Karnataka High Court
Union Of India vs D V Rangareddy on 10 September, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
1 W.P.No.37687/2014
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF SEPTEMBER, 2014
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
W.P.NO.37687/2014(S-CAT)
BETWEEN:
1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY
MINISTRY OF POWER
SHRAM SHAKTI BHAVAN
NEW DELHI 110 001
2. CENTRAL ELECTRICITY AUTHORITY
REP BY ITS SECRETARY
SEWA BHAVAN
R K PURAM
NEW DELHI 110 066
... PETITIONERS
(By Sri: B PRAMOD, CGC)
AND:
D V RANGAREDDY
S/O D VENKATARAMIREDDY
AGED ABOUT 67 YEARS
RETD EXECUTIVE ENGINEER
SOUTH REGIONAL POWER COMMITTEE
(ERSTWHILE SOUTHERN REGIONAL
2 W.P.No.37687/2014
ELECTRICITY BOARD)
R/AT H NO.1262, 4TH CROSS
MANJUNATHA LAYOUT
R T NAGAR
BANGALORE 560032
... RESPONDENT
(BY SRI: T. NARAYANASWAMY, ADV.)
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.8.1.2014 (ANNEX-A) PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, BANGALORE
IN OA.NO.98/2012 AND GRANT AN INTERIM ORDER TO STAY
THE OPERATION AND ALL FURTHER PROCEEDINGS PURSUANT
TO THE ORDER DTD.8.1.2014 (ANNEX-A) PASSED BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH,
BANGALORE IN O.A.NO.98/2012.
THIS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 02.09.2014 COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J.,
DELIVERED THE FOLLOWING:
ORDER
Present writ petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the Central Administrative Tribunal, Bangalore Bench, Bench, in Original Application No.98/2012 on 08.01.2014.
3 W.P.No.37687/2014
2. Several grounds have been urged in this petition in support of the reliefs sought for. By virtue of the said order dated 08.01.2014, a direction has been given by the Central Administrative Tribunal, (hereinafter referred to as the CAT) Bangalore Bench, to the petitioners to consider the aspect of Non-Functional Upgradation of the applicant-respondent herein ignoring the Annual Confidential Reports for the years 2000- 2001 and for the period from 28.12.2001 to 31.03.2002 and to hold a Review Screening Committee and consider his case for Non-Functional Upgradation with effect from 01.07.2006. Further direction has been issued to complete the said process within a period of three months and to grant all consequential financial benefits that would accrue to him after considering his case for Non-functional Upgradation with effect from 01.07.2006.
4 W.P.No.37687/2014
3. Respondent herein was the applicant before the Tribunal. Petitioners herein were the respondents therein. Parties will be referred to as applicant and respondents as per their ranking given in the Tribunal. Facts leading to the filing of the petition in O.A.No.98/2012 before the Central Administrative Tribunal, Bangalore Bench, under Section 19 of Administrative Tribunals Act, 1985, are as follows:
Applicant joined the Central Electricity Authority (CEA) as Technical Assistant in 1976 and was promoted to the cadre of Extra Assistant Director, which post is now called as Asst. Director Grade-II, in the year 1982.
Later on, he was promoted to the post of Assistant Executive Engineer which is now known as Asst. Director Grade-I through Union Public Service Commission in the year 1985. He was further promoted to the post of Deputy Director/Executive Engineer in the year 1994 and later on he was granted senior time 5 W.P.No.37687/2014 scale in February 2004. The applicant retired on 31.07.2007 on obtaining superannuation. While in service, the applicant had not been communicated with any adverse remarks which would affect his future service. Pursuant to the acceptance of the report of VI Central Pay Commission with effect from 01.01.2006, Officers of the organized group 'A' services in PB III and PB IV were allowed Non-functional Upgradation (NFU). As a result of the same, the applicant was also entitled to the benefit of non-functional upgradation with effect from 01.07.2006. As the said benefit is extended to the employees after due consideration by a screening committee constituted for the said purpose, applicant's name was included for NFU for the year 2006-07.
4. However, the respondent No.2 sent a communication to the applicant in June 2010 informing that the grading in the Annual Confidential Report for the period from 2000-01 and for the period from 6 W.P.No.37687/2014 28.12.2001 to 31.03.2002 were below the benchmark. Soon after the receipt of the said communication, applicant submitted a written representation to the authorities on 01.07.2010 with a request to upgrade low benchmark grading it as 'Very Good' urging that the said communication was made after a lapse of 9 and 8 years respectively and about three years after his superannuation. He had made it clear that neither the Reporting Officer nor the reviewing officer for the periods under reference had issued any oral/written warnings or expressed any displeasure on any of the qualities, field or traits on any occasion, which would justify below the benchmark grading in his ACR for the above periods. He had given reasons as to why he had not undergone four months training on Live Lines maintenance Techniques because of his age and physical ailments and fracture in right hand collar bone.
7 W.P.No.37687/2014
5. According to the applicant, the respondents did not consider his representation in right perspective and just passed an order mechanically in December 2010 upgrading the assessment in the said ACRs from 'Average' to 'Good', on account of which he was not granted non-functional upgradation with effect from 01.07.2006. He was granted the benefit of non- functional upgradation with effect from 08.08.2007 and the same was of no use since he had retired on 31.07.2007 itself due to superannuation. But two employees junior to him were given the said benefit from 01.07.2006 though they were not entitled from that date. Hence, he had sought the relief of upgradation of his benchmark to Very Good so as to get the benefit of NFU with effect from 01.07.2006.
6. In support of his plea put forth before the Department, he had brought to the notice of the 8 W.P.No.37687/2014 authorities that while in service he had developed software packages and had introduced new training Courses with latest topics in the field of power systems and power systems analysis and that the Reporting Officer had mentioned his performance as 'Excellent' in the field of computer. He had also made it clear that he was the only faculty member from EST1 to deliver lecture on flexible AC transmission systems along with Indian Institute of Sciences and Indian Institute of Technology professors being a Masters Degree Holder in Engineer.
7. The respondents herein had submitted their detailed reply by way of written objections in support of the below benchmark grading in his annual confidential reports. It is stated that he had been served with the copy of the relevant ACR so that he could make a representation within 15 days of such communication. The competent authority is stated to have passed a 9 W.P.No.37687/2014 detailed speaking order on the relevant file in regard to the non-granting of non-functional upgradation. The case of two employees junior to him who were given functional upgradations stood on a different footing and therefore the same cannot be considered as a point in his favour.
8. After considering the application, the objections filed thereto, the decisions referred to by the learned counsel appearing for the parties and after perusing the records, the Tribunal has come to the conclusion that the authorities have not adopted a proper approach to the real state of affairs. The Tribunal has come to the conclusion that the Annual Confidential Records in which there is a reference about below benchmark should have been communicated at the earliest and that communication of the same after his superannuation cannot be countenanced as either legal or proper. The Tribunal has come to the conclusion that when the 10 W.P.No.37687/2014 applicant had not been served with any memo or showcause notice or any advise for improving any of his attributes, suddenly incorporating the below benchmark grading in his ACR that too after his retirement would affect future benefits and therefore the approach stated to be adopted is unacceptable. It is this order which is called in question on various grounds as set out in the appeal memo.
9. The case is set out for preliminary hearing. We have heard the learned counsel appearing for the petitioners herein at length.
10. After going through the records and hearing the arguments advanced by the learned counsel for the petitioners following points arise for our consideration:
1. Whether the Central Administrative Tribunal is justified in directing the petitioners to hold a Review Screening Meeting and to consider the case of the applicant for Non Functional Upgradation with effect from 01.07.2006 by ignoring 11 W.P.No.37687/2014 ACRs of the applicant for the period 2000-
2001 and 28.12.2001 to 31.03.2002 and thereafter to grant all consequential financial benefits that would accrue to him?
2. Whether any interference is called for by this Court and if so, to what extent?
11. Admittedly, the applicant joined the Central Electricity Authority (CEA) as Technical Assistant in the year 1976 and retired after attaining superannuation on 31.07.2007 i.e., after the lapse of 31 years. It is borne out of the records that the applicant in question had not been served with any show-cause notice or any memo or any advice throughout his career which would adversely affect his career in any manner. Applicant was promoted to the next higher cadre whenever he was found to be eligible and the last promotion was given to him in the year 2004 as a senior time scale Deputy Director. In fact the applicant had, given a 12 W.P.No.37687/2014 representation as against the adverse benchmark and the respondents had upgraded his benchmark from 'Average' to 'Good'. Of course, even the grading incorporated in his ACR as 'Good' would be considered as below bench mark grading. As a result of the same, he was not granted non-functional upgradation with effect from 01.07.2006.
12. Writing ACRs to an employee is not a mere empty formality. The reporting officer has to assess the overall performance of an employee objectively and the ACRs will have to be sent to the accepting authority at the earliest. If the accepting authority finds any adverse remarks or any remark which is in the nature of advisory remark must be communicated at the earliest so that he can put forth his explanation to the concerned. Of course, an element of subjective satisfaction may creep in while writing ACRs insofar as it relates to the aspects of integrity, honesty and 13 W.P.No.37687/2014 impartiality of the employees concerned. Anyhow, perception of a reporting officer should not play an important role about the employee whose annual confidential report he would write. If possible, the earlier grading given to the employee may also have to be looked into, more particularly, if the grading is found to be very good or excellent in the preceding years.
13. In the case of Dev Dutt Vs. Union of India reported in (2008) 8 SCC 725, the Hon'ble Apex Court has held that all remarks whether good or bad incorporated in the ACRs will have to be communicated to the concerned employee/official at the earliest. Article 14 of Constitution of India has been dealt as length in the said decision.
14. The decision rendered in the case of Dev Dutt's case has been followed subsequently by a bench consisting of three Hon'ble Judges of the Hon'ble Apex Court in the case of Abhijit Ghosh Dastidar Vs. Union 14 W.P.No.37687/2014 of India And Others reported in (2009) 16 SCC 146. It is reiterated that non-communication of entries in ACRs of a public servant (except in the armed forces) has civil consequences as it may affect his promotion or other benefits. It is further reiterated that non-communication is therefore arbitrary and as such violative of an Article
14.
15. While discussing the facts of the said case, Hon'ble Apex Court has held that grading the official in question as Good in his ACRs was a below benchmark grading and this should not have been taken as a sole criteria, more particularly, when his grading was found to be 'Very Good' in the ACR of preceding year. Grading Good in his ACR was not communicated and therefore that was eschewed from consideration.
16. The correctness of the decision rendered in Dev Dutt's case has been again considered in the case of Sukhdev Singh Vs. Union of India and Others 15 W.P.No.37687/2014 reported in 2013 AIR SCW 3801. It is specifically held that every entry in Annual Confidential Report of a public servant must be communicated to him/her within a reasonable period and the law laid down in Dev Dutt's case is found to be legally sound and helps in achieving the following three fold objectives:
17. First objective is that the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more, so that it would help in improving his work and give better results.
18. Second and equally important criteria is that on being made aware of such an entry in the ACR, the public servant may feel dissatisfied with the same and may make a representation for suitable upgradation of the remarks entered in his ACR.
19. Third objective is that it brings transparency in recording the remarks relating to a public servant and 16 W.P.No.37687/2014 the system becomes more conforming to the principles of natural justice.
20. Keeping the law laid down by the Hon'ble Supreme Court in the case of Dev Dutt's case which is reiterated by a Bench consisting of three Hon'ble Judges of the same Court, the ACRs of the applicant in question for the above period should have been communicated without any delay. Furnishing of such ACRs after a lapse of 8-9 years and that too after three years after his retirement cannot be countenanced as either legal or proper. This important aspect has been taken into consideration by the Tribunal while considering the case of the applicant by the Tribunal.
21. In the case of Kazia Mohammed Muzzammil Vs. State of Karnataka reported in (2010) 8 SCC 155, Hon'ble Supreme Court has emphasized the need for proper maintenance of service records of Judicial Officers inclusive of writing of ACRs without any undue 17 W.P.No.37687/2014 delay. In the said decision it is held that non-writing of ACRs in time would adversely affect the administration of justice. It is held that greater stress will be laid upon in ACRs at the time of considering the Judicial Officers for promotion and other service related matters. The analogy of the principles enunciated in the said decision is equally applicable to the facts of the present case.
22. In the case of S.T.Ramesh Vs. State of Karnataka & Anr. reported in AIR 2007 SC 1262, Hon'ble Supreme Court has held that if there is incorporation of good bench mark for several years in the ACRs of an official/Officer, one or two stray entries will not take away the effect of such high bench marks found in ACRs for several years. The principles so enunciated in S.T. Ramesh's case are applicable to the facts of the present case also as there are no adverse remarks at any point of time in the ACRs of the official 18 W.P.No.37687/2014 in question. Even according to the records, good rating is found in the earlier ACRs of the applicant in question.
23. Hence we are of the considered opinion that in the given circumstances of this case, the Tribunal has considered the case of the applicant meticulously and in detail. The Tribunal has adopted a right approach to the real state of affairs. No infirmity or illegality is found in the approach adopted by the Tribunal while giving direction to the petitioners herein. Hence, the writ petition is liable to be dismissed.
ORDER At the stage of preliminary hearing, the writ petition is dismissed. Consequently, the impugned order dated 08.01.2014 passed in O.A.No.98/2012 by the Central Administrative Tribunal, Bangalore Bench, is upheld. 19 W.P.No.37687/2014
There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE JT/-
Ct-RH