Central Administrative Tribunal - Delhi
Sh. T.J. Geevarghese vs Union Of India Through on 29 May, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.330/2013 Reserved on:05.02.2015 Pronounced on:29.05.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Sh. T.J. Geevarghese S/o Sh. P.T. John, R/o C-7/701, PWO, Sector 43, Gurgaon (Haryana). Applicant (By Advocate: Sh. Ajesh Luthra) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Indian Council for Cultural Relations (Ministry of External Affairs), Through its Director General, Azad Bhawan, Indraprastha Estate, New Delhi 2. Respondents (By Advocate: Sh. M.K. Bhardwaj) O R D E R By Dr. B.K. Sinha, Member (A):
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 impugning the OM dated 31.12.2012 (Annexure A-1) intimating that the DPC held on 30.10.2012 did not assess him to fulfill the minimum benchmark prescribed under the relevant rules; and the Office Order dated 13/18.12.2012 empanelling five persons, namely, Padam Kumar Talwar, Smt. Naresh Kumari, Smt. Lesley Jacob, Rajesh Kapoor and Laxmaji Rao for promotion to the post of Senior Programme Director (PB-3 Rs.15600-39100 + Rs7600 GP) and reverting the applicant to the post of Programme Director as his name has not been recommended. The grievance of the applicant appears to be vis-`-vis one Lesley Jacob who has been ordered to be promoted subject to fulfillment of certain conditions.
2. The applicant contends that he is fully eligible and entitled for promotion to the post of Senior Programme Director while his juniors have been promoted on regular basis, he stands reverted. Admittedly, the applicant is neither under suspension nor chargesheeted nor facing any criminal prosecution nor any below benchmark ACRs have been communicated to him. He had been promoted as Senior Programme Director in February, 2012 on ad hoc basis when his ACRs had been scrutinized, and thereafter he has not been communicated any adverse ACRs. The applicant alleges that in absence of prescription whether the post is a selection or non-selection post and, in absence of any provision that a DPC shall be constituted to consider service record and then make its recommendation, the proceedings of DPC are invalid and non-est in the eyes of law and, therefore, his promotion ought to have been made on seniority-cum-fitness basis. The DPC is required to determine the merit of those being assessed for promotion with reference to the prescribed benchmark and accordingly grade the officer as fit or unfit only. Only those who are graded fit in this manner by meeting the prescribed benchmark are included in the select panel.
3. The applicant has prayed for the following main relief(s):-
(a) Quash the impugned order dated 31.12.2012 and also
(b) quash and set aside the impugned order dated 13/18.12.2012 to the extent the applicant has been denied appropriate place therein and consequently reverted to the post of Programme Director and
(c) direct the respondents to include the applicant in the select panel and to promote the applicant on regular basis to the post of Senior Programme Director w.e.f. the date of his reversion with all consequential benefits including monetary benefits.
4. The respondents have filed their counter affidavit stating that the applicant is a permanent employee of the Council holding the post of Programme Director in PB-3 (Rs.15600-39100) + 6600 GP w.e.f. 14.05.2004. He was promoted to the post of Senior Programme Director in the pay scale of PB-3 (15600-39100) + 7600 GP on ad hoc basis w.e.f. 13.02.2012. Admittedly, the DPC followed the criteria for promotion as laid down in DOP&T OM dated 08.02.2002 whereby the mode of promotion shall be selection with benchmark of Very Good and the DPC would grade the officers fit or unfit and only those who are graded fit shall be included in the select panel prepared by the DPC. It is the case of the respondents that the applicant was not found fit. The respondents have further added that the applicant has only a right to be considered for promotion and not a right to be promoted.
5. In order to adjudicate upon the issue before us, we required the proceedings of the DPC held on 30.10.2012, which have been placed before us by the respondents. We find from perusal of the DPC minutes that the APARs for a minimum period of three years should be available between the period 2006-07 and 2010-11.
6. The main grievance of the applicant is in context of one Lesley Jacob who, as per the applicant, did not have three years APARs during the period under consideration and despite that she has been selected subject to completion of APARs and certain other conditions, which is bad in law. Comparative chart of APARs relating to the applicant vis-`-vis Lesley Jacob is as under:-
Sl.No. Name 2006-07 2007-08 2008-09 2009-10 2010-11 1 T.J. Geevarghese NA G VG VG VG 2 Lesley Jacob NA NA VG NA NA From the above Chart, we note that APARs in respect of Lesley Jacob for the period 2006-07, 2007-08, 2009-10 and 2010-11 are not available. Therefore, we find that the DPC has committed a procedural lapse in the matter of selection of said Lesley Jacob with such records. As per the practice in vogue, where the APARs are not available, the option was there with the DPC to have gone back and considered the APARs which were available. However, the act of selection of said Lesley Jacob subject to fulfillment of certain conditions/APARs at a future date is against the methodology of the DPC. On the other hand, we find that the applicant has APARS available for the period 2007-08 to 2010-11 having been graded as Very Good except for the period 2007-08 as Good, but we are not aware whether it has been communicated or not as per the DOP&T OM dated 13.04.2010. In any case, the applicant has so many Very Good grades commensurate with the benchmark. Therefore, we are of the opinion that the DPC has committed a number of procedural irregularities. In the first place, there is no provision in the methodology given that a person would be selected subject to availability of APARs in future; in the second place, the applicant being a senior person, was having his APARs available, but it is not known as to on what basis he was found unfit as compared to Lesley Jacob, who was having only one APAR at the time of DPC. If at all the DPC wanted to adopt this mode of promotion that a person could have been selected despite not having required number of APARs for the purpose, this could have been mentioned in the methodology to be adopted by the DPC. We take note of the Rules structure that that there cannot be either any pick and choose or discrimination against any of the candidates. Looking at the APARs and service profiles of the two persons i.e. Lesley Jacob and the applicant, we find that the applicant definitely stands on a better footing if compared to said Lesley Jacob. This position has not been taken into account. We are further intrigued by the position that promotion has been given to said Lesley Jacob on the basis of the ACRs/APARs not before the DPC. We are of view that the DPC is guilty of disregarding the prescribed procedure, and, therefore, find substantial force in the argument of the applicant. We also find the proceedings of the DPC insofar as it relates to the applicant, violative of Articles 14 & 16 of the Constitution. We are conscious of the fact that as the said Lesley Jacob has not been impleaded as party respondent in the instant case, no order affecting her can be passed. However, we find that there is discrimination visible on face of it in relation to the applicant. Therefore, we allow the instant Original Application in the following terms:-
(i) The impugned order dated 31.12.2012 and 13/18.12.2012 insofar as it relates to the applicant are quashed and set aside.
(ii) The respondents are directed to convene a review DPC to consider the case of the applicant at par with that of the said Lesley Jacob after having designed a suitable methodology for consideration.
(iii) There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/