Central Administrative Tribunal - Delhi
Ms. Ranju Prasad vs Union Of India & Others Through on 22 September, 2011
Central Administrative Tribunal Principal Bench OA No.2724/2010 New Delhi, this the 22nd day of September, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Ms. Ranju Prasad, I.Po.S Post Master General, Punjab Region, Chandigarh-17. Applicant (By advocate : Mr. O.P. Kalshian) Versus Union of India & Others through 1. The Secretary, Ministry of Communications & IT, Department of Posts, Dak Bhawan, New Delhi-110016. 2. The Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110001. 3. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110011. Respondents . (By Advocate : Mr. Rajesh Katyal for 1st and 2nd respondents and Mrs. B. Rana for 3rd respondent.) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Ms. Ranju Prasad, a Member of the Indian Postal Service (IPoS)of 1988 batch, the applicant herein, through this OA is assailing the recommendation of the Review DPC held on 16.9.2009 declaring her as unfit for promotion to Senior Administrative Grade (SAG) in the pay scale of `18400-22400 (pre-revised) for the year 2008-09 on the ground that she has been awarded a minor penalty of reduction of pay by three stages for a period of three years without cumulative effect vide order dated 27.12.2000, and her assessment for the year 2000-01 has been brought down from Very Good to Good. She has, therefore, come to this Tribunal in the present OA seeking intervention of the Tribunal (i) to quash the minutes of the Review DPC dated 16.9.2009; (ii) to direct the respondents to conduct a fresh Review DPC for her promotion to the SAG for the panel year 2008-09 and (iii) to maintain her seniority vis a vis her juniors.
2. We may refer to those relevant facts of the case by which the above prayers of the applicant can be considered and determined. She visited the Tribunal in an earlier Original Application viz OA No.1950/2002 which was decided on 15.7.2004. In the said OA, her relief(s) were to quash the below bench mark ACRs for 3 years and to direct the respondents to hold review DPC to consider the claim of the applicant for promotion to the Junior Administrative Grade (JAG) from the date her juniors were promoted. The Tribunal passed the following orders in that case :-
11. In the present case, as already referred to above, admittedly the ACRs of the applicant were downgraded and the same had not been communicated to her. Therefore, the applicant can certainly take advantage of the U. P. Jai Nigam case referred to above.
12. Keeping in view our findings aforesaid, since we are holding that the Annual Confidential Reports whereby the performance of the applicant has been downgraded should be ignored, it would be an exercise in futility to consider the plea of the applicant that there were malafides in recording of the same by the reviewing officer. Resultantly, we are not considering the respondents contention that in any case a reviewing authority had also to review the matter to whom no malafides have been imputed. Further discussion in this regard would, therefore, be unnecessary.
13. Resultantly, we allow the present application and direct :
Uncommunicated ACRs after the year 1992 whereby the applicants performance has been downgraded should be ignored.
A review DPC should be called to reconsider the claim of the applicant in accordance with law. The above directions were challenged by the Union of India before the High Court of Delhi in WP(C) No.24003/2005. While dismissing the above Writ, the High Court observed thus :-
5. The aforesaid judgment of Supreme Court in Devdutt vs. Unionof India dnd Others, (2008) 8 SCC 725 has been followed by another Bench of the Supreme Court in a recent case decided on 20.10.08, namely, Abhijit Ghosh Dastidar Vs. Union of India and others. In that case, it is categorically held that if the gradings is below bench mark that cannot be taken into consideration while considering the case of promotion of the aggrieved persons. That case also relates to Indian Postal service. There is, therefore, no reason to depart from view taken in the aforesaid judgment. We accordingly dismissed this writ petition.
6. We are informed by the respondents that following the direction in the impugned judgment of the Tribunal, the DPC was convened by the UPSC. However, the petitioner thereafter approached this court by filing the present writ petition which has been filed after one year and four months of pronouncing the judgment of the Tribunal. In these circumstances, we direct the petitioner to immediately declare the result of the review DPC and give effect thereto. If the respondent no.1 is recommended for promotion, she shall be given the promotion and on that basis shall also be considered for further promotion if the same has become due.
7. With these directions, writ petition is dismissed. Pursuant to the above directions, a review DPC held on 12.1.2005 recommended her promotion to JAG in partial modification of main DPC held on 24.9.97. Thus, she was promoted to the JAG. She was placed between Smt. Anurag Aindri and Shri H.C. Agarwal in the JAG. It was noticed that as the applicant was not promoted to the JAG by the main DPC, her name did not come up in the zone of consideration for promotion to the SAG for which the main DPC was held on 19.1.2009. In the said DPC, Smt. Anurag Aindri and Shri H.C. Aggarwal were recommended for promotion to SAG and were at Sl. No.13 and 14 against the vacancy year 2008-09. In the background of the above facts, a Review DPC was held in UPSC on 16.9.2009 to consider the case of the applicant for the SAG. The Review DPC noted that applicants ACRs were not available for the years 2003-04 and 2004-05 as she was on study leave during the said period and Review DPC considered her two previous ACRs i.e. for the years 2000-01, 2001-02. It was also noted that the applicant was imposed a penalty of reduction of pay by three stages for a period of three years without cumulative effect vide order dated 27.12.2000 for which her overall assessment for the year 2000-01 by the Review DPC had been brought down to Good from Very Good. The Review DPC, following the DOP&T OM dated 18.2.2008, assessed her as Unfit for promotion to the SAG. Thus, the applicant is before this Tribunal in the instant OA.
3. Shri O.P. Kalshian, learned counsel for the applicant would contend that the Review DPC was not conducted in accordance with directions of this Tribunal and Delhi High Court and the Review DPC down graded the applicants ACR grading for the year 2000-01 from Very Good to Good by assuming the powers beyond its jurisdiction in considering the applicant for promotion to SAG for the year 2008-09. It is submitted that the applicants grading in all 5 years ACRs meet the bench mark of Very Good. Further, Shri Kalshian submits that the penalty imposed in the year 2000 has effect only upto 2003 and the DPC for 2008-09 cannot take into account the penalty which does not have any impact. The study leave having been approved by the Government and the applicant being on duty, the said period cannot be ignored for her promotion to SAG. Shri O.P.Kalshian would contend that the down grading of ACR on the basis of penalty is double jeopardy for the applicant and he placed his reliance on the judgment of Honble Supreme Court in Lt. Governor Delhi and Others Versus H.C. Narinder Singh [2004-13-SCC-342]; and also in the case of Shiv Kumar Sharma Versus Haryana State Electricity Board, Chandigarh and Others [1998-Supp-SCC-669].
4. Opposing the above grounds the first and second respondents have submitted the reply affidavit on 18.1.2011 and the 3rd respondent on 7.10.2010. On our directions, the third respondent submitted an additional affidavit on 29.4.2011 enclosing copy of the orders issued by UPSC on 05.06.2008 regarding the treatment of penalties imposed on an officer by the DPC.
5. Shri Rajesh Katyal, learned counsel for the 1st and 2nd respondents would contend that the Tribunal exercising the powers of judicial review had limited role in the matters of promotion and DPC recommendation and should not play the role of an appellate authority. He submits that after applicants promotion to JAG, her case has been considered by the Review DPC for promotion to the SAG as her juniors have been promoted earlier on the basis of DPC recommendation. Further, he informed that in the absence of 2 years ACRs due to her study leave, previous two ACRs were considered and as per the UPSC guidelines her grading was downgraded to Good for the punishment she was imposed on her on 27.12.2000. She was assessed as unfit by the Review DPC in its meeting held on 16.9.2009 for the said SAG post. Shri Katyal contended that the applicants presumption that her performance during the study leave period to be treated as Very Good did not have any supporting rules/guidelines is not correct. The respondents followed para 6.2.1 (C) of the DOP&T OM No.22011/5/86-Estt(D) dated 10.4.1989 and considered her earlier ACRs for the year 2000-01 and 2001-02 in place of her study leave period of 2003-04 and 2004-05, during which period she was paid only leave salary. Referring to the DOP&T OM dated 18.2.2008, Shri Katyal would contend that she was assessed as Unfit by the Review DPC as she could not get Very Good in her five ACRs. He submits that the Review DPC has correctly downgraded the applicants over all ACR grading for the year 2000-01 from Very Good to Good as she has been imposed a penalty in that year, Shri Katyal urges the OA to be dismissed.
6. Endorsing the above contentions advanced by Shri Katyal, Mrs. Bindra Rana, learned counsel for the UPSC submitted copy of the UPSC OM dated 05.06.2008 during the final hearing, as per which she contends that the Review DPC followed two OMs relating to the treatment of penalties imposed on an officer by the DPCs. As per said OMs, there is provision for down grading the overall assessment i.e. from Very Good to Good if the penalty has been awarded before the last assessment year but falling within the assessment matrix. In case of the applicant, the penalty was imposed on her vide order dated 27.12.2000 which would come within the assessment year of 2000-01. As the Review DPC considered the ACR of 2000-01, it was guided by the UPSC order dated 05.06.2008 and rated the applicant for 2000-01 by reducing Very Good to Good. It is also contended that following the DOP&T OM dated 18.02.2008 which envisaged Very Good as the benchmark, the Review DPC found that the applicant is not achieving five Very Good in the five ACRs considered by the review DPC and as such the applicant was declared as Unfit. In view of the above contentions, Ms. Bindra Rana contends that Review DPC has strictly followed the extant guidelines while declaring her as Unfit for the SAG for 2008-09 panel year and the OA is liable to be dismissed.
7. Having heard the contentions of the rival parties, with their assistance, we perused the pleadings as well.
8. The controversy for our consideration and determination is in very narrow compass, namely, whether the recommendation of the Review DPC dated 16.09.2009 declaring her as Unfit and consequently the applicant not being promoted to the SAG for the panel year 2008-09 is legally sustainable?
9. Admittedly, the applicant was promoted to the Junior Administrative Grade pursuant to the judgment of this Tribunal and she was granted JAG grade in partial modification of the minutes of the DPC held on 24.09.1997. Initially, the nonpromotion of the applicant to the JAG stood against her for considering her for the panel year 2008-09 for promotion to the SAG. But the review DPC for JAG held in the year 2005 recommended her to be promoted to JAG. She, therefore, became eligible to be considered for promotion to the SAG for the panel year 2008-09. It is admitted fact that review DPC was convened by the respondents on their own volition and took up the case of the applicant for the said panel year.
10. It is noted that the DOP&T in its OM No.22011/3/2007-Estt(D) dated 18.02.2008 has improved the guidelines for the DPC, more specifically on the bench mark prescription for promotion at the level of Joint Secretary (SAG level) and above. The guidelines dated 18.02.2008 envisage that in order to ensure greater selectivity at higher level of administration, the DPC may ensure that for the promotions to the scale of 18400-22000 and above the prescribed bench mark of Very Good is invariably met in all ACRs of five years on consideration. The guidelines also inter alia prescribes that in cases where the assessment by DPCs are apparently not in line with the grades in the ACRs, the DPC should appropriately substantiate its assessment by giving reasons. The appointing authority would consider those while deciding the suitability of the officer for promotion.
11. In the above backdrop of Policy guidelines issued by the DOP&T, the UPSC has also issued two orders which are relevant and applicable in the present case. The UPSC in its order dated 05.06.2008 has prescribed the methodology to be adopted for treatment of the penalties in the DPC meeting held under the aegis of the UPSC. Para 2 of the order dated 5th June, 2008 which is relevant for the Panel Year 2008-09, reads as follows :-
(2) Penalties of (a) withholding of promotion (b) recovery from pay (c) reduction to lower stage in the time scale of pay by one stage for a period not exceeding 3 years, without cumulative effect (d) withholding of increments from pay (all minor penalties), (e) reduction to lower stage in the time scale of pay for a specified period; (f) reduction to lower time scale of pay, grade, post or service (major penalties).
If the penalty is awarded in the last assessment year or thereafter, the officer is made Unfit only once. That penalty is not considered thereafter.
However, if the penalty is awarded before the last assessment year but within the assessment matrix, the grading for that year is lowered by one level. For example, if the grading is Outstanding, it is reduced to Very Good. Similarly, the Very Good is reduced to Good and Good to Average. This is also given effect only once. In another order dated 05.06.2008, the UPSC also gave guidelines on the manner in which the penalties are to be treated by the DPC. The penalties imposed on the officer in the consideration zone during the last 10 years are indicated in the remarks column of the assessment sheet and in cases where the overall assessment in the ACR is down graded by the DPC on account of penalty, a paragraph is to be incorporated suitably in the minutes of the meeting. In Andhra Bank Versus B. Satyanarayana [2004-2-SCC-657] Apex Court has laid the law that the employer is entitled to lay down policy decision specifying the criteria for grant of promotion to its officers.
12. Following the above guidelines of the UPSC, the Review DPC while considering the case of the applicant noted that the applicant has been imposed penalty vide order dated 27.12.2000 i.e. reduction of pay by three stages for a period of three years without cumulative effect, and had reduced the applicants overall assessment for the year 2000-01 from Very Good to Good. This has stood against the applicant for inclusion in the panel of 2008-09 for SAG.
13. We may refer to grounds advanced in the OA on the associated issues. She raised the issue to treat her study leave period as Very Good for assessment by Review DPC. We examined this aspect also. There is no dispute about the applicants study leave for a period of two years as a result of which no ACR was written for her for the year 2003-04 and 2004-05. The presumptive contention raised by the applicant that 2003-04 and 2004-05 ACRs would have been assessed to be Very Good as the applicant had successfully completed her study leave, but in the absence of any specific guidelines to the effect of presumptive assessment and in the absence of the ACR written by the authorities concerned for those two years, it would not be possible to allow such assumptions and presumptions to issue any direction in this regard to the respondents. We also find that the respondents have followed the DOP&T OM dated 10.4.1989 and have taken for consideration two of her previous year ACRs, namely, 2000-2001 and 2001-2002. Unfortunately, she had suffered the penalty of reduction of pay by three stages for a period of three years without cumulative effect and the said order was passed on 27.12.2000 which comes within the assessment year of 2000-01. UPSC order dated 05.06.2008 stipulated that down grading of assessment would take place if the officer under consideration has been inflicted of punishment in the assessment year. As the applicant has been imposed penalty within the assessment matrix, the review DPC following the guidelines of the UPSC has rightly down graded the ACR for 2000-01 from Very Good to Good. The consideration of previous years ACRs, though doubted by the applicant, is admissible as per the extant guidelines. We are, therefore, of the considered conclusion that the Review DPC has followed the extant OMs, settled guidelines on the ACRs, treatment of penalty while assessing the overall assessment of a particular year by the Review DPC and declared the applicant as Unfit for SAG for the Panel year 2008-09.
14. Having carefully considered the facts and circumstances of the case, we are of the considered view that the Review DPC has followed he prescribed procedure meticulously as per the extant guidelines and its recommendation declaring the applicant Unfit for SAG in the Panel Year 2008-09 is legally sustainable and procedurally maintainable. The applicant has not made out the case calling for our intervention.
15. Resultantly, the Original Application being devoid of merits is dismissed. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /rk/