Central Administrative Tribunal - Delhi
Sanjay Gupta vs M/O Communications on 14 February, 2019
Central Administrative Tribunal
Principal Bench
OA No.3185/2015
With
OA No.3429/2015
New Delhi, this the 14th day of February, 2019
Hon'ble Sh. Justice L. Narasimha Reddy, Chairman
Hon'ble Sh. Mohd. Jamshed, Member (A)
I. OA. 3185/2015
Sanjay Gupta
S/o Sh. P.C. Gupta,
r/o Durga Place, ITI Chowk, Sonepat - 131001
Employed at NTIPRIT,Ghaziabad,
Working as Director, Age- 46 Y.
... Applicant
( In person)
Versus
1. Union of India through its Secretary,
Ministry of Communications & IT,
Department of Telecommunications, Govt. of India,
Sanchar Bhawan, New Delhi.
2. The Secretary,
Department of Personnel & Training
North Block, New Delhi-110001.
... Respondents
(By Advocate : Shri S.K. Tripathi for Shri Gyanendra
Singh)
II. OA-3429/2015
Sanjay Gupta,
S/o Sh. P.C. Gupta,
r/o Durga Place, ITI Chowk,
Sonepat-131001
2
OA No.3185/2015
with
OA No.3429/2015
Employed at NTIPRIT, Ghaziabad,
Working as Director, Age-46Y.
... Applicant
( In person)
Versus
1. Union of India through its Secretary,
Ministry of Communications & IT,
Department of Telecommunications, Govt. of India,
Sanchar Bhawan, New Delhi.
2. The Secretary,
Department of Personnel & Training,
North Block, New Delhi-110001.
3. Sh. Rakesh Garg,
Secretary,
Department of Telecommunications,
Sanchar Bhawan, 20, Ashoka Road, New Delhi.
4. Sh. Narendra. K. Yadav,
Member (S)
Department of Telecommunications,
Sanchar Bhawan, 20, Ashoka Road, New Delhi.
5. Sh. A.K. Mittal,
Sr. DDG (TEC),
Telecom Engineering Centre,
Khurshidlal Bhawan, Janpath, New Delhi.
...Respondents
(By Advocate : Shri Vijendra Singh )
ORDER (ORAL)
Justice L. Narasimha Reddy, Chairman :-
Both the OAs are filed by the same applicant in the context of denial of Non Functional Upgradation (NFU). Hence they are disposed of by a common order. 3 OA No.3185/2015
with OA No.3429/2015
2. The applicant joined the service of the Department of Telecommunications in the year 1994. Thereafter, he was promoted to the post of Director and became eligible to be considered for the benefit of NFU in SAG in the year 2014. The Departmental Screening Committee (DSC) for this purpose met on 05.06.2014. However, on finding that the ACR of the applicant for the year 2008-09 was not available, necessity has arisen to consider the ACR of the year 2007-08. Since that was rated as average, he was not considered.
3. By the time he was considered next, disciplinary proceedings were pending against him. Hence a sealed cover procedure was adopted. The applicant was communicated the below benchmark ACRs for the year 2007-08 through letters dated 04.06.2014 and 19.06.2014, in terms of the judgment of Hon'ble Supreme Court in Dev Dutt Vs. Union of India (2008) 8 SCC 725, to enable him to make a representation for upgradation of the same. However, in his representation dated 20.06.2014, the applicant pleaded that in view of the various judgments of the Hon'ble High Court and Hon'ble Supreme Court, the ACR for the year 2007-08 deserves to 4 OA No.3185/2015 with OA No.3429/2015 be ignored and accordingly he requested that the DSC be required to proceed with his case by ignoring the ACR for the year 2007-08. It was also mentioned that the ACR for the year 2004-05 was incomplete and even on that account also, it deserves to be ignored.
4. At that stage, the applicant filed OA No.2108/2014, challenging the very letters dated 04.06.2014 and 19.06.2014, through which he was communicated the adverse ACRs. The OA was disposed of directing the respondents to consider the representation dated 20.06.2014 submitted by the applicant and to pass a speaking order. Accordingly, the respondents passed an order dated 19.05.2015, informing the applicant as to how and why his case was not considered by the DSC earlier and how the necessity has arisen to communicate the adverse ACRs. It was also mentioned that the plea taken by him as regards the adverse ACRs is not correct. The applicant filed OA No.3185/2015 challenging the minutes of the DSC held on 05.06.2014.
5. The case of the applicant was considered by the DSC in the year 2015 also. However, by taking a view that 5 OA No.3185/2015 with OA No.3429/2015 the ACR for the year 2012-2013 is not complete, it was treated as not available and he was denied the NFU. It was only in the year 2016 that he was extended the benefit of NFU. OA No.3429/2015 is filed challenging the assessment sheet for grant of NFU, wherein the ACR for the year 2012-13, was treated as not available.
6. The respondents filed counter affidavit in both the OAs narrating various facts. It is stated that the denial of promotion for the years 2014 and 2015 was justified on account of the fact that he did not take any steps for upgradation of his ACR for the years 2007-08. Other grounds are also urged.
7. We heard the applicant in person and Shri Vijendra Singh, and Shri S.K. Tripathi for Shri Gyanendra Singh, learned counsel for respondents.
8. It is not in dispute that the applicant became eligible to be considered for extension of the benefits of NFU in SAG in the year 2014. The DSC met for this purpose. The ACR for the period of five years preceding the date of the year of consideration became relevant. The 6 OA No.3185/2015 with OA No.3429/2015 ACR for the year 2008-09 was not available, therefore, a necessity has arisen to move to the next year, namely, 2007-08. During that year, the ACR of the applicant was rated as average.
9. As required under the law that emerged with the judgments of Hon'ble Supreme Court in Dev Dutt (supra), the applicant was communicated the below benchmark ACRs, however, he challenged the very communication by filing the OA No.2108/2014. In compliance of the directions issued therein, an order was passed on 19.05.2015.
10. In his representation dated 20.06.2014, the applicant did not make any request for upgradation of the ACR for the year 2007-2008. On the other hand, his plea was that his ACR was liable to be ignored in its entirety. Reliance was placed on certain orders. It is not out of place to mention that the Hon'ble High Court in WP(C) No.6013/2010 and batch in a judgment rendered on 08.10.2010, categorically held that whatever be the circumstances, in case of employees who are in service, the question of ignoring adverse ACRs does not arise. It 7 OA No.3185/2015 with OA No.3429/2015 was observed that the employee can be given an opportunity to make a representation for improvement thereof. We are not at all satisfied with the approach of the applicant. He was virtually teaching the law to the department, than to make out his grievance. Naturally the respondents have replied in an appropriate manner. When the applicant did not want the ACRs to be upgraded, nobody can help it.
11. Added to that, the vigilance clearance was also not available, when the DSC met in the year 2014. Therefore, we do not take any exception to the denial of NFU to the applicant in the year 2014. The DSC met in the year 2015 and then again the case of the applicant was considered. When the DSC met in the year 2015, the ACR of the applicant for a period of five years backward of 2012-13 became relevant. Though it is mentioned that the ACR for the year 2012-13 is not available on account of the fact that there was no assessment for part of the year, for the benefit of the applicant, we treat it as above benchmark. If we move backward to get the remaining ACRs of four years, it emerges that for the year 2011-12, it was 'Outstanding', for the year 2010-11, it was 'Very Good', for 8 OA No.3185/2015 with OA No.3429/2015 the year 2009-10, it was 'Very Good' and for year 2008-09, the ACR was not available. Therefore, necessity has arisen to take into account the ACR of the year 2007-2008, which was average. Therefore, the applicant was denied the promotion.
12. The very fact that the applicant was promoted in the next DSC held in 2016 discloses that the respondents acted in an objective manner. The entire episode discloses that the applicant did not avail the opportunity of making a representation to upgrade the ACR for the year 2007-08. Even the possibility of the Competent Authority upgrading the ACR for that year was lost on account of the applicant being reluctant to seek the relief in that behalf.
13. We do not find any merit in both the OAs, and the same are, accordingly, dismissed.
There shall be no order as to costs.
( Mohd. Jamshed) (Justice L.Narasimha Reddy)
Member (A) Chairman
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