Central Administrative Tribunal - Jabalpur
Hon Ble Shri Justice Dhirendra Mishra vs Union Of India on 14 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING : INDORE
ORIGINAL APPLICATION NO. 864 OF 2010
Indore, this Friday, the 14th day of February, 2014
HONBLE SHRI JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
B.Manohar, S/o S.K.R Balaji, Aged 57 years, Director (Admn.), ESIC Model Hospital, Nanda Nagar, Indore 452011, r/o C-25,
Panchdeep Nikunj, Nanda Nagar, Indore-452011. -Applicant
(By Advocate Shri P.J.Mehta)
V e r s u s
1. Union of India, through its Secretary,
Ministry of Labour, Shram Shakti Bhawan,
Rafi Marg, New Delhi 110001.
2. Employees State Insurance Corporation,
Through Director General, ESIC Corporation,
HQ Office, Panchdeep Bhawan, C.I.G. Marg, New Delhi-110002.
3. Union Public Service Commission, through its Secretary,
Dholpur House, Shahjahan Marg, New Delhi 110069.
4. A.K.Shrivastava, Director,
5. Arun Kumar, Director.
6. R.Kesavan, Director.
7. K.Rajasekar, Director.
8. A.S.Meeran, Director.
9. A.K.Sinha, Director.
10. O.P.Jatia, Director.
11. Manju Chakraborty, Director Through, Director General, ESI Corporation, HQ Office, Panchdeep Bhawan, C.I.G.Marg,
New Delhi 110002. - Respondents
(By Advocate Shri Vivek Sharan for 1 & 2 and Shri Vivek Seth for respondent No.4 )
O R D E R
By G.P.Singhal, AM:-
The applicant in this Original Application has prayed for the following reliefs:-
A. To direct the respondent No.2 to produce the confidential reports of the applicant for a period from 2001-02 to 2005-06 along with entire record of DPC proceedings held on 23-12-08.
B. To issue direction to the respondents that, the confidential reports for the periods 2001-02, 2002-03 and 2003-04, which contain uncommunicated adverse entries, should not affect assessment of the applicant, by the DPC for promotion.
C. To issue direction to the respondents that, the DPC should not be guided, as per DOPT instructions by the gradings recorded in the confidential reports for the years 2001-02, 2002-03 and 2003-04 which are adverse gradings below the benchmark grading.
D. To issue direction to the respondents that, the DPC should ignore, as per DOPT instructions, all adverse entries in the confidential reports for the years 2001-02, 2002-03 and 2003-04 since those 3 years were earlier than the three preceding years prior to the year 2008 in which the DPC was held, and the DPC should consider only those entries, in the said confidential reports, which were not adverse.
E. To issue direction to the respondents that, assessment of a confidential report by DPC based on non-adverse entries should not lead to an adverse grading which is below the benchmark grading and hence affects the promotion of the applicant.
F. To direct the respondents not to give retrospective effect to the amended recruitment rules and the same should not be applied to the vacancies which occurred prior to the date of amendment.
G. To direct the respondents to fill the vacancies as per pre-amended Recruitment Rules with officers having 5 years regular service in Joint Director Cadre.
H. To quash the assessment of officers from serial No.7 to 20 for assessment year 2007-08 (Annexure A/1).
I. To quash the recommendation for promotion of officers from serial No. 5 to 13 under amended Recruitment Rules and serial No. 1 to 2 under extended panel, in panel for the year 2007-08 (Annexure A/1).
J. To quash the promotion of officers from serial No.5 to 13 in the office order no.08 of 2009 dated 09-01-09 (Annexure A/2).
K. To direct the respondents to hold review DPC for regular promotion for the vacancy year 2007-08 to fill vacancies as per pre-amendment recruitment rules, with officers who had completed 5 years regular service on the crucial date 01-01-07.
L. To direct the respondents to carry forward the unfilled vacancies as per pre-amended Recruitment Rules and 02 vacancies as per amended Recruitment Rules for the year 2007-08 to subsequent vacancy years till vacancies as per pre-amended Recruitment Rules are filled with officers having 5 years regular service in Joint Director cadre as per pre-amended Recruitment Rules. Vacancies as per amended Recruitment Rules may be filled only after filling vacancies as per pre-amended Recruitment Rules.
M. Any other order or direction deemed just and proper in the circumstances of the case may also be issued to give relief to the applicant and costs of this OA be awarded.
2. The brief facts of the case are that in the Departmental Promotion Committee (in short DPC) meeting held on 23.12.2008, for promotion to the grade of Regional Director, Grade-A/Director (Group-A) scale of pay Rs.12000-16000, the applicant was considered, but found unfit for promotion. The applicant has not been recommended for promotion on account of his Annual Confidential Reports (in short ACRs) for the period pertaining to 2001-02, 2002-03 and 2003-04 having below benchmark gradings, even though , the applicant was never communicated these ACRs.
3. The applicant submitted that as per the law laid by Honble Supreme Court in the matters of Dev Dutt Vs. Union of India & Ors. (Civil Appeal No.7631 of 2002), the grading below the benchmark, is to be treated as adverse because it eliminates the candidate from consideration for promotion. Thus, the below benchmark gradings of the applicant for the year 2001-02, 2002-03 and 2003-04, were required to be communicated. Further, in view of the judgment of the Honble Apex Court in, Abhijeet Ghosh Dastidar Vs. Union of India and others 2010 1 SCC (L&S) 959, all un-communicated below the benchmark gradings, are not to be taken into consideration for promotion. Thus, the applicant should have been considered for promotion by ignoring the un-communicated, below the benchmark gradings of the ACRs of 2001-02, 2002-03 and 2003-04.
4. The respondents, in their reply, submitted that the applicant was not promoted as his ACRs for 3 of the 5 years, for which ACRs were considered, were below the benchmark of very good. While his ACRs for 2001-02 and 2002-03 were average, the ACR for 2003-04 was good. However, there was no need to communicate these ACRs since as per the DoP&T instructions applicable at that time, the average gradings were not to be considered as adverse.
5. In regard to contention of the applicant pertaining to requirement of communication of all the below benchmark ACRs, the respondents have submitted that DoP&T had issued the instructions in regard to communication of all ACRs vide the OM dated 14.5.2009 (Annexure R-3) only. This was done pursuant to the judgment of Honble Supreme Court in Dev Dutts case. Since, the DPC was held in 2008, and concerned ACRS belong to the period 2001-02, 2002-03 and 2003-04, there was no question of treating these below benchmark ACRs as adverse at that time and communicate them to the applicant.
6. The respondents have further submitted that the matter regarding communication of below benchmark ACRs has been referred by Honble Supreme Court to larger Bench in the matters of Union of India Vs. A.K.Goel and others (Civil Appeal No.2872/2010). Thus, there is no irregularity in consideration of ACRs of the applicant for 2001-02, 2002-03 and 2003-04, which were below the benchmark and still not communicated to the applicant.
7. We have heard the learned counsel for the parties and perused the pleadings of the respective parties, and documents annexed therewith.
8. At the time of arguments, learned counsel for the applicant has filed copy of the order dated 16.12.2013 of Honble High Court of Madras in Writ Petition No. 33792 and 33828 of 2013. It is mentioned in this order that the matter regarding reference to the larger bench of Honble Supreme Court in the case of A.K.Goel (Supra) has been disposed of by the Honble Supreme Court vide the order dated 20.11.2013, wherein the Honble Supreme Court observed that, the reference has been correctly and squarely answered by the larger Bench decision in Sukhdev Singh Vs. Union of India and others 2013 (9) SCC 566, and Since, the question has already been answered, there is no necessity for further consideration by the larger Bench. The relevant paras 8 and 9 of the Apex Court judgment in Sukhdev Singh (Supra) are reproduced as under:
8. In our opinion, the view taken in Dev Dutt v. Union of India, 2008 (8) SCC 725 that every entry in the ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.
9. The decision of this Court in Satya Narain Shukla v. Union of India, 2006 (9) SCC 69, and the other decisions of this Court taking a contrary view are declared to be not laying down good law.
9. Thus, in our considered view, the respondents could not have taken into consideration for promotion the below benchmark ACRs of the applicant for the period 2001-02, 2002-03 and 2003-04, as they were never communicated to the applicant. Therefore, we direct the competent authority of the respondents to communicate these ACRs to the applicant, within a period of one month from the date of communication of this order. On receipt of such communication, the applicant may file his representation in regard to these ACRs before the competent authority of the respondents for review of grading/remarks in ACRs, within a period of one month. Thereafter, the respondents should decide the representation, if any, filed by the applicant within a period of one month. In case of appropriate upgradation of the concerned ACRs in such review, the review DPC should be convened for consideration of applicants case for promotion, within a period of one month from the date of decision on representation of the applicant. If the applicant is found to be fit for promotion by review DPC, he will be entitled for promotion from the date of promotion of officers promoted in consequence of the DPC held on 23.12.2008.
10. The learned counsel for the applicant did not press for the other reliefs prayed for in the O.A. and hence they are not discussed.
11. Thus, the OA is allowed. No order on costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member am 5 OA No.864/2010 Page 5 of 6