Central Administrative Tribunal - Delhi
Shri Pala Singh Tanck vs Union Of India on 5 January, 2015
Central Administrative Tribunal Principal Bench OA No. 1111/2011 Order Reserved on: 25.09.2014 Order Pronounced on:05.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri Pala Singh Tanck, S/o Shri Baru Ram, R/o 401, Minto Road Hostel, New Delhi-110002 Working as Adviser (Statistics) Ministry of Commerce & Industry, Tariff Commission, Lok Nayak Bhawan, Khan Market, New Delhi-110003 -Applicant (By Advocate: Shri R.V. Sinha) -VERSUS- Union of India, Ministry of Statistics & Programme Implementation, Sardar Patel Bhawan, Sansad Marg, New Delhi-110001 (through its Secretary) -Respondent (By Advocate: Shri Amit Anand) O R D E R
Dr. B.K. Sinha:
The applicant vide the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, impugns the OM dated 25.08.2010 rejecting his representation against the below benchmark grading in his ACR/APAR for 2006-07 (1.8.2006 to 31.3.2007) and year 2007-08 (1.4.2007 to 30.8.2007). The applicant is further aggrieved with the grading Average assigned in the ACRs, which is below the benchmark prescribed.
2. The applicant seeks the following reliefs vide this OA:-
(a) Call for the original file(s)/record(s) of the respondent dealing with proceedings of DPC held for promotion to the grade of SAG and peruse the same;
(b) Declare the Office Memorandum No.12011/33/10-APAR(ISS) dated 25.8.2010 (Annexure-A Impugned) and the ACRs for the 2006-2007 (1.8.2006 to 31.3.2007) and the year 2007-08 (1.4.2007 to 13.8.2007) [Anneuxre-A (colly) Impugned] as arbitrary and illegal and consequently quash the same.
(c) Direct the respondent to consider the claim of the applicant herein for promotion to the grade of SAG (pay scale of Rs.37400-6700+GP Rs.10000) ignoring the impugned ACRs by review DPC within stipulated period with consequential benefits, i.e., seniority, revised pay, arrears of pay and allowances, etc. from the date junior of the applicant was granted promotion, after ignoring the same or alternatively considering the ACRs of previous years prior to that;
(d) Award cost of this application and proceedings against the Respondent and favour of the Applicant.
(e) May also pass further order(s) as be deemed just and proper to meet the ends of justice.
3. The applicant belongs to the Indian Statistical Service (ISS) and has been working as Director on regular basis in the pay scale of Rs.37400-67000 with Grade Pay of Rs.8700 since the year 2003. He was considered for promotion to Senior Administrative Grade (SAG) in the pay scale of Rs.37400-67000 with Grade Pay of Rs.10000/- by DPC held on 28-31.7.2009. Accordingly, promotion orders were issued vide OM dated 11.12.2009. However, though the applicant was eligible for promotion to the SAG, but was not promoted whereas his juniors were promoted overlooking the claim of the applicant. The applicant using the process of RTI, learnt that his ACRs for the period 1.8.2006 to 31.3.2007 and 1.4.2007 to 30.08.2007 while posted as Joint Director at NSSO, FOD, Ludhiana, were below benchmark and that he had been graded as Average against the benchmark requirement Very Good.
4. The applicant approached this Tribunal vide OA No. 825/2010, which was disposed of vide order dated 12.07.2010 directing the respondent to decide the representation of the applicant within six weeks from the date of the order. In case representation of the applicant were to be accepted and his ACRs upgraded commensurate with the benchmark, the respondents, in that event, were to consider him for promotion to the post of SAG by constituting a review DPC within six weeks from the date of accepting his representation. However, the applicants representation was rejected vide the impugned order dated 25.08.2010. The applicant approached this Tribunal vide the present OA, which was dismissed vide the order dated 29.3.2011. Aggrieved by this, the applicant filed WP(C) No.6942/2012. The Honble High Court in consideration of the same, disposed of the Writ Petition vide order dated 04.03.2013 setting aside the order of this Tribunal dated 29.3.2011 and restored the present OA for fresh adjudication by the Tribunal. That is how the OA has come up again before this Tribunal.
5. The applicant has adopted the following grounds:-
(i) In the first place, the impugned Average grading in the ACRs is not based on any material facts before the authorities concerned and no advisory or warning was ever issued to the applicant by the reporting or reviewing officers during the respective period. Thus, the Average grading/remarks have been made contrary to the objective of writing of ACRs. Even otherwise, the grading as Average in the respective impugned ACRs of the applicant are contrary to the findings recorded by the reporting/reviewing officers in the assessment in APAR proforma and the ACRs for prior and subsequent years. Thus, the Average grading/remarks in the impugned ACRs do not sustain as being illegal and arbitrary. The applicant has relied upon the following cases over this point:-
(a) Sukhdeo Vs. Commission of Amravati Divn & Anr. (1996) 5 SCC 103 para 5-6.
(b) M.A. Rajshekhar Vs. State of Karnataka & Ors. (1996) 10 SCC 369 par 4 & 5
(c) State of UP Vs. Yamuna Shankar Mishra (1997) 4 SCC 7 para 7 & 8
(d) S.T. Ramesh Vs. State of Karnataka & Ors. (2007)9 SCC 436 para 39 and 41
(e) Rajinder Singh Sehrawat Vs. UOI, 2001(93) DLT 417 para 4 & 5
(f) Rajnish Jain Vs. UOI (OA No. 1362/2012) dated 07.02.2013 para 9 and 10.
(ii) In the second place, the Average grading recorded in the impugned ACRs for the period under consideration remained un-communicated when the same were taken into consideration by the DPC held 28-31.7.2009 and, therefore, it could not have been considered by the DPC the same being arbitrary and illegal. Here, the applicant has relied upon the cases decided by the Honble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India & Ors. (2009)16 SCC 146 (para 8), Sukhdeo Singh Vs. Union of India & Ors., 2013(4) SLR 440 (Paras 6,7,8 & 9) and also a decision of Honble High Court of Delhi in Union of India Vs. V.S. Arora, 2012(8) AD (DEL) 365 (Paras 13,14, 24 & 25). As per the law declared by the Honble Apex Court, the learned counsel for the applicant submitted that the un-communicated ACRs have to be ignored and review DPC has to be held in terms of Para 25 of the judgment of the Honble Delhi High Court in V.S. Aroras case (supra).
(iii) In the third place, there is total lack of application of mind on the part of the authorities recording the impugned ACRs as would be evident from a bare reading of the same. These ACRs have been recorded without any reasons, thereby vitiating the ACRs altogether.
(iv) In the fourth place, the ACRs have been written by the incompetent authorities. The Additional Director General, FOD, is the Head of the Department and controlling officer for Director. The works like Annual Survey of Industries, Agricultural Statistics Survey etc. were examined and supervised by the ADG himself. The applicant being Head of the Office/Drawing and Disbursing Officer in respect of Gazetted and Non-Gazetted staff and controlling officer of the Regional Office, Ludhiana, handled all the technical, administration and financial matters. The applicants technical work was approved and controlled directly by the ADG. The applicant further submits in the OA that the work of Director and Deputy Director General in the Regional Office, NSSO (FOD) is of the same nature, both of them reporting to the Additional Director General. As per the OM dated 06.11.1998, Deputy Director General (FOD), New Delhi was the Head of Department and the controlling officer for Director. The ACRs for the years 2006-07 and 2007-08 and the previous years were reported and reviewed by Deputy Director General/Additional Director General (FOD) HQ, New Delhi. However, during the period 1.8.2006 to 31.3.2007 and 1.4.2007 to 13.08.2007, the Deputy Director General (Zone), Jaipur recorded the ACRs of the applicant arbitrarily and without jurisdiction and without having occasion to assess the performance of the applicant.
6. The applicant further submits that one K.D. Sinha, Additional Director General, FOD, HQ, was the person authorized and entitled to record the ACRs of the applicant for the period 4.8.2006 to 29.12.2006 and the reviewing officer was Shri S.Roy. Shri K.D Sinha retired on 31.12.2006 and Shri S.Roy retired on January, 2007. Likewise, one J.Dash, working as Additional Director General, FOD, HQ, was competent and authorized to complete the ACRs of the applicant for the period 30.12.2006 to 31.03.2007 and 1.4.2007 to 1.8.2007 as he had supervised the performance of the applicant during the period. The reviewing officer in respect of the applicant was one S.K. Sinha, DG, NSSO, for the period 1.4.2007 to 1.8.2007. Thus, these ACRs having been written by incompetent authorities cannot be taken on record.
7. The respondent has filed a counter affidavit rebutting all the averments in the OA. The respondent submits that the applicant had requested for providing his ACRs for the years 1.8.2006 to 31.3.2007 (2006-07) and 1.4.2007 to 30.8.2007 (2007-08) vide his representation dated 24.4.2010 and the applicant was provided photocopies of ACRs for the period from 1.8.2006 to 31.3.2007 and 01.04.2007 to 30.8.2007 having below benchmark grading as Average vide Ministrys OM No.12011/4/2008-ACR (ISS), dated 11.5.2010 (Annexure R-2) for making representation against the entries and final gradings in these reports in terms of DoPTs OM dated 13.4.2010. The applicant submitted a representation dated 24.5.2010 against the below benchmark gradings in his APAR for the periods of 1.8.2006 to 31.03.2007 and 1.4.2007 to 30.08.2007. In his representation, the applicant claimed that he had been assessed by the DDG (Zone) Jaipur, who never supervised his work during period 1.8.2006 to 31.3.2007 and 1.4.2007 to 13.08.2007, arbitrarily gave him Average ACR grading while for other years, his performance was categorized as consistently as Very Good and Outstanding by the officers who directly supervised his work. The applicant had failed to submit any documentary proof for his claim. He has further stated that the reporting officer had assessed him willing and systematic officer; able to take decisions; capable person who could be relied upon and maintain cordial relations with superiors, colleagues and subordinates. The applicant laments that in spite of all these positive attributes, his overall grading has been assessed as Average. The representation of the applicant was processed and was forwarded to the respective reporting and reviewing officers for the comments, who duly offered their comments with documentary evidence. The reviewing officer had also gone through the assessment made by the reporting officer and agreed to the remark given by him in various columns of the ACRs and he did not find any reason to disagree with the reporting officer who was closely monitoring the functioning of the applicant. The applicant had earlier filed OA No. 825/2010 in the Tribunal in the matter of communication of below benchmark ACRs. In its order dated 12.07.2010, the Tribunal recorded that it was not disputed during the course of arguments that below benchmark ACRS have been communicated to the applicant during the pendency of the OA, against which the applicant had even made the representation. Therefore, the Tribunal ordered that his representation be decided within six weeks from the date of order. The representation of the applicant dated 24.5.2010 as well as the comments of the reporting and the reviewing officers thereon were placed before the competent authority, i.e., Secretary (Statistics & Programme Implementation) for deciding the representation of the applicant objectively in a quasi judicial manner in accordance with instructions contained in DoPTs OM dated 13.04.2010. After having examined the matter in detail, the competent authority did not find any merit in the claim of the applicant, as he himself had submitted his self-appraisal to the reporting officer. The competent authority further found that the claim of the applicant that his ACRs for the other years were either outstanding or very good not substantiated by facts. Accordingly, the competent authority, having found no merit in the claim of the applicant for upgradation of his ACR/APAR for the periods under consideration, rejected his representation and communicated this fact vide OM dated 25.8.2010.
8. The respondent has, therefore, strongly contested the claim of the applicant that the order of the rejection dated 25.08.2010 by the competent authority was without application of mind and arbitrary. Per contra, the respondent submits that the order was well considered after having followed the procedure prescribed for consideration as per OM dated 13.04.2010 in an objective and fair manner.
9. The respondent in respect of the contents of grounds 5(ii) (iii) submitted that prior to the reporting period 2008-09, only the adverse remarks in ACRs were used to be communicated to the concerned officers for making representations. Since there were no adverse remarks in the ACRs of the applicant for the period of 1.8.2006 to 31.3.2007 and 1.4.2007 to 30.8.2007, these ACRs were not communicated to the applicant prior to DoP&T instructions dated 13.4.2010. However, as soon as the instructions for communicating below benchmark gradings were issued by the DoPT, copies of these ACRs were forwarded to the applicant for making representation.
10. The respondent in their reply further submitted that the competent authority had issued order dated 25.8.2010 after having decided the matter objectively in a quasi judicial manner by following due procedure laid down by DoPT.
11. The respondent further submits that on the substantive issue of upgradation of his ACRs for period 1.8.2006 to 31.3.2007 and 1.4.2007 to 30.8.2007, no facts and achievements have been adduced by the applicant in support of his claim for upgradation of his ACRs for the relevant period, except for the fact that his ACRs for other periods were all either Good or Outstanding, which is his imagination and not supported by any facts.
12. The respondent in respect of Ground 5(x)-(xiii) in OA submits that on 1.9.2008, 127 posts of JAG of ISS were upgraded to SAG Level with the approval of Cabinet. Thereafter on 11.12.2009, 94 officers were found fit for promotion by DPC held in UPSC. The DPC considered ACRs for five years from 2002-2003 to 2006-2007 in respect of all eligible officers in the feeder grade for assessment, including that of the applicant, who was assessed as unfit in terms of DoPT OM No.22011/3/2007-Estt(D) dated 18.2.2008, which stipulates that for promotion to the post in the pre-revised pay scale of Rs.18400-22400, invariably the benchmark of Very Good is required in all ACRs of five years under consideration from the panel year 2008-09 onwards. The respondent also submits that the DPC was held strictly in accordance with the guidelines/instructions of DoPT. Further, DoPT instructions nowhere provide that the below benchmark grading in ACRs prior to 2008-09, should be communicated and that the same should be ignored if not communicated. However, subsequently in April, 2010, DoPT issued instructions to communicate all below benchmark entries of ACRs (re-named APARs). These instructions were also applicable to the future DPCs. It was in light of these instructions that all the below benchmark grading of the applicant were communicated to him vide letter dated 11.5.2010 and his representation was disposed of by the competent authority vide letter dated 25.8.2010 under the terms of the DoPT instructions contained in OM dated 13.4.2010. Hence, the DPC meeting held at UPSC assessed him along with other similarly placed officers based on communicated ACRs and again found him unfit.
13. The respondent has also relied upon the cases decided by the Honble Supreme Court in Nutan Arvind Vs. Union of India & Anr. (1996)2 SCC 488, UPSC Vs. H.L. Dev and Ors., AIR 1988 SC 1069, Dalpat Abasahab Solanke Vs. B.S. Mahajan, AIR 1990 SC 434, Anil Katiyar Vs. UOI & Ors., 1971(1) SLR 153 and Union of India & Anr. Vs. S.K. Goel & Ors. [Civil Appeal No. 689 of 2007 (arising out of SLP (C) No. 2410/2007) to contend that when a high level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the courts are precluded from sitting over the assessment made by the DPC as an appellate authority.
14. The applicant has submitted a rejoinder application enclosing copy of OM dated 6.11.1998 laying down the duties and responsibilities of the Deputy Directors in the Regional Offices and Zonal Centres and also a chart showing the reports about his performance and authorities who have reported and reviewed his performance during 2000-01 to 2012-13. The applicant, in his rejoinder, has by and large reiterated his submissions made in the OA.
15. The applicant has also submitted written arguments stating therein that the adverse grading in the ACR for the period under consideration not being based on material facts; such remarks not being communicated which deserve to be ignored; rejection of his representation being arbitrary and without application of mind; and remarks being written by the incompetent authority. Since the oral arguments of the learned counsel for the applicant were confined to consideration of these points, we also consider these points alone and none others.
16. We have carefully considered the pleadings of the rival parties as also documents submitted by them and the oral submission made by their respective parties. On the basis of the above, we find the following issues germane to consideration of the case:-
(i) What is the scope of judicial intervention in respect of the challenge to the ACRS?
(ii) Whether the ACRs have been written by incompetent authorities?
(iii) Whether the ACRs were considered inappropriately by the DPC?
(iv) What relief, if any, can be provided to the applicant?
17. In respect of first of the issues, the Honble Supreme Court have laid down the boundaries of the scope of judicial intervention in matters of ACRs. In the case of Nutan Arvind (Smt.) Vs. Union of India & Anr., (1996) 2 SCC 488, the Honble Supreme Court, faced with a similar issue, held as under:-
5. The DPC which is a high level committee, considered the merits of the respective candidates and the appellant, though considered, was not promoted. It is contended by learned counsel for the appellant that one K.S. Rao was the officer at the relevant time to review the performance of the appellant whereas in fact one Menon had reviewed it. The latter was not competent to review the performance of the appellant and to write the confidentials. We are afraid we cannot go into that question. It is for the DPC to consider at the time when the assessments of the respective candidates is made. When a high level committee had considered the respective merits of the candidates assessed the grading and considered their cases for promotion, this Court cannot sit over the assessment made by the DPC as an appellate authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is not competent to write the confidentials is for them to decide and call for report from the proper officer. It had done that exercise and found the appellant not fit for promotion. Thus we do not find any manifest error of law for interference.
18. Likewise in the case of UPSC Vs. H.L. Dev & Ors. AIR 1988 SC 1069, the Honble Supreme Court have held as under:-
How to categorize in the light of relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The jurisdiction to make the selection is vested in the Selection Committee.
19. Again in the case of M.V. Thimmia & Ors. Vs. UPSC, (2008) 2 SCC 119, the Honble Supreme Court relied upon earlier decision in Anil Katiyar Vs. UOI & Ors., (1997)1 SCC 280 and held as under:-
16. Our attention was invited to a decision of this Court in Anil Katiyar (Mrs.) v. Union of India & Ors. [(1997) 1 SCC 280], it was observed as follows:
"The question is whether the action of the DPC in grading appellant as "very good can be held to be arbitrary. Shri G.L. Sanghi, the learned Senior Counsel appearing for the Union Public Service Commission, has placed before us the confidential procedure followed by the DPCs in the Union Public Service Commission for giving overall gradings, including that of "outstanding, to an officer. Having regard to the said confidential procedure which is followed by the Union Public Service Commission, we are unable to hold that the decision of the DPC in grading the appellant as "very good instead of "outstanding can be said to be arbitrary. No ground is, therefore, made out for interference with the selection of Respondent 4 by the DPC on the basis of which he has been appointed as Deputy Government Advocate. But, at the same time, it must be held that the Tribunal was in error in going into the question whether the appellant had been rightly graded as "outstanding in the ACRs for the years 1990-91 and 1991-92. The observations of the Tribunal that out of the two "outstanding gradings given to the appellant one "outstanding grading does not flow from various parameters given and the reports entered therein, cannot, therefore, be upheld....Therefore, in view of catena of cases, Courts normally do not sit in the court of appeal to assess the ARCs and much less the Tribunal can be given this power to constitute an independent Selection Committee over the statutory Selection Committee. The guidelines have already been given by the Commission as to how the ACRs to be assessed and how the marking has to be made. These guidelines take care of the proper scrutiny and not only by the Selection Committee but also the views of the State Government are obtained and ultimately the Commission after scrutiny prepares the final list which is sent to the Central Government for appointment. There also it is not binding on the Central Government to appoint all the persons as recommended and the Central Government can withhold the appointment of some persons so mentioned in the select list for reasons recorded. Therefore, if the assessment of ACRs in respect of Shri S. Dayashankar and Shri R. Ramapriya should have been made as "outstanding or "very good it is within the domain of the Selection Committee and we cannot sit in the court of appeal to assess whether Shri R. Ramapriya has been rightly assessed or Shri Dayashankar has been wrongly assessed. The overall assessment of ACRs of both the Officers were taken; one was found to be "outstanding and the second one was found to be "very good. This assessment cannot be made subject of Courts or Tribunals scrutiny unless actuated by mala fide."
Therefore, the ratio that we can deduce from the afore cases, is that the Tribunals/Courts are not to act as superior authorities in respect of writing ACRs. The DPCs have instructions and the right to re-grade the ACR recorded for particular year/years. This assessment is not subject to judicial scrutiny unless otherwise hit by malafide. Some of the grounds, they are to be extremely circumspect while sitting in judgment over the ACRs are: ACRs can normally be interfered on ground of being written by incompetent authority; malafide or the authorities acting against the valid instructions in this regard and none else. The issue is accordingly answered.
20. Now we take up the second of the issues. This issue stems from the allegation of the applicant that the ACRs were recorded by the incompetent authority and they should have been recorded by some other officer. The applicant has submitted that as Director (FOD), Ludhiana, he was reporting to ADG (FOD), New Delhi, during the period under consideration. As per instructions, ACRs should be recorded by an officer who had an opportunity to supervise the work of the officer reported upon. The applicant has further stated that ADG (FOD) remains controlling officer for the Director and his work like Annual Survey of Industry, Agriculture Statistics & Survey, his functions as Head of the Office/DDO in respect of the Establishment matter and other financial and technical works were approved and controlled directly by ADG. The work of Director and DDG in the Regional Office is of the same nature and therefore, other officers equal in his designation in the Regional Office (FOD), Chandigarh and Shimla were directly reporting to ADG. During the period 2006-07 and 2007-2008, DDG, Jaipur, who never supervised his work graded him adversely, whereas for other years, his performance was graded either as Very Good or Outstanding. In this regard, comments of the reviewing and reporting officers were obtained. It has been mentioned in the afore order that the reporting officer of the applicant had furnished documentary evidence to establish that he was reporting officer, contrary to the claim made by the applicant. The reporting officer has further submitted that it was the applicant who himself had submitted his self-appraisal for the relevant period to him for reporting. As regards the substantive issue of the remarks/observation on various attributes of ACRs of the applicant for the period 1.8.2006 to 31.3.2007 and 1.4.2007 to 30.8.2007, the reporting officer stated that he had made his observations after due consideration of the capability/capacity of the applicant and based on the work assigned and carried out by him. This has been supported by comments of the reviewing officer. The reviewing officer agreed with the comments made by the reporting officer and had found no reason to disagree with the reporting officer who was closely monitoring the functioning of the applicant. In this regard, we look at the remarks of the reporting and reviewing officers in respect of the ACRs for the period 01.04.2007 to 13.08.2007. In respect of column 2, the reviewing officer writes yes, the Reporting Officer has made the report with due care and attention, except that he has not commented upon the training needs of the officer against item 5 in page 13. In Column 3, he writes yes, I agree. The officer should be given training on financial management and vigilance matters. In column 4, reviewing officer writes I agree with the reporting officer w.r.t. the general remarks and grading. Likewise, in respect of B of Part III i.e. Attributes, the reporting officer in column 1 writes He performs his duties willingly and is systematic. In column 2, he writes He can take decisions. In column 3, He is capable of handling unforeseen situations on his own and willing to take additional/responsibility and new areas of work. In column 4, he writes He is able to get support from his subordinates. In column 5, he writes He can be relied upon. In column 6, he writes He can analyze and communicate. In column 7, he writes cordial relations with superior, colleagues and subordinate and appreciate others point of view. In column 8, he writes There is no dealing with the public. In column 9, he writes He understands their problems.
21. We also take into account the fact that the applicant had also filed OA No. 825/2010 in the Tribunal in matter of communication of below benchmark ACRs. This Bench in its order dated 7.11.2007 directed as under:-
2. At this stage, in the circumstances as mentioned above, we only direct the respondents to decide the representation of the applicant within six weeks from today. If the representation of the applicant is accepted and his ACRs are upgraded commensurate with the benchmark, respondents in that event would consider the applicant for promotion to the post of Senior Administrative Grade by constituting as review DPC within six weeks from the date his representation is accepted. OA stands disposed of accordingly. Thus, the point of incompetent person writing ACRs has not been agitated. The competent authority i.e. Secretary, Statistics and Programme Implementation, as per instructions contained in OM dated 13.4.2010, rejected the same. Here we are swayed by two facts that the department has stated on affidavit that both the reporting and reviewing officers are authorities competent to review the ACRs of the applicant. This Bench earlier in its order dated 07.11.2012 had not upheld this point but had simply directed the competent authority to dispose of his representation. It stands to reason that had the Tribunal found any merit in the application on ground of ACRs being written by incompetent authorities, the same would have been struck down. However, this Bench had not taken this decision. Instead it had only directed disposal of the representation. The second ground that sways us is that the applicant had himself submitted his ACRs to the reporting officer. Therefore, he cannot now turn around and say that they are incompetent authorities. The applicant is estopped from doing so. It is too late in the day for the applicant to take this plea. Therefore, this issue is decided against the applicant.
22. Insofar as the third issue is concerned, the sequence of events is that on 1.9.2008, 27 posts of JAG of ISS were upgraded to SAG Level with the approval of the Cabinet. Thereafter on 11.12.2009, 94 officers were considered by the DPC and were found fit for promotion. Accordingly, orders of promotion were issued after approval of ACC. The DPC considered the ACRs for five years from 2002-03 to 2006-07 in respect of all eligible officers in the feeder grade of the assessment, including those of the applicant who was assessed unfit in terms of DoPT OM dated 18.2.2008.
23. We have also taken note of the comments of the reporting officer dated 30.06.2010 on the representation of the applicant, which is worth extracting:-
The representation made by Shri P.S. Tanck the then Director, Ludhiana does not reflect the facts. It has been stated by him that the undersigned was not the reporting officer and therefore not entitled to write the ACRs. The following points are made:
1. The ACRs under reference were submitted by Shri P.S. Tanck himself for reporting as the Zonal DDG was the reporting officer for regional Directors/Joint Directors at that time.
2. The leave application of the regional heads were submitted to ADG, FOD Hqrs. Through Zonal DDGs (Copy of the OM enclosed Annexure-1).
3. Shri P.S. Tanck submitted his leave applications to the undersigned (copy of one of the leave application dated 9.8.2007 enclosed Annexure-II).
4. The tour programme of the regional Directors were submitted to the FOD, Hqrs. through Zonal DDGs (Copies of the tour programme of Shri P.S. Tanck for the months of August to December 2006 and January to May 2007 enclosed Annexure-III)
5. The Monthly Progress Reports of the Regional Offices were also consolidated at the zonal level and forwarded to the FOD, Hqrs., New Delhi.
6. The inspection and the supervision of the work of the Regional Offices not headed by the DDGs were done by DDG, Zone.
7. In December 2006, Shri P.S. Tanck did not adhere to his tour programme and he was instructed to inform the Hqrs. and the Zonal office about the changes in the tour programme (copy of the memo. Issued by the undersigned enclosed Annexure-IV).
8. In technical matters also Shri P.S. Tanck submitted the papers to the undersigned like rotation of work amongst the staff members and their rotation of work amongst the staff members and their rotations (copy of the letter by Shri P.S. Tanck to the undersigned regarding rotation of work amongst the staff members of Ludhiana region enclosed Annexure-V).
ADG had reviewed the ACRs and agreed with the assessment of the reporting officer that assessment had been made with due care and attention and also agreed with the general remarks and grading.
The remarks in the ACRs have been made after due consideration of the capability/capacity of Shri P.s. Tanck and the work assigned and carried out by him. In fact, a very lenient view has been taken in giving the grading as average in both the ACRs and in both cases the reviewing authority has agreed with the grading. This does not leave the issue in any form of doubt.
24. Now we come to the fourth of the issues that whether the ACRs have been inappropriately considered by the DPC. The argument of the applicant is that the DPC held on 28-31.7.2009 considered his case for promotion but did not find him fit for promotion as two ACRs for the period under consideration were also considered by the DPC. These ACRs were not communicated to the applicant, and therefore, it has been argued that they should not have been taken into consideration. In this regard, the admitted position is that the ACRs were considered by the DPC held on 28-31.7.2009 on the basis of which the applicant was not found fit for promotion and that these ACRs had not been communicated to the applicant. It is also an admitted position that prior to reporting period 2008-09, the practice was that only the adverse remarks in the ACRs were communicated to the concerned officer for making representation. However, it was only after the judgment of the Honble Supreme Court in Dev Dutt & Ors. Vs. Union of India & Ors. (2008) 8 SCC 725, this practice was done away with and even below benchmark ACRs were communicated. It is further admitted that since there were no adverse remarks in the ACR of the applicant for the period 1.8.2006 to 31.7.2007 and 1.4.2007 to 30.8.2007, these ACRs were not communicated to the applicant. However, the situation was altered by the DoPT instructions issued on 13.4.2010, which is being extracted as hereunder:-
Subject:Below Benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradatin of the final grading.
The undersigned is directed to say that prior to the reporting period 2008-09, 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. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and 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 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for 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, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
2. As per existing instructions, representations against the remarks or for upgradation 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/gradings given bv 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 majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries / Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting / Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority.
In the light of the above OM, the ACRs for the period under consideration were communicated to the applicant vide order dated 11.5.2010 (Annexure R-2). The applicant submitted his representation on 24.5.2010. However, the comments of the reporting officer on the representation against below benchmark ACRs were communicated by one Sarvesh Kumar, Deputy Director General, Zonal Office Jaipur on 30.06.2010. In the meantime, the applicant had filed OA No. 825/2010 before this Bench, which was disposed of on 12.7.2010 directing the respondents to dispose of his pending representation. The impugned order rejecting the representation of the applicant was filed on 25.08.2010. Thus, there appears to be nothing wrong in the consideration of the two ACRs for the period 1.8.2006 to 31.3.2007 and 1.4.2007 to 30.8.2007 by the DPC inasmuch as the instructions dated 13.4.2010 are post-DPC. It is also to be noted that the respondent had acted very promptly in communicating the ACR after receipt of OM dated 13.4.2010.
25. Now we come to the DPC wherein two ACRs for the period 1.8.2006 to 31.3.2007 and 1.4.2007 to 30.8.2007 were placed. However, the DPC considered these ACRs and found the applicant unfit for promotion because these two ACRs being below benchmark. In this regard, the respondent has rightly relied upon the decided case of Union of India Vs. S.K. Goel & Anr. (Civil Appeal No. 689/2007 arising out of SLP No. 2410/2007) in which Court has held as under:-
The DPC enjoy full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not called for.
This decision further derives support from Anil Katiyar Vs. UOI & Ors. (supra).
26. In narration of the above sequence, we find no infirmities or procedural irregularities or acting against lawful instructions of the Government against the respondents. The issue is accordingly decided. The applicant has urged in this OA that all his other ACRs were at par with the benchmark and has submitted the following table:-
S.No. Year/Month Grading
1.
April 2005-Feb 2006 Outstanding
2. April 2006-July 2006 NRC Available
3. 01.08.2006 to 31.03.2007 Average
4. 01.04.2007 to 13.08.2007 Average
5. Oct.2007 to March 2008 Very Good
6. 2008-09 Good
7. 2009-10 Very Good
8. 2010-11 Very Good
9. 2011-12 Outstanding
10. 01.04.2012 to 02.08.2012 Very Good
11. 03.08.2012 to 31.03.2013 Very Good However, this has been denied by the respondent in his counter affidavit and even in the course of arguments. Cursory glance at this table indicates that the ACRs of 2008-09 were Good whereas benchmark is Very Good.
27. We have seen that there is limitation of judicial scrutiny of the ACRs. The courts cannot step into the shoes of the reporting and the reviewing authorities. Its boundaries have been defined by the Honble Supreme Court which providing that the judicial intervention would only arise in cases of malafide, infringement of rules or incompetent person writing ACRs. We have examined all these three concepts and have not found anything on record to sustain malafide or any infringement of rules. We have also seen that the Honble Supreme Court in case of S.K. Goel (supra) and Anil Katiyar Vs. UOI & Ors. (supra) has upheld the authority of the DPC in terms of the consideration. Hence, we find there is no case for judicial intervention. We have also found that all the cases relied upon by the applicant do not relate to the facts of the instant case and any analysis thereof would only add to the bulk of the order.
28. In conclusion, we find the OA devoid of merit and are constrained to dismiss the same. No costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/