Central Administrative Tribunal - Delhi
B. P. Sinha S/O Awadesh Prasad Sinha vs Union Of India Through on 22 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.640/2009 This the 22nd day of October, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) B. P. Sinha S/O Awadesh Prasad Sinha, Controller of Mines, Indian Bureau of Mines, Bangalore R/O Y-4, CPWD Quarters, Vijay Nagar, Bangalore, Karnataka. Applicant ( By Shri Sunil Kumar, Sr. Advocate and with him Shri A P. Sahay, Advocate ) Versus 1. Union of India through Secretary, Ministry of Mines, Shastri Bhawan, New Delhi. 2. Chairman, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110011. Respondents ( By Shri K. M. Singh for Shri R. V. Sinha for Respondent No.1, and Ms. Alka Sharma for Respondent No.2, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Shri B. P. Sinha, presently holding the post of Controller of Mines, Indian Bureau of Mines, Bangalore, the applicant herein, has been ignored for promotion on the said post against the vacancies for the year 2005-06 both by the original and review DPCs. Whereas, on the first occasion even though, he was found to be having the benchmark for promotion but some adverse remarks came in his way for his promotion, in the review DPC ordered by this Tribunal, he has been ignored as one of his ACRs which was assessed as very good by the original DPC, has now been considered as only good, which would be below benchmark. The primary plea raised in the present Original Application ignoring the applicant for promotion on the post of Controller of Mines against the vacancies for the year 2005-06 even by the review DPC is that there was no occasion for the review DPC to assess one of his ACRs as good which had since already been assessed as very good by the original DPC.
2. The facts culminating into filing of this second Original Application for the same relief, culled out from the pleadings, reveal that the applicant joined Group A service on 30.4.1979 as Assistant Controller of Mines in the Indian Bureau of Mines and was promoted to the post of Deputy Controller of Mines on 6.8.1986, and as Regional Controller of Mines on 31.3.1998 and as Controller of Mines on 8.5.2008. The respondents prepared the seniority list of Regional Controller of Mines wherein the name of the applicant stood at serial no.4, i.e., among the top four candidates. It is the case of the applicant that entries in his ACRs are clean and without any adverse remarks, and that he maintained the benchmark of very good since the year 1979, and further that no such adverse remarks were communicated to him as well, except for a broken period, i.e., 1.7.2002 to 31.3.2003, which stood expunged by the competent authority. Four posts of Controller of Mines were vacant for the year 2005-06. The name of the applicant along with others was sent for consideration against the existing vacant posts. The applicant learnt from reliable sources that meeting of the DPC was convened for the post of Controller of Mines on 17.1.2007 for four posts for the year 2005-06, in which persons lower in seniority were recommended. Four candidates including juniors to the applicant were thus promoted on 28.2.2007. Constrained under the circumstances, the applicant filed OA No.66/2007 before Patna Bench of this Tribunal, which, vide judgment dated 28.3.2008 held that the DPC made the assessment of the applicant on the basis of incomplete ACRs and also after taking into account the adverse entry which was already expunged. To this extent the DPC was vitiated insofar as the present applicant is concerned. It was also held that the adverse entry in the ACR of the applicant should also not have been taken into account. A direction came to be issued to the respondents to hold review DPC on the basis of complete ACRs of the applicant, and after ignoring the adverse entry that had been expunged, if found fit, to promote him as Controller of Mines from the date his juniors had been so promoted. Pursuant to directions issued by this Tribunal, as mentioned above, review DPC was held on 3.10.2008. The review DPC considered the earlier ACR for the period 1999-2000 which was very good as only good, and for that reason only declared the applicant as unfit for promotion. It is the case of the applicant that insofar as, the entry in his ACR for the period 1999-2000 is concerned, the reporting authority assessed him as good. The reviewing authority, however, was of the opinion that the performance of the applicant during the year was quite good and accordingly took a conscious decision that the applicant should be graded as very good. As such, the remark of the reviewing authority had to be taken as final for the purpose of assessment. It was not open for the review DPC to downgrade the applicants ACR and assess him as only good for the year 1999-2000, is further the case of the applicant. The applicant also complains of no opportunity having been given to him before downgrading his ACR. The applicant avers that the respondents, out of sheer mala fides would not promote him, inasmuch as, firstly he was denied a fair consideration of his case for promotion as Controller of Mines by taking into account an adverse remark which had already been expunged, and then his incomplete ACRs were sent to the DPC, which also contributed in his being declared unfit, and again, when the review DPC was held, substitution of the grading very good as assessed by the original DPC, came about by the review DPC. Once, his ACR was assessed as very good by the DPC the same had to be taken as such and the applicant could not be declared unfit as he would meet the benchmark of very good in four out of five ACRs.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their separate replies contested the cause of the applicant. Inasmuch as, the contest shown by both the respondents is on identical grounds, we may refer to the counter reply filed on behalf of the 2nd respondent only. Guidelines/instructions issued by the Government of India in the Department of Personnel & Training vide office memorandum dated 10.4.1989, as amended from time to time, have been reproduced in the reply. On the basis of the guidelines aforesaid, it is pleaded that the Commission in exercise of its constitutional functions as envisaged in Article 320 of the Constitution took a conscious decision that an officer attaining at least four benchmark gradings (i.e., very good in this case) out of five ACRs, as prescribed by the Government of India vide OM dated 8.9.1998 read with subsequent OM dated 16.6.2000, should be assessed as fit for promotion and that this decision should be applicable to all DPCs pertaining to the vacancy year 2003-04 and subsequent years, and that since the applicant was not having the prescribed benchmark, i.e., four very good ACRs out of five, he was rightly assessed unfit for promotion. There is no denial to the fact that on the first occasion the applicant was ignored for promotion only because adverse remarks in his ACRs were taken into consideration, even though the same stood already expunged. It is also not in dispute that the first DPC had assessed the applicants ACR for the period 1999-2000 as very good. It is, however, pleaded that in review, the DPC assessed the ACRs of the applicant from 1.7.2002 to 31.3.2003 ignoring the adverse remarks which stood expunged, and that the committee further noted that the applicant was graded as good by the reporting officer in the year 1999-2000 but was upgraded to very good by the reviewing officer, and that the reviewing officer had assessed the quality of output as quite good. The committee after reviewing the work done by the applicant during the year and attributes recorded in his ACR decided that the upgradation done by the reviewing officer was not justified and he deserved to be graded as good only. The applicant was thus assessed as unfit by the review DPC as he failed to attain the prescribed benchmark of very good.
4. The only question that needs determination in the present case, as mentioned above, is as to whether the review DPC could change the grading of the applicant with regard to any of his ACRs already assessed by the original DPC, and if so, in what circumstances. The respondents have themselves referred to the instructions governing the field, contained in OM dated 10.4.1989 as amended from time to time. It may not be relevant to refer to the instructions insofar as, the same deal with the procedure pertaining to the first DPC, as surely, we are concerned only with the instructions and guidelines as may be applicable with regard to review DPC. The instructions in a situation where the reviewing authority or the accepting authority may differ or overrule the reporting officer, shall also be relevant. We may first refer to instructions in that regard. Para 5.3(f) of the instructions reads as follows:
(f) If the reviewing authority or the Accepting authority as the case may be has overruled the Reporting Officer or the Reviewing authority, as the case may be, the remarks of the latter authority should be taken as final remarks for the purposes of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing authority and Accepting authority are complementary to each other and one does not have the effect of overruling the other, then the remarks should be read together and the final assessment made by the DPC. The respondents have also referred to para 18.1 of the said OM which stipulates that the proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene review DPC to rectify certain unintentional mistakes, where an eligible person has been omitted to be considered, or where ineligible person has been considered by mistake, or where the scrutiny of a person is revised with retrospective effect resulting in variance of seniority list placed before the DPC, or where some procedural irregularity has been committed by the DPC, or where adverse remarks in the CRs have been toned down or expunged after the DPC has considered the case of the officer concerned. These instances, it is stated in para 18.1 itself, are not exhaustive but only illustrative. Para 18.2 also stipulates that the review DPC should restrict its scrutiny to the CRs for the period relevant to the first DPC, and further that the review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration, nor take into account any increase in the number of vacancies which might have occurred subsequently. It is the common case of the parties that the guidelines/instructions referred to above would govern the field, even though there is a serious dispute with regard to applicability thereof. Whereas, the counsel representing the applicant would vehemently contend that there was no scope for change of grading in the ACR of the applicant for the period 1999-2000 from very good to good, counsel representing the respondent would join issues with him with matching vehemence.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may, however, touch upon the core controversy between the parties, as mentioned above, it would be appropriate to deal with the factual aspect of the case.
6. It is not in dispute, as mentioned above, that whereas the original DPC assessed ACR of the applicant for the year 1999-2000 as very good, the review DPC assessed it only as good. We have carefully examined the ACR of the applicant for the year 1999-2000. We find that the applicant in part II of the ACR has given comprehensively his eight types of duties, targets and achievements in seven items, and thirteen items of his contribution for significant higher achievements and has clearly indicated that there was no shortfall with reference to targets/objectives. The reporting authority (Shri Tapan Biswas, Controller of Mines) had given his views on 12.6.2000 in parts III and IV of the ACR and the reviewing authority (Shri A. N. Bose, Controller General) has given his remarks on 16.9.2000 in part V of the ACR. We note from the remarks of the reviewing authority in part V of the ACR that the review DPC picked up only part of item III A.2 (His performance was quite good) and did not consider and record its reasons on the rest. The review DPC did not consider the remarks of the reviewing authority in column 3 part V that and he is a capable officer; in item III A.3 (Knowledge of sphere of work) that Application of knowledge of his subject to the work done was Very Good; and in column 4 part V that I agree with the general remarks. He has a very good knowledge of mine environment. His grading, therefore, should be Very Good instead of Good. The remarks in column 4 part V are in response to the views of the reporting authority against general assessment in column 3 part IV that He is very thorough in computer application. No shortcoming is observed; and on grading in column 4 part IV good. The reviewing authority did not agree with the views of the reporting officer with regard to items III A.2, III A.3 and the overall grading. He has given adequate reasons to upgrade the applicant from good to very good. It appears that the review DPC in consideration of the remarks of the reviewing authority as quite good was under the perception that it could be termed as only good, and while doing so, as mentioned above, other parts of the remarks given by the reviewing authority as reproduced above, were not taken into consideration.
7. Having seen the confidential report of the applicant for the year 1999-2000 in all its regards, be it self-assessment of the applicant or remarks of the reporting and reviewing authorities, we may now deal with the relevant rules. The guidelines/instructions contained in para 5.3(f) of OM dated 10.4.1989, reproduced hereinbefore, would clearly reveal that in case the reviewing or the accepting authority may overrule the reporting officer, the remarks of the latter authority should be taken as final remarks for purposes of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. Once, the reviewing authority had given adequate reasons to come to a conclusion different than the reporting officer with regard to overall grading of the applicant, in our considered view, it is the later overall grading of reviewing authority which had to be taken into consideration by the review DPC, more so when the original DPC while considering the same aspect, had chosen to go by the remarks of the reviewing authority. Insofar as, the proceedings of review DPC are concerned, it is clearly stated in para 18.1 of the OM referred to above that proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC, or if there have been grave errors in the procedure followed by the DPC. Only unintentional mistakes such as mentioned in para 18.1, which are not exhaustive, can be corrected. We are of the view that when the original DPC had taken into consideration ACR of the applicant for the year 1999-2000, which would be obviously in the context of the gradings given both by the reporting and the reviewing authorities, and assessed as very good, the same could not be taken as grave error in the procedure followed by the DPC, or an unintentional apparent mistake which may need correction. Surely, as mentioned above, the DPC had taken all material facts into consideration with regard to ACR of the applicant for 1999-2000. Even if one is to go by the remarks of the reviewing authority as quite good without even referring to other attributes of the applicant, as mentioned by the said authority, according to which the applicant was assessed as very good, the same to be only good, could at the most, be a perception of the review DPC. It could not be termed to be unintentional apparent mistake which may need correction. A simple case of change in perception or different perceptions would not be covered under parameters of differing with the view of the earlier DPC. In view of the instructions contained in para 18.2 of OM dated 10.4.1989, review DPC should restrict its scrutiny to the CRs for the period relevant to the first DPC, and the CRs of subsequent periods should not be considered. Further, if any adverse remarks relating to the relevant period were toned down or expunged, the modified CRs should be considered as if the original adverse remarks did not exist at all. Para 18.3 which also has a bearing upon the controversy in issue, reads as follows:
Review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently. The review DPC, as per para 18.3, would have power and jurisdiction to change the grading of an officer, but that, it again appears to be in the overall context of the rules with regard to technical or factual mistakes, and that too by recording reasons. Surely, there was no technical or factual mistake in assessing the ACR of the applicant for the period 1999-2000 as very good by the original DPC. The only reason given for assessing the said entry as only good, as mentioned above, is that whereas the reporting officer assessed the applicant as good but the same was upgraded as very good by the reviewing officer, and that the reviewing officer had assessed the quality of output as quite good. It was not a case of technical or factual mistake. As mentioned above, that the remark quite good would be good was only a perception of the review DPC, and that too without taking into consideration other attributes recorded in the ACR by the reviewing authority. Assuming that the review DPC could go beyond the technical and factual mistakes, the same ought to have been done while considering the relevant aspect of the case and in particular, the remarks given by the reviewing authority, which necessitated upgradation of the report from good to very good. The review DPC, we may repeat, downgraded the ACR of the applicant for the year 1999-2000 to good only, simply mentioning that the upgradation done by the reviewing authority was not justified, even though it was so said after stating that it was after reviewing the work done by the applicant during the year and the attributes recorded in his ACR, but as mentioned above, his commendable attributes mentioned by the reviewing authority do not find even a remote mention.
8. We are conscious that no court or tribunal would normally interfere with the gradings done by a duly constituted DPC. It would not substitute its views and come to a conclusion contrary to the one arrived at by the DPC. The counsel representing the respondents has cited some judicial precedents on that count, but once, we accept this to be a settled proposition of law, there would be no need to make a mention of the judicial precedents relied upon by the learned counsel. Present is, however, not a case of the court substituting its view for the one expressed by the review DPC. It is a case of transgression of the instructions or guidelines required to be followed by the Government itself. If perhaps, it would have been a simple case of the review DPC not taking into consideration the relevant factors, we might have remitted the matter once again to the review DPC to re-consider the matter, but in the present case, however, as mentioned above, the review DPC has changed the grading of the applicant as given by the original DPC for the year 1999-2000, for which there was no scope as per instant instructions.
9. Finding considerable merit in this Application, we allow the same. Consequently, we direct the respondents to consider promoting the applicant from the date his juniors were promoted, as fully indicated above. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/