Central Administrative Tribunal - Delhi
Dr. Rekha Sangal vs Union Of India on 31 October, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.861/2012 Order Reserved on: 01.08.2013 Order pronounced on 31.10.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri Shekhar Agarwal, Member (A) Dr. Rekha Sangal R/o D-II/A-2496, Netaji Nagar New Delhi 110 023. Applicant (By Advocate: Shri H.K.Gangwani) Versus Union of India Through the Secretary Ministry of Health and Family Welfare (Department of Health and Family Welfare) Nirman Bhawan New Delhi 110 001. Respondent (By Advocate: Shri V.S.R.Krishna) O R D E R By V. Ajay Kumar, Member (J):
The applicant is presently working as Chief Medical Officer (Non-Functional Selection Grade) and belongs to the Central Health Service. Her next promotion is to the Senior Administrative Grade (in short `SAG) under the Dynamic Assured Career Progression Scheme (DACPS).
2. Prior to the reporting period 2008-2009, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any, to be considered by the competent authority. Later, vide Office Memorandum dated 13.04.2010 (Annexure R1), it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-2009 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the `benchmark for her/his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any.
3. Accordingly, the ACRs of the applicant for the years 2001-02, 2003-04, 2005-06 and 2006-07, which contain below benchmark gradings of `Good, were furnished to her for making representation, if any, for upgradation of the same. The respondent has also communicated the below benchmark gradings to various other similarly placed persons for making representation, if any. The applicant submitted a representation dated 09.08.2010 explaining that `Good gradings awarded to her during the said relevant years were unjustified and she deserved a better grading. The respondent, without giving any individual replies to the applicant and to other similarly situated Doctors in whose cases the grading was below benchmark but vide its Office Memorandum dated 07.07.2011 (Annexure A2) put up a list of 374 officers on its website indicating revised gradings awarded to them by a Committee, consisting of six officers. In the said OM, the name of the applicant was shown at Sl. No.235 and the overall grading of the applicant for the years 2001-02, 2003-04 and 2005-06 was upgraded to `Very Good but overall grading for the year 2006-07 was retained as `Good. Under the Column `comments received, in respect of the years 2001-02, 2003-04 and 2005-06 it was mentioned as `NA whereas in respect of 2006-07 it was mentioned as `comments not received.
4. Since the above communication does not contain any reasons, the applicant made another representation dated 20.07.2011 pointing out that both the Reporting and Reviewing Officers had already retired from service and therefore, comments could not be expected to be received from retired officers. However, the respondents vide their impugned Annexure A1 dated 08.11.2011 rejected the representation of the applicant by retaining the grading of `Good by stating that no new facts have come, as such, there is no ground for reconsideration.
5. The applicant is seeking to quash the impugned orders dated 08.11.2011 retaining the below benchmark grading of `Good for the year 2006-07 and for a consequential direction to hold a review DPC to consider her case by ignoring the said grading.
6. Shri H.K.Gangwani, the learned counsel for the applicant, in support of the OA averments, raised the following grounds:
The impugned Office Memorandum dated 07.07.2011 and 08.11.2011 are liable to be quashed being non-speaking orders. It is submitted that the respondents have not given any reasons why they are not accepting the contentions made by the applicant in her representations made for upgradation of the below benchmark grading in the ACR of the year 2006-07.
The impugned orders suffers from non-application of mind because respondent failed to take note of the fact that Reporting and Reviewing officers had already retired by the time below benchmark gradings were communicated, and hence, refusing to upgrade the below benchmark grading of the applicant on the ground that `comments not received is unsustainable.
The learned counsel placed reliance on the Judgement of this Tribunal in OA No.1644/2009 dated 16.02.2010, in support of his case.
7. The respondents filed a detailed counter stating that in view of the DoPT OM dated 13.04.2010, the below benchmark gradings for the relevant years have been communicated to various persons, including the applicant, and after considering the representations made by them, appropriate orders passed either by retaining or upgrading the gradings as the case may be. In view of receipt of large number of representations received from all sub cadres of CHS (Teaching, Non-teaching, Public Health and GDMO), it was decided with the approval of the Secretary (H&FW) to constitute a Committee consisting of senior officers to assess and evaluate each ACR, according to its representation. The Committee drew up a set of guidelines in order to ensure uniformity and objectivity in its approach for reviewing the ACRs (Annexuer R2). On the basis of the guidelines, the Committee scrutinized each of the ACR and considered the representations of applicants and comments of reporting/review officers received in this regard by extrapolating with the entries made in the various columns in the ACRs. In cases where reporting/reviewing officer comments have not been received, the matter was considered on merit by taking into account the representation submitted and the performance as reflected in the particular year of ACR. This procedure has been applied uniformly in respect of all the years and in respect of all the persons, without any deviation.
8. The below benchmark gradings of the applicant in respect of the relevant years, i.e., 2001-02, 2003-04, 2005-06 and 2006-07 were communicated to her and after considering the representation made by her, the Committee/competent authority on the basis of the guidelines formulated by the Committee to ensure uniformity and objectivity in its approach for reviewing ACRs has upgraded the ACRs as `Very Good pertaining to the years 2001-02, 2003-04 and 2005-06 of the applicant. However, the competent authority having not found any ground to upgrade the grading for the year 2006-07, retained the below benchmark grading of `Good.
9. Shri V.S.R.Krishna, the learned counsel appearing for the respondents submits that in view of the large-scale representations, the six member Committee constituted specifically for this purpose, in accordance with the procedure formulated considered the representation of the applicant for all the aforesaid four years, and upgraded her below benchmark grading of `Good to `Very Good in respect of the years 2001-02, 2003-04 and 2005-06 and retained the below benchmark grading of `Good for the year 2006-07. The applicant, having accepted the procedure adopted by the respondents in respect of certain years, cannot raise any objection in respect of the year 2006-07. It is further submitted that the contentions of the applicant made in her representation against the particular remarks/grading in the ACR and the views of the Reporting/Reviewing Officer, if they are still in service were taken into consideration by the Committee/competent authority. In respect of the year 2006-07, since the Reporting and Reviewing Officers of the applicant were retired, the representation of the applicant was decided on the basis of the other material available on record and on merit. The contention of the applicant that grading was not upgraded on the sole ground that the `comments not received is not correct. The Committee independently considered the representation of the applicant and others uniformly in all the cases wherever the reporting and reviewing officers were retired. In certain cases where comments were not received, due to the retirement either Reporting or Reviewing or both officers also the gradings were upgraded depending on the performance of the concerned officer as reflected in the particular ACRs and the representation made therein.
10. The learned counsel for the respondents further submits that the applicant has not raised any objection for the constitution of the Committee and for framing its own guidelines and in considering the representations in accordance with the same. In fact, her grading in respect of the years 2001-02, 2003-04 and 2005-06 were upgraded in accordance with the very same procedure. Hence, she is estopped from raising any objection in retaining the below benchmark grading for the year 2006-07, which is also in accordance with the same procedure.
11. The OA No.1644/2009, dated 16.02.2010, in Dr.V.P.S. Punia v. Union of India, on which the learned counsel for the applicant placed reliance, is a case where the below benchmark ACRs were not communicated to the applicant and this Tribunal while observing that normally this Tribunal following the decision of Honble Supreme Court in CA No.7631/2002, decided on 23.05.2008, in the matter of Dev Dutt v. Union of India and Full Bench of this Tribunal in OA No.24/2007, decided on 07.05.2008 in the matter of Ashok Kumar Aneja v. Union of India & Others, would have directed the respondents to convey to the applicant his ACRs, which may be below benchmark, have representation from him, and if in consideration thereof, the ACR of the applicant is upgraded, commensurate to the benchmark, consider his case for promotion to the Senior Administrative Grade (SAG)/Specialist (non-teaching cadre), from the date when others were so promoted. However, admittedly, in the present case, the reporting and review officers of the ACRs for the year 2003-04 and 2004-05 have since already retired. That being so, following the Judgement of the Honble Supreme Court in Abhijit Ghosh Dastidar v. Union of India and others (SLP No.26556/2004, decided on 22.10.2008) and the decision of this Tribunal in the matter of O.P.Meena v. Union of India and Others (OA No.1178/2009, decided on 14.10.2009), disposed of the OA directing the respondents to ignore the below benchmark gradings and to take into consideration the gradings which are commensurate with the benchmark by constituting a review DPC to reconsider the case of the applicant.
12. The learned counsel for the applicant submits that admittedly as declared by the Honble Apex Court in Dev Dutt v. Union of India (2008) 8 SCC 725) and Abhijit Ghosh Dastidar vs. Union of India & Others, (2009) 16 SCC 146), the respondents are under legal obligation to communicate even the ACRs containing the below benchmark gradings within the reasonable period. The respondents having failed to communicate the same, year after year, finally communicated all the below benchmark gradings of various years in one go and to deal with the large scale representations constituted a Committee which disposed of the same, in accordance with a particular procedure. Whenever any review of ACR grading is to be done, it can be done only with reference to the comments of the Reporting and Reviewing officers which forms basis for the gradings awarded in the particular ACR. The respondents under the guise of uniform procedure cannot give away the procedure established in accordance with settled law and principles of natural justice. Non-questioning of the procedure followed by the respondents, in respect of certain years, cannot take away the rights of the applicant, and the application of principles of natural justice.
13. As rightly submitted by the learned counsel for the applicant, non-questioning of the procedure followed by the respondents in deciding the representations seeking upgradation of the below benchmark gradings will not wipe out the right of the applicant in questioning the final decision, even if the same is violative of principles of natural justice. The gradings given to an officer in his/her ACRs have a bearing on his/her service career. These gradings determine the entitlement of the officer for further promotions. Therefore, having serious civil consequences, by way of status, pay, etc. Therefore, the authorities are required to give specific reasons for not accepting the contentions raised by the employee for upgradation of her below benchmark grading. In this context, it is relevant to read para 2 of the OM dated 13.04.2010, in pursuance of which the below benchmark gradings of the applicant were communicated to her. Para 2 of the said OM is extracted below:
2. As per existing instructions, representations against the remarks or for up gradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-a-vis the remarks/grading given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APA Regarding at par with the bench mark for next promotion. The above para clearly indicates that though the authorities are not required to give reasons, if the below benchmark grading of an officer is upgraded, whereas in the event of the authorities not accepting the representation of the officer for upgradation of the concerned ACR, the competent authority decides the matter objectively in a quasi judicial manner on the basis of the material placed below it, including the contentions of the officer made in her representation and the views of the Reporting and Reviewing Officers if they are still in service.
14. The impugned order, admittedly, does not contain any reasons and does not indicate that the competent authority has applied its mind to the contentions raised by the applicant in her representations made for upgradation of the below benchmark grading for the year 2006-07. The respondents failed to state any valid reasons for not upgrading the below benchmark grading of the applicant, even in the counter filed, except saying that the Committee decided to retain the grading of `Good of the applicant for the year 2006-07, on the basis of the material available. Therefore, the impugned order being a non-speaking one, and without any reasons, is clearly violative of principles of the natural justice and accordingly, the same is liable to be set aside. Further, in view of long lapse of time, i.e., the relevant ACR is pertaining to the year 2006-07 and the same were communicated after a lapse of about 4 years and the Reporting and Reviewing Officers of the same have already retired from service, and in the peculiar facts of this case, there would not be any justification if the matter is remitted back to the authorities for passing fresh orders, as was the normal procedure to be followed.
15. In the peculiar circumstances of this case and for the aforesaid reasons, the OA is allowed. The impugned order dated 07.07.2011 qua the applicant for the year 2006-07 and 08.11.2011 are quashed. The respondents are directed to re-consider the case of the applicant for promotion by holding a review DPC by ignoring the ACR for the year 2006-07, and if she is found fit for promotion, the said promotion shall be given from the date her juniors were promoted with all consequential benefits, except back-wages, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/