Central Administrative Tribunal - Delhi
Pradeep Kasni S/O Dharma Singh vs Union Of India Through on 20 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3484/2010 This the 20th day of December, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Pradeep Kasni S/O Dharma Singh, R/o 15 Birbal road, FF, Jangpura Extension, New Delhi-110014. Applicant ( By Shri M. K. Bhardwaj, Advocate ) Versus 1. Union of India through Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India, New Delhi. 2. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi. 3. Chief Secretary, Government of Haryana, Chandigarh. ( By Shri R. N. Singh for Respondent No.1 and Shri Yashpal Rangi for Respondent No.3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
On 12.11.2010, we recorded the following order:
The Applicant is seeking directions to the Respondents for holding the meeting of review Departmental Promotion Committee (DPC) to consider him for placement in the Select List of the year 1999, 2000 and/or 2001.
2. The Applicant joined the Haryana Civil Service (HCS) in the year 1984. As per the applicable rules he became eligible for promotion to the Indian Administrative Service (IAS) after completion of eight years service in the HCS. The name of the Applicant was, however, not considered by the selection committee in the years 1998, 1999, 2000 and 2001. The persons junior to the Applicant were promoted to the IAS in the years 1999 and 2000. After making several efforts to know the reasons for his exclusion from the Select List, the Applicant could gather that he did not meet the required benchmark in his Annual Confidential Reports (ACRs). However, he was not given the copies of his ACRs, till he made an application under the Right to Information Act, 2005, after coming into existence of this Act. The Applicant discovered that the reviewing authority had downgraded his ACR from "Very Good" to "Good" and also recorded an adverse remark in the ACR of the year 1996-97. The adverse comments were never communicated to the Applicant and the grading "Good" was also not communicated to him. It was argued that since the adverse remarks were never communicated to him, these could not be considered by the DPC in the light of the instructions contained in letter number 5990-3S-73/10832 dated 7.05.1974 addressed by the Chief Secretary of the Government of Haryana to the concerned officers of the Government. The instructions inter alia, mention the following:
I am directed to say that Para 10 of the consolidated instructions regarding confidential reports provides that an employee should not, at any time, be kept ignorant about the reporting officers opinion and adverse remarks wherever recorded in the annual confidential reports should be conveyed promptly. The consolidated instructions also provide that all authorities entrusted with the responsibility of maintaining annual confidential reports should ensure that adverse remarks are so conveyed and further more no notice should be taken of adverse remarks if they have not been conveyed. The same, however, was considered by the selection committee to the detriment of the Applicant. Since the downgraded grading had not been communicated to the Applicant, he could not make any representation against that. The reporting authority had given "Very Good" grading to the Applicant. Again in the year 1997-98 the Applicant worked under the same reporting authority, who recorded many laudatory remarks in his ACR, yet rated him only as "Good". An adverse remark was recorded in the ACR for the year 1998-99, which were declared to be non est by the State Government and a statement to that effect was made before the Honourable High Court of Punjab and Haryana by the Government. Once again in the year 1999-2000 adverse remarks were recorded in the ACR of the Applicant, which were subsequently expunged by the State Government and the grading was upgraded from "Good" to "Very Good". The Applicant's case is that the selection committee for the years from 1999 to 2001 was wrong in relying on the ACRs containing below benchmark remarks, which had not been conveyed to the Applicant. Further, it was argued that the declaring of the ACR for the year 1998-99 as non est would itself be a ground for convening a review DPC. The Applicant was eventually placed in the Select List of 2007 by the DPC which met in 2008 and was allocated to the batch of the year 2000, although the persons junior to him had been allocated to the batch of 1993.
3. The Applicant approached this Tribunal in the OA number 3487 of 2009, which was decided on 03.12.2009 with the following directions to the respondents therein:
2. In totality of the facts and circumstances of the case we accept the prayer of the applicant and order that this Original Application be treated as representation and the same shall be sent by the applicant to the concerned orders thereon in accordance with law within a period of two months from the date of receipt of such representation.
3. In view of the above directions, present Original Application stands disposed of. Pursuant to the above directions, the third Respondent-Government of Haryana informed the Applicant, by its letter dated 06.09.2010 as follows:
Subject: Representation of Shri Pradeep Kasni, IAS ( Y: 2000) to convene meeting of Selection Committee to review the Selection Lists of 1999, 2000 and 2001 for promotion of SCS Officers to the IAS of Haryana Cadre.
Sir, I am directed to invite reference to your representation dated 13.04.2010 on the subject mentioned above and to say that your representation was sent to the Secretary, UPSC for decision. Now, the UPSC vide its letter No. 9/5/2009-AIS, dated 09.08.2010 has informed that as per the AIS (Appointment by Promotion) Regulations, 1955, there is no provision to suo moto review of the select List only on the specific direction of the competent court of law. In the instant case there is no specific direction from the Honble Tribunal to review any Select List prepared and already acted upon. A copy letter No.9/5/2009-AIS, dated 09.08.2010.
Yours faithfully, Sd/-
Superintendent Services-I, For Chief Secretary to Government Haryana.
4. In the light of the above the following reliefs have been sought:
i) To direct to respondent No.2 to hold Review Selection Committee Meeting for the year 1999, 2000 and/or 2001 forthwith and include the name of the applicant in the appropriate select list;
ii) To issue mandamus to the respondents to promote the Applicant from HCS to IAS Cadre from the date his juniors have been promoted with consequential benefits including seniority and arrears of pay;
iii) To issue certiorari for setting aside/quashing the order passed by the respondent No.2 on 9.8.2010 and communicated to the applicant by the respondent No. 3 on 6.9.2010 (Annexure A-8). The relevant portion of the communication dated 09.08.2010 from the second Respondent-Union Public Service Commission (UPSC) reads thus:
3. In this regard it is stated that, as per the AIS (Appointment by Promotion) Regulations, 1955 there is no provision for suo moto review of the select list already prepared and acted upon. The Commission reviews any such select list only on the specific direction of the competent court of law. In the instant case there is no specific direction from the Honble Tribunal to review any select list prepared and already acted upon.
5. We had heard the arguments on 01.11.2010 and the case was closed for judgement. Only the learned counsel for the third Respondent, that is, the Government of Haryana was present. We find that replies have not been filed by any of the three Respondents in the OA. The learned counsel for the third Respondent orally informed that the Government of Haryana had taken up the matter with the second Respondent-Union Public Service Commission (UPSC) following the directions of this Tribunal in OA number 3487 of 2009, adverted to above, and the UPSC informed that suo motu review of the Select List could not be undertaken by the UPSC and specific directions of the Tribunal/court were needed for the purpose. The same was communicated to the Applicant.
6. Since it is a matter concerning selection of a State Civil Service officer to the IAS, the Department of Personnel and Training (DOP&T) would be an essential party. Although notice had been issued to the DOP&T, yet no one appeared on its behalf and no counter affidavit had been filed. We feel that the reply of the said Department would be necessary in order to decide the issue raised in this OA. Opportunity should be given to the Respondents to file replies. The matter, therefore, needs to be re-heard.
7. Notice may be given to the Applicant and the Respondents for re-hearing on 14.12.2010 along with a copy of this order.
2. Pursuant to notice issued to DOP&T, the said respondent has entered appearance and filed its reply. The same is only informative as to how the process of appointment of State Civil Service (SCS) officers to the IAS under IAS (Appointment by Promotion) Regulations, 1955 is initiated and finalized, as also the rules applicable for the same. The facts as mentioned in the Original Application and as referred to above have not been disputed. It is, however, pleaded that in the said Regulations there is no provision for review of State Select List of SCS officers, once the same has been approved by UPSC and appointments of officers included therein have been notified by the DOP&T, and, therefore, the prayer of the applicant would not be maintainable.
3. A Division Bench of the Punjab and Haryana High Court, which was incidentally presided over by one of us (V. K. Bali, Chairman) in WP(C) No.7164 of 1997 decided on 24.9.1998 in the matter of Dharam Pal Panwar v State of Haryana, held that if an employee is ignored for promotion for there being adverse remarks in his confidential report which was either not communicated to him or communicated at a stage when he could not put in a meaningful representation, and for that reason the adverse remarks were quashed or expunged, it shall be deemed that no such remarks were there in existence at the time when the employee was ignored for promotion, and that the employer would be enjoined to consider the case of the employee from a date when he was wrongly ignored. In OA No.1883/2008 decided on 17.9.2008 in the matter of Risal Singh Khara v Union of India & others, where the facts were absolutely similar, and the plea raised by DOP&T in opposing the cause of the applicant therein was also the same, we ordered that UPSC would convene a review DPC for consideration of inclusion of the name of the applicant in the IAS select list for the years 1999, 2000 and 2001. We may only state that in the case aforesaid it was commonly stated by the learned counsel for parties that only if the Tribunal was to pass an order, a review DPC for inclusion of the name of the applicant in the select list for the years 1999, 2000 and 2001 would be held, whereas in the present case the learned counsel representing the DOP&T would not so state, even though he has no valid plea to state as to why the review DPC should not be held.
4. Following the decision of the Punjab and Haryana High Court in Dharam Pal Panwar (supra) and for parity of reasons given in Risal Singh Khara (supra), we direct the respondents to convene a review DPC for the year 1999, 2000 and 2001 to consider the case of the applicant for inclusion in the IAS select list, and if he is found fit for promotion, to do so from the date his juniors have been promoted. Let the review DPC be constituted as expeditiously as possible and definitely within two months from today. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/