Central Administrative Tribunal - Patna
Harbansh Singh vs Railway on 21 September, 2022
-1- OA/050/00332/2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00332/2011
MA/050/00371/2016
Reserved on: 26.07.2022
Pronounced on: 21.09.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
(Dr.) Harbansh Singh, son of Late Keshi Singh, resident of Mo Mohalla--
Bellmore, near State Bank of India, PO & PS - Obra, District- Aurangabad--
824124.
.... Applicant.
By Advocate: - Shri Gautam Saha
-Versus
Versus-
1. The Union of India through the Secretary Cum DG, Department of
Posts, Dak Bhawan, New Delhi- 110001.
2. The Chief Postmaster General, Bihar Circle, Patna-
Patna 800001.
3. The Director of Postal Services (HQ), O/o the Chief Postmaster
General, Bihar Circle, Patna- 800001.
001.
4. The Sr. Superintendent of Post Offices, Patna Division, Patna-
Patna-
800004.
.... Respondents.
By Advocate(s): - Shri H.P. Singh
Shri Deepak Kumar
ORDER
Per S.K. Sinha, A.M A.M: Instant OA was earlier heard and disposed of by this Tribunal vide order dated 24.11.2015 directing the respondents to grant notional promotion to the applicant to Selection Grade w.e.f. 25.06.20 25.06.2002 2 and Senior Administrative Grade Grade w.e.f. 25.06.2009, the dates on which whi his juniors were given the promotion promotions and to re-fix fix his pension accordingly within a period of
-2- OA/050/00332/2011 four months from the date of order. The respondents challenged the Tribunal's order on the file of Hon'ble Patna High Court in CWJC No. 17255 of 2016 2016. Hon'ble High Court on 03.09.2020 set aside the order passed by the Tribunal and remanded the case to the Tribunal to consider the matter afresh and pass an order in accordance with law after hearing both the parties. Accordingly, the matter came before the Tribun Tribunal and was heard afresh.
2. Background facts of this case are that the applicant was appointed as Assistant Medical Officer on ad hoc basis in North East Frontier Railway on 29.01.1979 and posted at New Jalpaiguri, alpaiguri, Hospital Hospital. In year 1986 and 1987, several Assistant Medical Officers and Assistant Divisional Medical Officers appointed on ad hoc basis filed a series of writ p petitions etitions before Hon'ble Apex Court for regularization of their services. Hon'ble Supreme Court passed order on 24.09.1987 (Annexure 5) directing that the services of all doctors appointed as Assistant Medical Officer or Assistant Divisio Divisional nal Medical Officer on ad hoc basis be regularized in consultation with UPSC and the doctors so regularized be appointed as Assistant Divisional Medical O Officer fficer from the date they have been continuously working as Assistant Medical Officers or Assistant Divisional Medical Officers. Accordingly, the applicantwas was offered appointment as Assistant Divisional Medical Officer Group 'A' (Annexure-7) vide communica communication dated 27.03.1989 and was finally appointed as
-3- OA/050/00332/2011 ADMO (Group-A') with effect from 29.01.1979 vide order dated 05.12.1989 (Annexure (Annexure-8).
2.1 A departmental proceeding was initiated against the applicant vide charge memo issued on 26.01.1994 26.01.1994. The applicant nt agitated the matter before the Calcutta Bench of the Tribunal and he was finally exonerated from the charges vide order dated 18.05.2006. During pendency of the departmental proceeding, applicant was considered for promotion to the post of Senior Scale of Divisional Medical officer on 23.08.1994 and decision of the DPC was kept in sealed cover. After exoneration from the charges, he was granted promotio promotions retrospectively to the post of Divisional Medical Officer (DMO) i.e. Senior Scale of IRMS (Indian Railway Medical Service) with effect from 30.08.1994 vide order dated 03.07.2006 and to the post of Senior DMO i.e. Junior Administrative Grade (JAG) of IRMS with effect from 17.03.1999 vide order dated 06.03.2007. The case of applicant for further promotion to Selection Grade of Divisional Medical Officer was considered by the DPC held on 25.06.2002, 07.03.2003, 29.04.2004, 29.09.2005, 08.08.2006 and 18.07.2007, but the applicant was found unfit for promotion in view of poor performance reflected through ACR. The applicant was finally found fit for promotion to the Selection Grade by DPC in 2008 and he was given tthe he promotion w.e.f. 24.01.2008.
24.01.2008 The applicant retired from service on 31.03.2010.
-4- OA/050/00332/2011
3. After retirement, the applicant approached the Tribunal with the instant OA (No. 332 of 2011) praying for grant of Selection Grade of Senior Divisional Medical Officer from the date of his entitlement or w.e.f. 25.06.2002 the date on which his juniors got the same promotion and also for grant of Senor Administrative Grade of Sr. Divisional Medical Officer from the date of his entitlement or w.e.f. 25.06.2009 the date on which his juniors got the promotion.
promoti
4. The applicant's contention was that he had been exonerated of the charges in departmental proceeding and so he was entitled for promotion to the post of Selection Grade of Sr. Divisional Medical Officer w.e.f. 25.06.2002 when his juniors were promoted to that post. The below benchmark ACRs ACRs,, on the basis of which Selection Grade was denied to him during 2002 2002-2007 2007 were not communicated to him and he got no opportunity to represent against them. Applicant has claimed that law in this regard has been b well settled through various decisions of Court/Tribunal that un-communicated communicated Annual Confidential Reports (ACRs), which are adverse to the appellant, cannot be relied upon for the purpose of consideration of any person for promotion. Hence, the denial of his promotion was illegal and arbitrary. The applicant has contended that he was further entitled for grant of Senior Administrative Grade of IRMS w.e.f. 25.06.2009, the date his juniors were promoted to SAG.
-5- OA/050/00332/2011 Respondents' action in denying him promotion despite his legal entitlement was illegal, arbitrary and discriminatory.
5. Respondents contested the OA and maintained in WS that the applicant was considered for promotion to Selection Grade by the DPC held in 2003, 2004, 2005, 2006 and 2007 but was not selected on the basis of his performance. He was subsequently found fit in the DPC held in 2008 and was granted the Selection Grade w.e.f. 24.01.2008. As per the Recruitment Rules of IRMS,, there is a residency period requirement of seven years in Selection Grade for promotion to Sr. Administrative Grade. As the applicant was promoted to Selection Grade with effect from 24.01.2008 the residency period of 7 years would complete on 24.01.2015. The applicant retired on 31.03.2010 and therefore he could uld not be granted promotion to SAG.
6. The Tribunal in its earlier order on 24.11.2015 held that the respondents ha had not enclosed the minutes of the DPC meetings held in 2003, 2004, 2005, 2006 and 2007 in which the applicant was not found fit on the basis asis of his below benchmark performance. The Tribunal concluded that most ost likely it was the pendency of departmental proceeding for major penalty charges which caused the denial of selection grade to the applicant on the due date and directedthe respondent respondentss to grant notional promotion to the applicant to Selection Grade w.e.f. 25.06.2002 and Senior
-6- OA/050/00332/2011 Administrative Grade w.e.f. 25.06.2009 and to re-fix fix his pension accordingly.
7. The respondents challenged the Tribunal's order before Hon'ble Patna High Court and Hon'ble High Court held that the Tribunal had overlooked the fact that denial of promotion to applicant was not due to pendency of any departmental proceeding but on account of not being found fit for promotion due to below benchmar benchmarkk performance. Hon'ble High Court observed that the order passed by the Tribunal on 24.11.2015 was neither sustainable in law nor on fact fact. Hon'ble High Court accordingly set aside the order and remanded the case to Tribunal for fresh consideration.
8. During the fresh hearing, Shri G. Saha Sah represented presented the applicant and Shri H.P. Singh, Sr. Standing Counsel assisted by Shri Deepak Kumar represented the respondents.
9. Shri Gautam Saha, Ld. counsel for applicant raised the issue of denial of Selection Grade to the applicant in the DPCs held in 2003, 2004, 2005, 2006 and 2007 in which he was found unfit because of below benchmark ACRs ACRs.. Learned counsel submitted that these ACRs were never communicated to the applica applicant and thus he was not given opportunity to represent against the below benchmark overall grading. This was against the principle of natural justice and also the law settled by the Hon'ble Supreme Court Court. L/C further drew attention to the Dynamic Assured C Career areer Progression (DACP) for
-7- OA/050/00332/2011 officers of the IRMS issued on 07.01.2009 (Annexure B) and submitted that as per the DACP scheme the eligibility condition for promotion from Selection Grade (GP 8700) to Senior Administrative Grade (GP 10,000) is "seven years in Grade Pay of Rs.
Rs 8700 in PB-4 4 including service rendered in the pre pre-revised scale of Rs 14300--
18300 or 20 years of regular service." The applicant's appointment to IRMS (Group 'A') was granted with effect from 29.01.1979 hence , he had completed mor more e than thirty years of service on the day his juniors were elevated to SAG. Hence, he was eligible for promotion to SAG in terms of the DACP scheme e from the date his juniors were granted that Grade. L/C for applicant put reliance on the judgement of Hon' Hon'ble Supreme Court in Prabhu Dayal Khandelwal Vs. UPSC & Otherss [ (2015) 14 SCC 427] in support of his case
10. Senior Standing Counsel Shri H. P. Singh appearing on behalf of respondents submitted that after exonerati exoneration from the charges applicant was given promotion with retrospective effect to Senior Scale and JAG in due time. The applicant's case for grant of Selection Grade was considered by DPC in 2003, 2004, 2005, 2006 and 2007 but he was not found fit because of his poor performance performance reflected through the ACRs. The applicant had ACR grading as 'Average' for the period 2001 2001-2002 2002 which was below benchmark and as five years years' ACRs immediately preceding the year of DPC are considered to decide the fitness, the applicant was found unfit for
-8- OA/050/00332/2011 promotion in these DPCs. He was found fit only in year 2008 and was granted Selection Grade w.e.f. 24.01.2008. The eligibility condition under the DACP scheme for further promotion to Senior Administrative Grade (SAG) re required quired seven years of service in Selection Grade (GP 8700) but the officer retired in 2010 before completing the required residency period period.
10.1 To a specific query regarding the condition of "20 years of regular service" whether it connoted the length of regular service in the entire career Ld. SSC conveyed it meant 20 years from the date of issue of the scheme i.e. 07.01.2009. Ld. Ld SSC also stated that the applicant had overall grading in the ACR for year 2005-06 2005 as 'Good' which was below benchmark for promotion to Senior Administrative Grade (SAG) and for that reason also applicant cannot be granted promotion to SAG.
11. Applicant pplicant has shared the grading of his ACRsfor for the period from 01.04.1996 to 31.03.2006 obtained under RTI (page 15 of the Rejoinder) and is given as below.
1996 - 1997 Very Good 1997 - 1998 Very Good 1998 - 1999 Good 1999 - 2000 Good 2000 - 2001 Good 2001 - 2002Average 2002 - 2003 Very Good 2003 - 2004 Good 2004 - 2005 Very Good 2005 - 2006 Good
12. In Dev Dutt vs. Union of India &Ors. [(2008) 8 SCC 725 ]aa two Judge Bench of Hon'ble Apex Court held that fairness in public
-9- OA/050/00332/2011 administration and transparency require that all entries in the Annual Confidential nfidential Reports of a publi publicc servant must be communicated within a reasonable period in order to enable the employee to make a representation for upgradation. The view of the Court was that non-communication communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. A failure to communicate would be arbit arbitrary.
rary. The Court held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities rumentalities of the State, in addition to government servants.
13. A Three Judge Bench of Hon'ble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India & Ors. [(2009) 16 SCC 146] re-- affirming the judgement of Hon'ble Apex Court in Dev Dutt Vs. Union of India (supra) held as under.
"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-
non-
communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication non communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above e referred decision relied on by the appellant. Therefore, the entries "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
-10- OA/050/00332/2011 appellant had ever been informed of the nature of the grading given to him."
14. A three Judge Bench of Hon'ble Supreme Court in Sukhdev Singh vs. Union of India &Ors.
&Ors.[[ (2013) 9 SCC 566] affirmed the view in Dev Dutt case (supra). The three Judge Bench Bench in Sukhdev Singh (supra), held as under.
"8. In our opinion, the view taken in Dev Dutt that every entry in 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, 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 emarks 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."
15. Pursuant to the judgement of Hon'ble Supreme Court in Dev Dutt Vs. Union of India (Civil Appeal No. 7631 of 2002), the DoPT issued an OM on 14.05.2009 to all Ministries and Departments of Government of India directing that full APAR, including the overall grading and assessment of integrity shall be communicated to the concerned officer. The new system of communicating entries in the APAR was made applicable prospectively w.e.f 2009.
16. The issue for adjudication in this OA is three-fold three as under:-
(a) Whether the decision of the DPC held in 2003, 2004, 2005, 2006 and 2007, not recommending the case of applicant for
-11- OA/050/00332/2011 promotion to Selection Grade, Grade, without sharing the below benchmark grading , was in accordance with the law prevailing at that time.
(b) Whether the decision of Hon'ble Supreme Court in the case of Dev Dutt (supra) and the subsequent OM issued by DoPT on 14.05.2009 provided scope for retrospective implementation.
(c) The applicantt did not challenge the denial of promotion to Selection Grade given to his juniors w.e.f. 25.06.2002 and SAG given to his juniors w.e.f. 25.06.2009 before the Tribunal till his retirement. Whether the applicant's conduct was not covered by laches and acquiescence quiescence.
17. Prior to the Supreme Court order in Dev Dutt Vs. UOI (supra) and the DOPT OM dated 14.05.2009 (supra) the prevailing instructions/rules required that overall grading given in the ACR should not be communicated even when the grading given is below the bench mark prescribed for promotion to the next higher grade. The instructions/orders required communicating only adverse entries/remarks recorded in the ACR of officials. Even the Supreme Court orders confined their directions to communicat communicating ing only the adverse entries in the ACRs. Hon'ble Supreme Court in Union of India & Ors. Vs. E.G. Nambudiri Nambudiri[[ (1991) 3 SCC 38] held that the "principle of natural justice requires that an adverse entry made in
-12- OA/050/00332/2011 the character roll must be communicated to tthe he government servant to enable him to improve his work and conduct and also to explain the circumstances leading to the report".
18. The DoPT OM issued vide No. 21011/1/2006-Estt. (A) dated 28.03.2006 on the subject "Communication of Adverse entries/rem entries/remarks arks recorded in the ACR" is reproduced as under:-
under:
"Subject: Communication of adverse entries/remarks recorded in the ACR.
The undersigned is directed to state that in accordance with the existing instructions of this Department, adverse entries/remarks recorded in the ACR of the official have to be communicated to him for further improvement in his performance and the official official concerned has also an option to make a representation against the adverse remarks within the prescribed time limit. According to the existing instructions, the overall grading given in the ACR should however, not be communicated even when the grading given given is below the bench mark prescribed for promotion to the next higher grade. The overall grading recorded in the ACR has also not to be changed in any way even after the expunction of the adverse remarks either fully or partially by the competent authority. The Hon'ble Supreme Court has declared in its judgement, dated 22.11.2005 in UOI and Anr. Vs. Major Bahadur Singh (Civil Appeal No. 4482 of 2003) that the judgement of the court, dated 31.1.1996 in UP Jal Nigam and Ors.Vs.Prabhat Chandra Jain and Ors. SLP SLP (Civil) No.16988/95 has no universal application and the judgement itself shows that it was intended to be meant only for the employees of UP Jal Nigam. All Ministries/departments are accordingly requested to ensure that any challenge to the existing instructions instructions of this Department in regard to the communication of adverse remarks in any court taking shelter in the Supreme Court judgement in UP Jal Nigam or any other judgement based on UP Jal Nigam judgement is properly defended keeping in view the above declaration of the Supreme Court in UOI vs. Major Bahadur Singh."
(Emphasis intended)
-13- OA/050/00332/2011
19. Evidently, the law prevailing prior to the case of Dev Dutt required sharing only the adverse entries in the ACR with the concerned officers officers. In fact, there were ere instructions not to share the overall grading of ACRs even if it was below the benchmark required for next promotion. The applicant's promotion to Selection Grade was denied by DPC in year 2003, 2004, 2005, 2006 and 2007 on account of the overall gra grading ding in 2001-02 2001 02 as 'Average'. As the prevailing instructions prevented sharing of overall grading with the concerned officer there was no legal lacuna in the decision of DPC in not recommending him for promotion.
20. Regarding the issue whether the judgement judgement of Hon'ble Supreme Court in the case of Dev Dutt (supra) and the consequent DoPT OM dated 14.05.2009 had scope for retrospective implementation, we find clarification in subsequent DoPT OMs.
21. The DoPT circulated further clarification vide OM No. 21011/1/2010 21011/1/2010-Estt.A Estt.A dated 13.04.2010 to all Ministries/Departments of Govt. of India that if an employee is to be considered for promotion in a future DPC and if his ACRs prior to the period 2008 2008-09 09 relevant fo forr assessment of his fitness in such future DPCs contained below the benchmark grading for next promotion, the concerned employee will be given a copy of the relevant ACRs to submit his representation. It was clearly stated therein that only below benchmark ACRs for the period relevant to promotion need be given
-14- OA/050/00332/2011 to the officer reported upon and there is no need to send below benchmark of ACRs of other years.
22. Subsequent to the above direction/decision, the DoPT issued another OM vide No. 43012/1/2015 43012/1/2015-Estt. (A-II) II) on 21.04.2020 regarding disclosure of below benchmark ACRs of the period prior to 2008-09 09 in view of requests for disclosures of ACRs which were considered for promotions by DPCs prior to 2008 2008-09. Para-4 4 of the DoPT OM dated 21.04.2020 is reprodu reproduced hereunder:-
" 4. The matter has been considered in this Department and it is felt that acceding to the request of disclosure of below benchmark gradings in ACRs for the period prior to 2008-09 09 will open flood gates and a large number of employees, both serving and retired, may come up with a request for disclosure of their ACRs of old periods, resulting into administrative difficulties and chaos. It is, therefore, therefore, reiterated that only such below benchmark ACRs prior to the reporting period 2008-092008 09 need to be disclosed to the officer reported upon for his representation, as are reckonable for assessment of fitness in future DPCs. In other words, below benchmark mark grading in the ACRs for the period prior to 2008-09 2008 09 need not be disclosed to the officer reported upon, if the same are not reckonable for future DPCs."
23. It emerges from the aforesaid Supreme Court judgements in the cases of Dev Dutt (supra), Abhijit ijit Ghosh Dastidar (supra) and Sukhdev Singh (supra) and DoPT OMs that the APARs written after 2008-09 09 have to be communicated in full to the concerned officers. Once an APAR is communicated there is no need to communicate below benchmark grading separate separately.
ly. A Government official cannot be denied of promotion on the basis of un un-communicated communicated ACRs/APARs. However, below benchmark ACRs for the period prior
-15- OA/050/00332/2011 to 2008 2008-09 09 need to be disclosed to the officer reported upon for his representation only for assessment of fitness in future DPCs. Below benchmark grading in the ACRs for the period prior to 2008 2008-09 09 need not be disclosed to the officers reported upon if the same are not reckonable for future DPCs.
24. It is evident that the order of Hon'ble Supreme Court and the DoPT OM dated 14.05.2009 had no retrospective implementation. Rather, the DoPT OM dated 21.04.2020 clarified unambiguously that below benchmark ACRs for the period prior to 2008 2008-09 09 were to be disclosed isclosed for the purpose of submitting representation only for assessment of fitness in future DPCs. Below benchmark grading in the ACRs for the period 2008 2008-09 09 need not be disclosed if the same are not reckonable for future DPCs. The applicant has not chal challenged lenged the DoPT OM dated 13.04.2010 and 21.04.2020 clarifying that there can be no retrospective implementation of the Hon'ble Supreme Court order in the case of Dev Dutt. Hence, the decision of Hon'ble Supreme Court in Prabhu Dayal Khandelwal Vs. UPSC & Ors.
rs. [(2015) 14 SCC 427] does not render any help to the applicant in this case.
25. The he applicant retired on 31.03.2010. He had not completed the residency period of 7 years in Selection Grade when the DPC considered the case of his juniors for grant of Senior Administrative Grade in 2009. There is no clarity about the th '20 years of regular service condition'; whether this means 20 years of service in IRMS
-16- OA/050/00332/2011 (Group 'A'); whether it can have retrospective applicability; or whether it dispenses with the requirement of DPC. Also, the applicant had below benchmark grading in his ACR for 2005 2005-06.
26. The applicant was granted Selection Grade in 2008, 2008 whereas his juniors uniors had been granted the Grade in year 2002 itself. Further, the juniors to the applicant were promoted to the Sr. Administrative Grade in 2009. The applicant had been exonerated of the charges in the departmental proceeding in 2006. He was given promotion ion to Senior Scale and Junior Administrative Grade retrospectively after the exoneration from charges. He approached the Tribunal only in 2011,, after his retirement. He could have challenged the denial of Selection Grade after exoneration from the charg charges es in the departmental proceeding and grant of Junior Administrative Grade retrospectively in 2007. This clearly reflects laches and acquiescence on the part of applicant.
27. It is clear from above discussions that prevailing prevailing instructions/guidelines at the relevant time in this case (prior to 2009) required that overall grading should not be communicated to the affected officer even if it was below benchmark for his next promotion. The law settled by Hon'ble Supreme C Court ourt relating denial of promotion on the basis of un un-communicated communicated below benchmark ACR grading could not have retrospective effect. Hence, we are of
-17- OA/050/00332/2011 the view that the denial of grant of Selection Grade to the applicant between 2003 and 2007 was as per the p prevailing rules/law.
28. In view of the facts and legal aspects discussed above, we are of the view that the grant of Selection Grade to the applicant in 2008 was in accordance with the rules/law prevailing at that time. Also, the applicant did not meet th the e eligibility for grant of Senior Administrative Grade on any date prior to his retirement. The applicant's prayers in the OA are thus devoid of merit. We hold that in the interest of justice this OA deserves to be dismissed. Ordered accordingly. MAs, if aany, ny, also stand disposed of. No cost.
[ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.