Central Administrative Tribunal - Delhi
Coram vs Union Of India And Others on 31 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO. 4117 OF 2012 New Delhi, this the 31st day of January, 2014 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER V.K.PURI, A-184, Sarita Vihar, New Delhi 110076 .. Applicant (By Advocate Shri Amit Anand Tiwari) Vrs. UNION OF INDIA AND OTHERS 1. The Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi 110001. 2. The Chairman, Central Board of Excise & Customs, North Block, New Delhi 110001. 3. The Director, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions.. Respondents (By Advocate Shri Rajeev Kumar) . O R D E R Raj Vir Sharma, Member(J):
1. In this Original Application, the applicant has prayed for the following relief:
a) Quash the letter dated 8.6.2012 issued by Department of Revenue, Ministry of Finance rejecting the representation of the Applicant;
b) Declare the OM dated 13.4.2010 of DOPT as illegal and arbitrary in so far as it restrict communication of below benchmark ACRs of period prior to 2008-09 which would be reckonable for promotion only for future DPCs i.e. to DPC to be conducted after 13.4.2010.
c) Direct the respondent to communicate and consider the representation against below benchmark ACRs of period prior to 2008-09 which were reckonable for promotion in DPC of October 2008;
d) Quash the ACR of the Application for FY 2003-04;
e) Direct the respondent to hold a review of the DPC held in October, 2008;
f) Pass such further order and orders as it may deem fit and facts and circumstances of the case.
2. The brief facts of the applicants case are that on 4.11.1976 he was appointed as a Group A officer in the Central Excise & Customs Service. On 5.8.2002 he was posted as Commissioner of Central Excise (Appeals), Cochin. In November 2002 he was given additional charge of Commissioner of Central Excise (Appeals), Trivandrum. The Departmental Promotion Committee (DPC for short), which met in October 2008, considered the applicant and others for promotion to the grade of Chief Commissioner. The benchmark for promotion was Very Good in ACRs for five years preceding the year in which the DPC met for the purpose. The DPC kept its findings in respect of the applicant in a sealed cover because an enquiry initiated by the Vigilance Department was pending against him. On the basis of the recommendation of the DPC, the officers who were junior in rank to the applicant and some other officers were promoted.
2.1 The Department of Personnel & Training (respondent no.3) issued O.M.No.21011/1/2010-Estt.A, dated 13.4.2010 (Annexure A-1). It was, inter alia, stipulated in the said O.M. 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 gradings 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 was also stipulated that only below benchmark ACR for the period relevant to promotion need be sent and there is no need to send below benchmark ACRs of other years. In terms of the said O.M., the applicant was not communicated the ACR for the year 2003-04 whereas other officers were communicated the ACRs for past five years.
2.2 In response to the applications made by him in 2010, the applicant came to know in February and November 2011 that he was rated as Good by the Reporting Officer in the ACR for the year 2003-04. As the Reporting Officer made some adverse remarks and rated the applicant as Good, which was below the benchmark for promotion of the applicant to the post of Chief Commissioner, the applicant made a representation dated 21.12.2011 (Annexure A-4 colly.) to respondent no.2 against the adverse remarks and for upgradation of the grading in his ACR for the year 2003-04. In reply thereto, respondent no.1, vide letter dated 8.6.2012, informed the applicant that his ACR for the year 2003-04 and representation thereon is not covered under the provision of the DoP&Ts OM dated 13.4.2010, warranting consideration of representation on ACRs by the competent authority. It is stated by the applicant that all through his service career he was rated by the Reporting Officer in his ACRs as a Very Good or Excellent officer except in the ACR for the year 2003-04 and that the findings of the DPC in respect of him, which were kept in a sealed cover, cannot be said to be based on objective assessment of his suitability in as much as DPC had taken into consideration the adverse remarks and below benchmark grading Good in his ACR for the year 2003-04, against which the applicant had made representation but the respondents turned down the same solely going by the DoP&Ts O.M. dated 13.4.2010. It is submitted by the applicant that he was deprived of an opportunity to make representation to the competent authority against the adverse remarks and for upgradation of the grading given by the Reporting Officer in his ACR for the year 2003-04 and as a consequence, serious prejudice has been caused to him, more particularly when the said remarks were not reviewed by any Reviewing Officer.
2.3 In support of his right to make a representation against the below benchmark grading in his ACR for the year 2003-04, the applicant has relied upon the decision of the Honble Supreme Court in the case of Dev Dutt v. Union of India and others, (2008) 8 SCC 725. It has been contended by the applicant that the law declared by the Honble Supreme Court on 12.5.2008 in the case of Dev Dutt v. Union of India and others, (2008) 8 SCC 725, is binding on all courts and authorities. The O.M. dated 13.4.2010 (Annexure A-1) having been issued by the Department of Personnel & Training (respondent no.3) in complete disregard to the law laid down by the Honble Supreme Court in Dev Dutts case (supra), is bad and illegal. Consequently, the communication dated 8.6.2012 issued by the respondent nos. 1 and 2 on the basis of the DoPTs O.M. dated 13.4.2010, turning down his representation dated 21.12.2011 against the adverse remarks and for upgradation of the grading in his ACR for the year 2003-04 is bad and illegal. As the said DoP&Ts O.M. dated 13.4.2010 and communication dated 8.6.2012 deprived him of an opportunity to make representation for upgradation of the grading and against the adverse remarks in his A.C.R. for the year 2003-04 given by the Reporting Officer who had a bias towards the applicant.
3. The respondents have filed a counter reply resisting the claim of the applicant. It is stated by them that the system of communicating the remarks in the ACR/APAR was made applicable prospectively only with effect from reporting period 2008-09 initiated after 1st of April 2009 as per the provisions of the DoP&Ts O.M. dated 14.5.2009. As the DPC meeting was held in 2008, below benchmark ACR of 2003-04 was not required to be communicated to the applicant in terms of DoP&Ts O.M. dated 13.4.2010. They have admitted that the applicants ACR for the year 2003-04 was not reviewed by the Reviewing Officer, Shri P.R.V.Ramanan who had retired on 20.2.2004. They have also admitted that the applicants ACR for the year 2003-04 was placed before the DPC for considering his case for promotion to the post of Chief Commissioner. It is submitted by the respondents that in SLP (Civil) No.15770/2009, now converted to Civil Appeal No.2872 of 2010 (Union of India v. A.K.Goel and others), the Honble Supreme Court took note of the conflict between the decision in Dev Dutt v. Union of India on one hand and the judgments in Satya Narain Shukla v. UOI, 2006(9) SCC 69 and K.M.Mishra v. Central Bank of India and others, 2008(9) SCC 120 on the other hand and referred the appeal to a Larger Bench.
4. In the rejoinder reply to the respondents counter, the applicant has stated that the view taken by the Honble Supreme Court in Dev Dutts case(supra) has been upheld by a three-Judge Bench of the Honble Supreme Court vide judgment dated 23.4.2013 in Sukhdev Singh v. Union of India & ors, Civil Appeal No.5892 of 2006. It is also contended by the applicant that mere referral of a decision to a Larger Bench does not operate as a stay of the operation of the decision in Dev Dutts case(supra). It is also stated by the applicant that even if the Reviewing Officer Mr.R.P.V.Ramanan had retired on 20.2.2004, yet Member (L&J) and Chairman, CBDT, who were in active service at the material point of time, could have reviewed his ACR for the year 2003-04, and that since the said ACR was not reviewed, it lacked objectivity. It is also submitted by the applicant that the O.M. dated 14.5.2009 and other O.Ms. dated 8.2.2002 and 18.2.2002 have no bearing on his case because the decision in Dev Dutts case(supra) was rendered by the Honble Supreme Court on 12.5.2008 and when the DPC meeting was held in October 2008, the law down by the Honble Supreme Court was applicable to his case. The O.M. dated 14.5.2009 seeks to communicate only those ACRs for the period commencing from April 1,2009 onwards thereby diluting the position of law laid down in Dev Dutts case(supra).
5. No additional counter reply has been filed by the respondents to the applicants rejoinder.
6. I have perused the pleadings and heard Shri Amit Anand Tiwari, the learned counsel appearing for the applicant, and Shri Rajeev Kumar, the learned counsel for the respondents.
7. In Dev Dutts case (supra), a two-Judge Bench of the Honble Supreme Court held that every entry in the ACR of a public servant must be communicated to him/her within a reasonable period whether it is poor, fair, average, good or very good entry to achieve 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, 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.
8. In the case of Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146, a three-Judge Bench of the Honble Supreme Court, following Dev Dutts case (supra), held in paragraph 8 of the judgment as follows:
Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of remarks in the ACR of a public servant whether he is in civil, judicial, police or any other service(other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the remarks "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
9. In the case of Sukhdev Singh v. Union of India and others, Civil Appeal No. 5892 of 2006, another three-Judge Bench of the Honble Supreme Court, in paragraph 8 of the judgment, held that the view taken in Dev Dutts case (supra)is legally sound and observed, in paragraph 9, as follows:
The decisions of this Court in Satya Narain Shukla vs. Union of India and others, (2006) 9 SCC 69, and K.M.Mishra vs. Central Bank of India and others, (2008) 9 SCC 120 and other decisions of this Court taking a contrary view are declared to be not laying down a good law.
10. In view of the above decisions of the Honble Supreme Court in Dev Dutts case, Abhijit Ghosh Dastidars case, and Sukhdev Singhs case (supra), the provisions contained in DoP&Ts O.M. dated 14.5.2009 and O.M. dated 13.4.2010 with regard to the applicability of the system of communication of the remarks in the ACR/APAR to the concerned officers with effect from the reporting period 2008-09 to be initiated after 1.4.2009 and consideration of the representation against the remarks and for upgradation of the below benchmark grading in the ACR/APAR, cannot be held to be in accordance with the law laid down by the Honble Apex Court.
11. In support of the O.M. dated 13.4.2010 (Annexure A-1) and the decision dated 8.6.2012, impugned in the Original Application, the respondents have relied on an order dated 29.3.2009 passed by a two-Judge Bench of the Honble Supreme Court in SLP (Civil) No.15770/2009, converted to Appeal Civil No.2872 of 2010, Union of India v. A.K.Goel and others, wherein Their Lordships took note of the conflict between the decisions in Dev Dutts case on one hand and the judgments of the Honble Supreme Court in Satya Narain Shukla v. UOI, 2009(9) SCC 69 and K.M.Mishra v. Central Bank of India and others, 2008(9) SCC 120 and referred the appeal to Larger Bench.
12. During oral arguments, the learned counsel for the respondents also produced the DoP&Ts O.M. dated 27.4.2010, which reads thus:
OFFICE MEMORANDUM Subject:-ACRs with below benchmark grading considered in past DPCs-reg.
The undersigned is directed to state that this Department has issued O.M. of even number dated 13.04.2010 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 DPC 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. The representation is to be decided by the competent authority as per provisions in para 2 of aforesaid OM.
2. The Honble Supreme Court in their judgment dated 12.5.2008 in Civil Appeal No.7631 of 2002 (Dev Dutt vs. Union of India) had held that the good entry in the ACR of the appellant which had not been communicated to him and considered in a past DPC which found him unfit for promotion, should be communicated for representation and if upgradation is allowed by the competent authority, he should be considered for promotion retrospectively by the DPC. When the petitions in SLP (Civil) No.15770/2009, now converted to Appeal Civil No.2872 of 2010 (Union of India vs. A.K.Goel and others) were called for hearing, the Supreme Court has taken note of the apparent conflict between the decisions of the Honble Court in Dev Dutt case on one hand and the judgments of Supreme Court in Satya Narain Shukla Vs. UOI 2006(9) SCC 69 and K.M.Mishra vs. Central Bank of India & ors 2008(9) SCC 120 on the other hand and by their Order dated 29.03.2010, the Honble Court has referred these appeals to a Larger Bench (copy attached).
3. In the light of the Orders issued by Honble Supreme Court in the aforesaid SLP (Civil) No.15770/2009, Union of India Vs. A.K.Goel & ors, all Ministries/Departments are advised that wherever petitions have been filed in the Courts to grant relief on the basis of the aforesaid decision of the Supreme Court in Dev Dutt case, the latest orders of the Supreme Court in A.K.Goel case may be brought to the notice of the Court.
13. The applicant, on the other hand, submitted that the order dated 29.03.2010 passed by the Honble Supreme Court in SLP (Civil) No.15770/2009, converted to Appeal Civil No.2872 of 2010 (Union of India vs. A.K.Goel and others) making a reference to the Larger Bench did not alter the proposition already pronounced by the Division Bench in Dev Dutts case(supra) and that unless and until the same is overruled by the Larger Bench, the decision of the Division Bench remains the law laid down by the Honble Supreme Court binding on all courts and authorities.
14. In Commissioner of Customs, Calcutta, etc. etc. v. Indian Oil Corporation Ltd., the Honble Supreme Court held in paragraph 25 as follows:
..The law laid down by this Court will ensure uniformity in the decisions at all levels. By an express constitutional provision, the law declared by the Supreme Court is made binding on all the Courts within the territory of India (vide Article 141). Proprio vigore the law is binding on all the tribunals and authorities. ..
15. In Sajit Kumar, P. and others v. The Chief Commissioner of Income Tax and others, 2004(2) SLJ 61 (CAT), a Division Bench of this Tribunal observed in para 6 of the judgment as follows:
Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all Courts. Similarly under Article 144, all authorities civil and judicial in the territory of India, are required to act in aid of the Honble Supreme Court. As such, even if no O.M. is issued by the Nodal Ministry, the law declared by Honble Supreme Court becomes binding from the date on which such law is laid down and not from the date
16. As noted earlier, in the case of Sukhdev Singhs case (supra), a three-Judge Bench of the Honble Supreme Court, declared the view taken in Dev Dutts case (supra) to be legally sound and the decisions in Satya Narain Shuklas case and K.M.Mishras (supra) other decisions of this Court taking a contrary view are declared to be not laying down a good law. In view of this, the stand taken by the respondents in support of the DoP&Ts O.M. dated 13.4.2010(Annexure A-1) and the communication dated 8.6.2012, which are impugned in the O.A., is untenable.
17. Admittedly, in the case at hand, the D.P.C., which met in October 2008, considered the applicant and others for promotion to the grade of Chief Commissioner. The benchmark for promotion was Very Good in the ACRs for five years preceding the year in which the DPC met for the purpose. The applicant came to know in February and November 2011 that he was rated as Good by the Reporting Officer in the ACR for the year 2003-04. As the Reporting Officer made some adverse remarks and rated the applicant as Good, which was below the benchmark for promotion of the applicant to the post of Chief Commissioner, the applicant made a representation dated 21.12.2011 to respondent no.2 against the adverse remarks and for upgradation of the grading in the said ACR. Respondent no.1, vide letter dated 8.6.2012, instead of considering the applicants representation and taking a decision on merits, refused to entertain the same on the basis of the DoP&Ts O.M. dated 13.4.2010. The DPC had taken into consideration the adverse remarks and below benchmark grading Good in his ACR for the year 2003-04. As per the law settled by the Honble Supreme Court, the applicant made the representation against the adverse remarks and for upgradation of the grading Good in the ACR for the year 2003-04. The respondents refusal to consider and decide the same on merits has caused prejudice to the applicant.
18. In the light of the above discussions, I hold that the respondent nos.1 and 2 were not justified in refusing to entertain and decide the applicants representation dated 21.12.2011 made against the adverse remarks and for upgradation of the below benchmark grading in his ACR for the year 2003-04. As a consequence, the impugned order dated 8.6.2012 is quashed, and respondent nos. 1 and 2 are directed to consider the applicants representation dated 21.12.2011 (ibid) and take a decision thereon by passing a speaking and reasoned order within a period of three months from the date of receipt of copy of this order.
19. In the result, the Original Application is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBMER AN