Central Administrative Tribunal - Chandigarh
Sukhdev Singh vs M/O Skill & Development ... on 17 December, 2024
1 (OA No. 060/212/2017)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Reserved on: 04.10.2024
Pronounced on: 17.12.2024
OA No. 060/212/2017
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA, MEMBER (A)
Sukhdev Singh son of Shri Jaswant Singh, Joint
Director of Training, Head of Department, Ministry of
Skill Development and Entrepreneurship, Advance
Training Institute, Government of India, Jodhpur,
resident of Kirpal House, 465, Phase II, Urban Estate,
Patiala-147001.
.......... Applicant
(BY Advocate: Sh. K.B. Sharma)
Versus
1. Union of India through the Secretary, Government of
India, Ministry of Skill Development and
Entrepreneurship, Shivaji Stadium, New Delhi.
2. The Secretary, Government of India, Department of
Personnel and Training, Government of India, New
Delhi.
3. Union Public Service Commission through its
Secretary, Shah Jahan Road, New Delhi.
4. The Director of Advanced Training Institute,
Department of Ministry of Skill Development and
Employment, Government of India, Gill Road,
Ludhiana-141003.
.................Respondents
(BY Advocate: Ms. Swati Arora for respdts. No. 1, 2
&4
Sh. B.B. Sharma for respdt. No. 3)
2 (OA No. 060/212/2017)
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. This Original Application has been filed under Section 19 of the A.T. Act, 1985 seeking the following relief(s):-
"(i) That order/direction be issued to the respondents to convene special DPC to consider the applicant for promotion to the next higher grade of Joint Director with effect from the date on which his immediate junior was promoted ignoring the downgraded ACRs without any legally admissible evidence, of the applicant for the year 1998-99, 1999-2000 and 2000-2001 which were not communicated to the applicant as per law and treating the downgraded ACR at par with Benchmark ACRs.
(ii) The respondents be directed as per law and the judgement passed by Hon‟ble Court of India in Civil Appeal No. 5892 of 2006 dated 23.05.2013, to consider the case of applicant to give the benefit of promotion to the applicant with effect from the date on which his immediate junior was promoted as Joint Director and the benefit of subsequent promotions with effect from the date when the immediate junior of the applicant has been promoted with all the consequential benefits from 2002 onwards.
(iii) Quash partially the impugned order No. DGT-
C-52011/03/2014-Admn. II dated 11.04.2016 Annexure A-1 issued by the respondent No. 1 rejecting to upgrade the ACRs of the applicant for the years 1998-99, 1999-2000 and 2000-2001.
2. The factual matrix of the case is that the applicant was appointed as Deputy Director of Training on being recommended by Union Public Service Commission 3 (OA No. 060/212/2017) (Respondent No. 3) in the pay scale of Rs. 3000-4500 on 13.11.1992 (Annexure A-3) and was posted at Advanced Training Institute Mumbai and thereafter was transferred to Ludhiana where he joined on 13 th February, 1995 in the office of Respondent No. 4. The applicant was sent to attend the training programme on Computer Applied Technology to be held in Inchon Republic of Korea from 01.07.1996 to 31.08.1996 vide letter dated 26.06.1996 (Annexure A-4). The applicant was sent on deputation for affiliation work at DGE&T, New Delhi and Bangalore for advanced training vide letter dated 05.12.1997 (Annexure -5). Again, the applicant was sent on deputation to DGE&T Headquarter to carry out urgent affiliation work vide letter dated 06.02.1998 (Annexure A-6). Vide letter dated 11.12.2000 (Annexure A-7), the applicant was directed to proceed to DGE&T New Delhi for collecting relevant information in connection with the status of ITI/ITC of Punjab, Haryana and Chandigarh and subsequently to visit the State Directors of Punjab and Haryana and Chandigarh for upgrading the said information as per the direction of Director of Training DGE&T New Delhi. The applicant was entrusted with 4 (OA No. 060/212/2017) current charge of higher posts, i.e. the posts of Director or Joint Director which the applicant performed with efficiency number of times. Applicant had outstanding Annual Confidential Reports. The next promotional post is that of Joint Director Training which is selection post and the selection is made on the basis of the ACRs by DPC. The benchmark for promotion to the post of Joint Director of Training is "Very Good" and the procedure to be observed by DPC for selection post has been laid down by Government of India, Department of Personnel and Training OM dated 08.02.2002 which has again been reiterated in the GOI DoP&T OM dated 18.02.2008 and the relevant portion of this OM is as under:- 3.2 Benchmark for promotion:-
The DPC shall determine the merit of those being assessed for promotion with reference to the prescribed benchmark and accordingly the grade of the officers as „Fit‟ or „Unfit‟ only. Only those who have graded as "Fit" (i.e. who made the prescribed benchmark) by the DPC shall be included in the selection panel in order to their inter-se seniority due in the feeder grade. Those officers who have been graded „unfit‟ (in terms of the prescribed benchmark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded „Fit‟ (in terms of prescribed benchmark) by the DPC.
3.3 Promotion to the revised pay scale (grade) of Rs. 12000-16500 and above:-5 (OA No. 060/212/2017)
i) the mode of promotion as indicated in paragraph 3.1 above shall be selection.
ii) the benchmark of promotion, as it is now shall continue to be „very good‟. This will ensure element of higher selectivity in comparison to selection promotions to the grades lower than the aforesaid level where the benchmark, as indicated in the following paragraphs, shall be good only.
iii) The DPC shall for promotion to the said pay scale (grade) and above, grade officers as „Fit‟ or „Unfit‟ only with reference to the benchmark of very good. Only those who are graded as „Fit‟ shall be included in select panel prepared by DPC in order of their inter-se seniority in the feeder grade. Thus as already explained in the paragraph 3.2 above, there shall be no supersession in the promotion among those who were found fit by the DPC in terms of the aforesaid prescribed benchmark of very good.
3. It is averred in the OA that the name of the applicant was considered by the respondent No. 3, UPSC in its DPC alongwith the private respondents. However, in view of downgrading entries in the ACRs made by the respondent No. 4, the applicant was denied the promotion to the post of Joint Director of Training whereas the private respondents who were junior to the applicant, were promoted as Joint Directors vide order dated 24.12.2002 (Annexure A-8).
4. The applicant made a representation dated 07.03.2016 to the respondents No. 1 & 2 as the applicant was denied the promotion and his juniors were allowed to score march over. It was 6 (OA No. 060/212/2017) categorically written that the downgraded entries from excellent/very good to good/average for the years 1998-99, 1999-2000, 2000-2001 and 2001-2002 respectively were not communicated to the applicant but were considered by DPC at the time of promotion and it was requested for reconsidering the case ignoring the said ACRs. But, the representation of the applicant was rejected vide Annexure A-1 dated 11.04.2016. Vide Annexure A-9 dated 07.02.2003, the applicant was informed that the DPC convened by Respondent No. 3 has not recommended the case of the applicant for promotion to the grade of Joint Director of Training vide letter dated Annexure A-9.
5. The applicant filed the OA No. 287/PB/2007 before this Tribunal but this OA was dismissed on 03.04.2003 (Annexure A-10) holding that "Benchmark for promotional post was very good. Since the applicant could not reach the benchmark, he was found unfit for consideration to the promotional post of Joint Director of Training. The adverse remarks were required to be communicated and the remarks which are not adverse". The applicant filed a Civil Writ Petition No. 6620 of 2003 challenging order 7 (OA No. 060/212/2017) dated 03.04.2003. The respondents filed a reply to this CWP whereby it transpired that the Reviewing Officer Sh. Deepak Karmakar, the Director of Advanced Training Institute, Gill Rod, Ludhiana had expired on 16.09.2003. In the similar matter UOI also filed a Civil Writ Petition No. 18833/CAT/2002 before the Hon‟ble Punjab and Haryana High Court in which the Hon‟ble High Court held that the case was decided by tribunal on its own facts and it is not necessary to communicate the remarks, grading which are not below the benchmark prescribed for promotion to a particular post in respect of selection posts.
6. The Civil Writ Petition No. 6620-CAT/2003 was dismissed vide order dated 04.07.2005 holding as under:-
"in the index the learned counsel for petitioner has mentioned that this matter was identical to Civil Writ Petition No. 18833 of 2002 (Union of India Vs. Col Tilak Raj). As per Annexure R-1 appended with reply, the aforesaid writ petition has already been dismissed at a time when the writ petition came up for motion hearing.
We accordingly dismissed the writ petition."
Lateron, it transpired that the decision of the Hon‟ble High Court in CWP No. 18833 of 2002 (Union of India Vs. Col Tilak Raj) was against the Union of India and wrongly the Civil Writ Petition No. 6620/CAT/2003 filed by the present applicant has been dismissed wrongly presuming that Civil Writ Petition No. 18833 8 (OA No. 060/212/2017) of 2002 (Union of India Vs.Col Tilak Raj) has been filed by the Government Officer and has been decided in the favour of the Union of India.
7. The applicant challenged the order of the Hon‟ble High Court of Punjab and Haryana in Civil Writ Petition No. 6620/CAT/2003 dated 04.07.2005 filed by the present applicant, by filing Special Leave Petition (C) converted into Civil Appeal No. 5892 of 2006 before the Apex Court. Vide order dated 23.04.2013 (Annexure A-12), the Apex Court held as under:-
"9. The decision of this court in Satya Narayan Shukla versus Union of India and others {(2006) 9 SCC 69} and K.M. Mishra versus Central Bank of India and others {(2008)9 SCC 120} and the other decisions of this court taking a contrary view is declared as not to be laying down a good law.
10. In so far as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing is required to be done. Civil Appeal is disposed with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law.
11. IA No. 3 of 2011 for intervention is rejected. It will be open to the appellant to pursue his legal remedy in accordance with law."
8. In view of the above order by the Apex Court, the applicant submitted a representation dated 13.05.2013 (Annexure A-2) to the respondents No. 1 9 (OA No. 060/212/2017) and 2. The applicant further submits that this representation was rejected by respondent no. 2 wrongly and illegally. In fact, the appointing authority of the applicant is the Hon‟ble President of India but the representation of the applicant Annexure -2 has not been put up before the competent appointing authority, the Hon‟ble President of India. The rejection of the representation of the applicant by an authority lower than his appointing authority is not permissible under Article 311 of the Constitution. Aggrieved by the rejection of his representation, the applicant filed OA No. 060/363/2014. This OA was allowed on 20.01.2016 by this Tribunal directing that the adverse ACRs which were not conveyed to the applicant should be conveyed to the applicant within the period of one month and further within the period of one month the applicant, if so desire, may represent against the adverse ACRs. The Tribunal further directed that if the ACRs of the applicant are upgraded to the benchmark, Review DPC should be held to consider the case of the applicant for promotion from 2002 onward. If the applicant succeeds, he shall be entitled to all benefits. 10 (OA No. 060/212/2017)
Consequent to this order, the respondents conveyed five ACRs for the year 1998-99, 1999-2000, 2000- 2001, 2001-2002 and 2002-2003 which were adverse and were not shown to the applicant. The applicant represented against all the adverse ACRs, but ultimately only two ACRs for the year 2001-2002 and 2002-2003 were upgraded to the benchmark "Very Good" while other three ACRs for the years 1998- 1999, 1999-2000 and 2000-2001 have not been upgraded though there is no evidence on record justifying the adverse entries in the ACRs as per Government instructions in this regard.
9. Vide order dated 11.04.2016 (Annexure A-1), the respondent refused to upgrade the adverse entries in the ACRs of the applicant for the years 1998-1999, 1999-2000 and 2000-2001. Hence this OA.
10. The respondents have contested the claim of the applicant by filing a comprehensive written statement.
11. The respondents have stated that Sh. Sukhdev Singh was working as Joint Director in Advance Training Institute, Jodhpur w.e.f. 28.12.2016 and not at Ludhiana. Sh. Sukhdev Singh was working at Ludhiana from 13th February, 1995 till 9th September, 11 (OA No. 060/212/2017) 2010 and the cause of action, i.e. consideration of his representation for upgradation of his APARs was to be considered at New Delhi. Hence, it is for the Tribunal to decide whether it has the jurisdiction to admit and decide on the O.A. No.60/212/2017.
12. It is further stated by the respondents that Shri Sukhdev Singh was not on "deputation" to any ex- cadre post and was merely assigned certain specific duties to be carried out at other stations, including New Delhi (Headquarters). The benchmark for promotion from the post of Deputy Director to the post of Joint Director is "Very Good". That the DPC conducted by the Union Public Service Commission (UPSC) did not find him fit for promotion on the basis of the Annual Confidential Reports for the concerned period.
13. That Shri Sukhdev Singh sought judicial interventions and as per the orders of the Hon'ble Supreme Court of India, Shri Sukhdev Singh represented on 07/03/2016 requesting for revision of the grading of ACRs for the years 1998-99, 1999-2000, 2000-2001, 2001-2002 and 2002-2003, upto bench-mark.
12 (OA No. 060/212/2017)
14. That as per para 9.5 of Cabinet Secretariat, Department of Personnel O.M. No.51/5/72-Ests.(A) dated 20th May, 1972, authority superior to the Reviewing Officer, i.e., Next Higher Authority is the Competent Authority to examine the representation of the aggrieved employee. (Annexure-1)
15. That on consideration of the representation of Shri Sukhdev Singh, the decision of the Competent Authority was conveyed to him vide order dated 11th April, 2016. ACRs for the years 2001-02 and 2002- 03 were to be treated as "Very Good" and ordered accordingly. It was conveyed to him that there is no sufficient and sustainable ground for any other interference by the Competent Authority at that stage.
16. That the contention of Shri Sukhdev Singh that his representation should have been considered by the President, being Appointing Authority, is misplaced as the "Next Higher Authority" is competent to consider the representation against any remark(s) of the Reporting/Reviewing Officer.
17. That as regards other relief(s) sought regarding his retrospective promotion, Shri Sukhdev Singh had filed 13 (OA No. 060/212/2017) an Ο.Α. No.060/00363/2014 which has already been decided by the Hon'ble Tribunal. Further, Shri Sukhdev Singh has filed a Contempt Petition No.060/00091/2016 and MA 060/00940/2016 in O.A. No.060/00363/2014 and the Hon'ble Tribunal is seized of the matter and therefore this O.A. on this count is infructuous.
18. That however, the proposal to promote Shri Sukhdev Singh as Joint Director with retrospective effect is under consideration of the Government and in the process a Clarification was sought from the Hon'ble Supreme Court, through a Clarificatory Application, as to whether the order dated 23/04/2013 of the Apex Court passed in the case of Shri Sukhdev Singh v/s UOI &Ors was a blanket order applicable to all concerned, or whether, keeping in view the peculiar facts and circumstances of the case, it was applicable only to the Petitioner's case. The Registrar, Supreme Court has informed that the Application is rejected for registration. Further, to consider the promotion other stakeholders, viz., UPSC/DoP&T are required to be consulted. Consultation with UPSC is mandatory and 14 (OA No. 060/212/2017) binding as per Article 320(3) (b) of the Constitution of India read with UPSC (Regulations), 1958.
19. That Shri Sukhdev Singh has been promoted as Director of Training vide Office Order No.09 of 2017 dated 19.07.2017. (Annexure-2)
20. That the Government is in no way victimizing Shri Sukhdev Singh as has been presented by the Applicant.
21. That vide the order dated 11.04.2016, the decision of Competent Authority to upgrade the grading in the ACRs for the years 2001-02 and 2002-03 to "Very Good", after considering Applicant's representation dated 07.03.2016, wherein he requested for the grading of ACR for the years 1998-1999, 1999-2000, 2000-2001 2001-2002 and 2002-2003 upto bench mark, was conveyed to the Applicant. The Hon'ble Supreme Court in Civil Appeal No.5892 2006 did not direct that the Applicant be promoted with retrospective effect from the date his immediate junior promoted. The Hon'ble Supreme Court in its judgment dated April, 2013, specifically mentioned in para 11: "In so far as present case is concerned, we are informed that the Applicant has been promoted. In 15 (OA No. 060/212/2017) view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs". Hence, the Applicant is misrepresenting and misleading the Tribunal. (Annexure-3)
22. That Sh. Sukhdev Singh was posted at Ludhiana from 13.02.1995 till 09.09.2000 and his representation is dated 07/03/2016 and whereas the cause of action, i.e., consideration of his representation for upgradation of his ACRs was to be considered at New Delhi. Hence, it is for the Hon'ble Tribunal to decide whether it has the jurisdiction to admit and decide on the O.A.No.60/212/2017.
23. That the representation dated 07.03.2016 of the Applicant requesting for upgradation of ACRs for the years 1998-1999, 1999- 2000, 2000-2001, 2001- 2002 and 2002-2003, was considered by the Competent Authority and decision to upgrade ACRs for the years 2001-2002 and 2002-2003 to "Very Good" was conveyed vide order dated 11.04.2016. That the matter regarding holding review DPC was referred to UPSC on 03.05.2016 which advised for seeking the advice of DOPT, the Nodal Ministry in the matter.
16 (OA No. 060/212/2017)
24. The applicant filed a rejoinder to the written statement filed by the respondents reiterating his stand as taken in the OA.
25. We have heard the learned counsels for the parties and have carefully gone through the pleadings on record.
26. From the pleadings, itself, the contention of the applicant is that on the recommendation of the UPSC, the applicant was appointed as Deputy Director of Training on 13.11.1992 and was posted at Advanced Training Institute Mumbai and thereafter was transferred to Ludhiana in the office of Respondent No. 4. The next channel of promotion of the applicant was to the post of Joint Director Training and this post was to be filled on the basis of the Seniority cum merit basis and the Benchmark for promotion to the post of Joint Director Training was Very Good.
27. The applicant was the seniormost amongst the Deputy Director of Training. The Reviewing Authority for writing of ACRs had suo moto reviewed and downgraded the entries in all the confidential reports of the applicant for assessing his ACRs for the period 2000-01 and 2001-02 as Good/Average. The entries 17 (OA No. 060/212/2017) were never communicated to the applicant. The applicant was senior-most and eligible for the promotion to the post of Joint Director of Training, but his name was considered by the Respondent No. 3 alongwith other employee who were junior to the applicant and the applicant was denied the promotion to the post of Joint Director of Training in view of the downgrading of the ACRs for the period 1998, 1999, 1999-2000, 2000-2001 and 2001-2002.
28. The applicant submitted representation to Respondents No. 1 & 2 and ultimately filed OA No. 287/PB/2003 before the Tribunal seeking direction to hold the Review DPC. The same was dismissed vide Annexure A-10. The applicant has assailed the order before the Hon‟ble Punjab and Haryana High Court, but the same was also dismissed. Ultimately, the applicant filed SLP before the Apex Court which was converted into Civil Appeal No. 5892 of 2006. The Apex Court vide judgement dated23.04.2013 (Annexure A-12) has passed the order and gave liberty to the applicant to make a representation before the concerned authority for retrospective promotion. Ultimately, the applicant made a 18 (OA No. 060/212/2017) representation. The applicant was promoted as Joint Director of Training w.e.f. 2010. In view of the order passed by the Apex Court, the applicant made a representation dated 07.03.2016 against the Below Bench Mark ACRs and requested the respondents to revise his Grading ACRs upto Bench Mark.
29. The respondents vide Annexurke A-2 dated 11.04.2016, have upgraded the ACRs for the period 2001-02 and 2002-03 as "Very Good" and further intimated that there was no sufficient ground for any other interference by the Competent Authority for the remaining ACRs.
30. The contention of the applicant is that after upgrading the ACRs for the year 2001-02 and 2002-03 as "Very Good", the applicant was promoted as Joint Director of Training w.e.f. 28.06.2007 vide order dated 18.01.2018 (Annexure R-2).
31. The main ground put forth by the applicant in this OA is that order dated 11.04.2016 (Annexure A-1) is a non-speaking order as no reason has been assigned by the respondents while rejecting the representation of the applicant for upgradation of his below bench ACRs w.e.f. 1998-2001. It has been contended by 19 (OA No. 060/212/2017) the applicant that in view of the order passed by the Apex Court in the matter of UOI Vs. G.R. Meghwal, 2022 AIR (s)4661, it was held that if no valid reason is given for rejecting the representation, then the said ACRs are to be excluded for consideration of the Bench Mark criteria.
32. The contention of the applicant is that the ACRs for the years 1998-2001 have not been upgraded without any reason. The remarks of the reporting and reviewing authorities for the ACRs of 1998-2001 and for the year 2001-02 and 2002-03 are same and despite that the ACRs of the applicant for the year 1998-2001 have not been upgraded/revised to Benchmark with the remarks that there is no sufficient reason for upgrading the Below Bench Mark ACRs. The contention of the applicant that no specific reason has been given by the authority that it should be excluded for consideration to the promotion to the post of Joint Director of Training. In absence of any reasons for rejecting the ACRs from 1998-2001, those ACRs should not have been read for promotion to the post of Joint Director of Training for the years 2003- 04, 2004-05 and 2005-06 though the respondents 20 (OA No. 060/212/2017) have specifically submitted that the competent authority has not found any reason for interference for upgrading the applicant‟s ACRs for the year 1998- 2001.‟
33. It has been further contended by the learned counsel for the applicant that the ACRs of the applicant for the year 1998-2001 were never communicated by the respondents in time and it is only after the order dated 20.01.2016, after a lapse of 15 years, the same was communicated to the applicant. Had the ACRs for the year 1998-99 been communicated to the applicant in time, the applicant would have submitted his representation in time. Thus, the action of the respondents is against the principles of natural justice.
34. From the impugned order Annexure A-1, the only reason for not enhancing the Bench Mark of ACR is that "there is no sufficient and sustainable ground for any other interference by the competent authority at this stage" whereby only ACRS for the period 2001-02 and 2002-03 have been enhanced to Bench Mark. No other detailed reasons have been given by the Competent Authority.
21 (OA No. 060/212/2017)
35. The applicant has relied upon the judgement passed by the Apex Court in the matter of G.R. Meghwal (supra) and has also relied upon CWP No. 26204 titled as Union of India Vs. Central Administrative Tribunal decided on 02.08.2024.
36. In the instant case, though the respondents have given some explanation for rejection qua the upgradation of the ACR for the years 1998-2001, but the detailed reasons have not been given by the competent authority though the ACRs for the year 2001-02 and 2002-03 have been upgraded to the Bench Mark. From Annexures MA-1 (1998-99), MA-2 (1999-2000) and MA-3(2000-2001), the ACRs have been considered, but the respondents have not indicated qua the ACRs earlier to 1998. The contention of the applicant is that for the years 1998- 2001, the ACRs of the applicant have been downgraded without any reason and without giving any opportunity to the applicant to improve the same. Neither the applicant has placed on record his earlier ACR prior to 1998 nor the respondents have indicated 22 (OA No. 060/212/2017) the earlier ACRs from where the down gradation of the applicant has been indicated by the respondents.
37. In view of such position, the detailed consideration is required by the competent authority. In view of this, this Original Application is partly allowed. Annexure A-1 is hereby quashed and set aside partly qua the rejection of upgradation of the ACR of the applicant qua the period 1998-1999, 1999-2000 and 2000- 2001. Respondents are directed to pass speaking order for these ACRs and if the applicant is found eligible, the Special/Review DPC be convened to consider the case of the applicant for promotion to the next higher grade of Joint Director w.e.f. the date on which his immediate junior was promoted. The relevant exercise be carried out within three months from the date of receipt of this order.
38. There shall be no order so as to costs.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
ND*