommendations of the DPC or not. The appointing authority has the discretion either to accept or reject the recommendations of the DPC. It is also an admitted fact that the applicant had been imposed a minor penalty of Censure on 19.8.2004 which fact has not been denied by the applicant. The appointing authority has not accepted the recommendations of the DPC only for this reason.
In view of the above, this Bench is of the view that due procedure has been followed in the applicant's case and if the appointing authority for the reason that the applicant has been visited with the penalty of Censure, has not found fit to promote her, it is not for this Hon'ble Tribunal to question the propriety or wisdom of the decision. It is up to the the appointing authority to decide what bench mark should be there for promotion of an officer to the super time administrative grade. This decision is in the realm of the executive decision. The Hon'ble Tribunal could interfere only if it is brought to its notice that due procedure as per law has not been followed. There is no iota of evidence produced by the applicant to show that there has been breach of procedure in this case. In view of the above, this Hon'ble Tribunal cannot interfere in the matter.
11. The learned Counsel for the applicant has repeatedly pleaded for calling for the records of ACC for perusal by the Bench. We are afraid, it does not serve any useful purpose whatsoever. The learned Counsel has relied on the decision of the Hon'ble Madras Bench of the Tribunal which is of no avail because in the case of V. Subramaniam decided by the Madras Bench of this Hon'ble Trilbunal also, the Bench had called for the records because the reason for not promoting the applicant therein was not known. Whereas in the present case, it is already clear that the applicant was visited with the penalty of Censure and so the ACC has not considered her fit for promotion. This being so, there would be absolutely no useful purpose in calling for the records of the ACC and the facts of the case in the cited case of Madras Bench of the Hon'ble Tribunal are different, as pointed by the learned standing counsel for the respondents. In the light of the discussions above, we find no merit in the OA which is liable to be dismissed.
12. We order accordingly. Parties will bear their own costs.