Central Administrative Tribunal - Delhi
Sh. Dinesh Prasad Sharma vs C.M.D. Bsnl on 26 April, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3076/2012
Reserved on : 03.04.2013.
Pronounced on :26.04.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Dinesh Prasad Sharma,
Retired Sr. SDE, BSNL,
Ghaziabad(UP)
5/664, Kashyap Colony,
Gular Road, Aligarh(UP). . Applicant
(Applicant in person)
Versus
1. C.M.D. BSNL, Bharat Sanchar Bhawan,
Janpath, New Delhi.
2. C.G.M.T. BSNL, UP(W) circle,
Shastri Nagar Exchange,
Meerut (UP).
3. G.M.T.(O) BSNL, Rajnagar Exchange,
Ghaziabad(UP).
4. DGM(CFA)/A.M. Ghaziabad,
BSNL, Rajnagar Exchange,
Ghaziabad (UP).
5. AM(HR-I) O/O CGMT UP(W),
BSNL, MDA Bldg.
Meerut(UP). . Respondents
(through Sh. M.M. Sudan, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(i) to set aside the impugned final order (Ann.No.A-1) of the Rspdt. No.5 to upgrade the ACRs in Q.; to enforce its declarations in order 15.3.2012 (Ann.A12) and, consequently, allow the said STS Grade promotion on ad hoc basis with retrospective effect with arrears of pay, allowances & consequential benefits of the promotion post from 19.12.2007 or from the date from which the juniors to the applicant in the TES Gr.B cadre were given the said promotion as per the promotion lists dated 19.12.2007 & 28.02.2008 (ann. Nos. A-2 & A-3) and keeping in view that the applicant continuously worked on the STS Grade or Post from 06.06.2003 to 05.08.2009 on officiating & look-after basis in BSNL Ghaziabad, and to enforce the applicants fundamental rights guaranteed by Articles 14 & 16 of Constitution of India.
(ii) to award suitable compensation for severe & undue harassment and mental agony sustained by the applicant since 19.12.2007 without rhyme or reason and without any guilt or mistake on his part.
(iii) to award cost as may be deemed fit, proper & justified.
(iv) to issue any other order or direction or writ as this tribunal may deem fit & proper and to secure the ends of justice.
2. This is a case of multiple round of litigation. Facts are that applicant was working with the respondents as SDE. On 19.12.2007 the respondents issued a list giving promotion on ad hoc basis to 621 TES Group-B Executives. The applicant was denied the same though some of his juniors were included in the list. The applicant moved a representation to respondents against denial of promotion. However, his name did not figure even in the supplementary promotion list issued on 28.02.2008. On 10.03.2008, the applicant again moved a representation seeking promotion from 19.12.2007. However, when the respondents did not decide his representation, he moved this Tribunal by filing OA-2486/2009. The Tribunal disposed of the aforesaid O.A. on 04.09.2009 by directing the respondents to decide the representation of the applicant by passing a speaking order. On 11.12.2009, respondent No.1 rejected the representation of the applicant. On 30.04.2010, the applicant filed OA-1473/2010 against the order of the respondents rejecting his representation. The Tribunal decided the said O.A. on 15.03.2011 and set aside the order of the respondents dated 11.12.2009. The matter was remitted back to the respondents with a direction to communicate within one month the entries of the ACRs on the basis of which the applicant was assessed as unfit for the said promotion. When the respondents did not communicate the ACRs entries as directed by the Tribunal the applicant filed CP-501/2011in which on 23.05.2011 notice was issued to respondent No.2. Consequently on 23.06.2011, the ACRs for the periods 12.05.2004 to 31.03.2005 & 01.04.2005 to 31.03.2006 which affected the promotion of the applicant were communicated to him. On 02.07.2011 the applicant filed a detailed representation against the communicated ACRs. On 04.08.2011 the respondents rejected the representation of the applicant. On 18.08.2011, the applicant filed OA-3038/2011 challenging the order of the respondents dated 04.08.2011 by which representation of the applicant had been rejected. This O.A. was decided by the Tribunal on 15.03.2012 and the matter was remitted back to the respondents for reconsideration of the representation dated 02.07.2011 and decide the same by means of a reasoned and speaking order. The respondents were also directed to treat the averments made in the OA as a supplementary representation. In compliance of the Tribunals order, the respondents passed the impugned order dated 14.05.2012 by which the representation of the applicant was rejected. On 18.07.2012 the applicant filed CP-512/2012 in OA-3038/2011, which was rejected by the Tribunal on 21.08.2012 without going into the merits and treating it as withdrawn by the applicant and giving him liberty to file O.A. to challenge the order of the respondents. In pursuance of the same, the present O.A. has been filed.
3. The only issue for our consideration is whether the representation dated 02.07.2011 of the applicant has been duly considered by the respondents in compliance of the directions dated 15.03.2012 of this Tribunal given in OA-3038/2011. A copy of that judgment is annexed as Annexure A-12 to this OA. On perusal of the same, we find that the Tribunal has gone into great details into the issues raised by the applicant in his representation and the manner in which the respondents had decided his representation. Tribunal had come to the conclusion that the order passed by the respondents was not a reasoned and speaking order. They had in great details elaborated the points that had not been considered by the respondents at all. On the basis of all these facts, the Tribunal had directed the respondents to reconsider the representation of the applicant by means of a reasoned and speaking order. Further, it was directed that in the event of favourable outcome the applicant would also be entitled to be considered again for ad hoc promotion w.e.f. 19.12.2007 through a review DPC. In pursuance of the Tribunals direction the impugned order has been passed.
4. We have perused the same and find that the respondents have still not given thoughtful consideration to the representation of the applicant. Thus, the applicant had mentioned in his representation that the reporting officer for both the years was the same and maligned against the applicant. We find that nothing has been mentioned by the respondents in this regard while rejecting the representation. The applicant had also alleged that the reviewing officer who had seen his work only for one month during the period from 12.05.2004 to 31.03.2005 had recorded remarks for the full year. With regard to this, the respondents in their impugned order have observed as follows:-
In ACR for the period 12.05.2004-31.03.2005, the reviewing authority was having period of about one month but towards end of financial year. In review being done by office having last period of financial year does not appear unusual. So allegation made by the officer is not valid.
5. Thus, the respondents observed that since the reviewing officer was the one who supervising the work of the applicant during the last month for the financial year, it was not unusual for him to record the remarks. In our opinion, this is totally unacceptable and illegal. Only the authority who has supervised the work for more than three months in one assessment year is competent to record the remarks and that also for the period for which he has actually supervised the work. Thus, the respondents have clearly erred by saying that even an officer who had supervised the work for only one month was competent to write remarks about the applicant since he was there at the time of closure of financial year.
6. The applicant had also stated the following in his representation:-
The integrity of said Sh. Dev Kumar has been always doubtful or in question and he, at present, has been confined in Dasna Jail, Ghaziabad for prosecution by the CBI Court under PC Act. Such Officer can not be relied upon to review my ACR in proper, equitable & unbiased manner. This was taken note of by the Tribunal also in their judgment dated 15.03.2012. However, we find that this also has been ignored totally by the respondents while deciding the representation of the applicant vide the impugned order.
7. On the basis of above, we come to the conclusion that the respondents have failed to comply with the directions of this Tribunal as given in the order dated 15.03.2012 in OA-3038/2011. Non-consideration of the issues raised by the applicant in his representation amounts to denial of justice to him. In our considered opinion, the respondents have been acting in a cavalier fashion making the applicant run from pillar to post for justice and showing scant regard for the orders of the Court.
8. Keeping in view the above facts and circumstances of the case, the impugned order is quashed. We once again direct the respondents to carefully study the order of this Tribunal dated 15.03.2012 passed in OA-3038/2011 and decide the representation dated 02.07.2011 of the applicant by means of a reasoned and speaking order in the light of the directions given. They will consider all the issues raised by the applicant and give reasons for accepting or rejecting the same. They are directed to do so within six weeks from the date of receipt of a certified copy of this order. As compensation for the harassment caused to the applicant, we direct that the respondents will also pay Rs.5000/- to the applicant as cost within the aforesaid period. The O.A. is accordingly disposed of.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/