Central Administrative Tribunal - Delhi
Balvinder Singh vs Union Of India Through on 26 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 253/2009 New Delhi this the 26th day of March, 2010. Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Balvinder Singh, S/o Late Shri Lal Singh, Aged about 52 years, Finance & Audit Advisor, Ministry of Oil & Gas, P.O. Box No. 551, PC 113, Muscat, Sultanate of Oman R/o House No. 67, Sector-69, Mohali, Punjab. Applicant ( By Advocate Shri A.K. Behera ) VERSUS Union of India through: The Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi-110 002. Respondent (By Advocate Shri Gaurang Kanth ) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The Applicant, an officer of the Senior Administrative Grade (SAG) in the Indian Audit and Accounts Service (IA&AS), who is on foreign assignment, received an unpleasant shock on 14.10.2008, when a copy of the Civil List of Group A officers of his service, as on 1.08.2008, reached his place of work at the Sultanate of Oman, and he found to his consternation that the names of officers junior to him in the service were shown in the grade of the Principal Accountant General (PAG), which is above the SAG, whereas his name continued to be in the list of officers in SAG. The Applicant sent an e-mail to the Comptroller and Auditor General of India (C&AG) on 20.10.2008 stating therein that he had been superseded although he had never been communicated adverse remarks in any Annual Confidential Report (ACR), which could lead to his being overlooked for promotion whilst his juniors had been promoted. He pointed out that during the period for which his ACRs were considered by the Departmental promotion Committee (DPC), he had received letters of appreciation from various quarters. These are placed at Annex A-4 (Colly.). He received a reply to his representation on 22.10.2008 (Annex A-1), which stated that the DPC had adopted the criteria of the prescribed benchmark of Very Good grading in the ACRs of all the five years, which were considered by the DPC and that he was found wanting in that. The reply also stated that there were no adverse remarks in his ACR and, therefore, nothing was communicated to him.
2. We have perused the ACR dossier of the Applicant, which the Respondents produced on our direction. The ACR gradings are reproduced below:
Year Grading S.No. Reporting Officer Reviewing Officer 1. 2. 3. 4. 5. 6. 7. 8. 2006-07 2005-06 2004-05 2003-04 2002-03 1.04.02 to 31.10.02 1.11.02 to 31.03.03 2001-02 31.05.01 to 30.11.01 1.12.01 to 31.03.02 2000-01 1999-2000 1998-99 1997-98 ACRs not recorded as the officer was on foreign assignment. Good Very Good Very Good No ACR recorded as the Applicant did not work under any Reporting Officer for three months Good Very Good Very Good Very Good Very Good Good Very Good Very Good - Very Good Very Good Very Good Very Good
3. The DPC considered the five ACRs of the Applicant from 1999-2000 to 2003-04 since his ACRs for the three Financial Years (FYs) from 2004-05 to 2006-07 had not been recorded. The DPC prepared the panel for the FY 2008-09.
4. The threefold pleas of the Applicant are that:
(i) Grading Good, in the context of the prescribed benchmark of Very Good is an adverse grading, which ought to have been communicated to the Applicant and the DPC ought not to have considered an uncommunicated ACR;
(ii) The ACR of the FY 2001-02, which was recorded only for the period from 1.12.2001 to 31.03.2002 should not have been considered by the DPC as it has not been reviewed and an un-reviewed ACR is an incomplete ACR; and
(iii) the ACRs of the FY 2003-04 and 2001-02 should have been ignored because:
(a) the Reporting as well as the Reviewing Officers for both the periods had retired; and
(b) the ACRs pertained to a period three years prior to DPC and contained uncommunicated adverse gradings.
5. The above mentioned arguments are squarely covered by the various judicial pronouncements. In OA number 24/2007, decided on 20.11.2008 by a coordinate Bench of this Tribunal, following the decision by the Full Bench of this Tribunal in the same OA that below benchmark grading should be communicated to the officer reported upon, the DB considered the issue regarding the consideration of the grading given by the Reporting Officer in an ACR, which had not been reviewed. The DB, while holding that an un-reviewed ACR is an incomplete ACR and should not be considered by the DPC, observed thus:
4. In so far the second issue regarding an ACR being incomplete without being reviewed and in such circumstances it not being advisable for the DPC to consider such ACR is concerned, the matter has been considered by the Ahmedabad Bench of this Tribunal in Shri A.P. Srivastava Vs. Union of India and others, OA No.673/2004 decided on 9.01.2007. The aforesaid learned Bench has taken into consideration the ratio laid down by the Honourable Supreme Court in State Bank of India Vs. Kashi Nath Kher, AIR 1996 SC 1328, which is reproduced below :
15. It would appear that the confidential reports and character rolls are being prepared by the officers of the same rank in the same MMGS-II working in the establishment department over the same cadre officers working elsewhere and the reporting officers are the same. Ms. Nisha is right and the High Court is well justified in holding that such a procedure is violative of the principles of natural justice. Such procedure and practice is obviously pernicious and pregnant with prejudices and manipulative violating the principles of natural justice and highly unfair. The object of writing confidential report is two fold, i. e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This Court in Delhi Transport Corporation's case (AIR 1991 SC 101) pointed out pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectively, impartially and fair assessment without any prejudices whatsoever with highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by superior officer of high rank, who are such high rank officers is for the appellant to decide. The appellants have to prescribe the officer competent to write the confidentials. There should be another higher officer in rank above the officer who has written confidential report to review such report. The appointing authority or any equivalent officer would be competent to approve the confidential reports or character rolls. This procedure would be fair and reasonable. The reports thus written would form basis for consideration for promotion. The procedure presently adopted is clearly illegal, unfair and unjust. (emphasis added) The Ahmedabad Bench thereafter has held thus :
12. We are accordingly of the view that the ACR is required to be recorded at two levels and in case one of the levels is not available then the said ACR can not be treated as complete. In the instant case there is an additional factor referred to above. (emphasis added)
13. We are accordingly of the view that the ACR of applicant for the year 2002-03 is not complete and hence can not be considered for promotion to the next higher rank. The Honourable Supreme Court in Dev Dutt Vs. Union of India and Others, JT 2008 (7) SC 463 laid down the law that any grading below the prescribed benchmark grading, shall be considered an adverse grading. This was followed by the judgment of the Honourable Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India and Others, Civil Appeal number 6227/2008, decided on 22.10.2008, in which a Bench comprising three learned Judges held that good entries given to the appellant should not at all have been taken into consideration. Following the judgments in the aforementioned judicial precedents that a below benchmark grading is an adverse grading, this Tribunal held thus in OA number 1178/2009, O.P. Meena Vs. the Secretary, Department of Revenue and Others that below benchmark grading, (i) which is three year prior to the year of DPCs meeting and also (ii) if the Reporting and Reviewing Officers have retired (in any one of such eventualities), should be ignored by the DPC. The relevant part of the order is extracted below:
The DOP&Ts Office Memorandum adverted to above is also reproduced below:
12.1: Where the DPC find that the adverse remarks in the confidential Report of an officer have not been communicated to him but the adverse remarks are of sufficient gravity to influence their assessment of the officer concerned, then the Committee shall defer consideration of the case of the officer, provided these remarks have been recorded in any of the CRs pertaining to three years immediately preceding years prior to the year in which DPC is held and direct the cadre controlling authority to communicate the adverse remarks to the officer concerned so that he may have an opportunity to make a representation against the same. Where the un-communicated adverse remarks pertain to a period earlier than the above or where the remarks are not considered of sufficient gravity to influence the assessment of the officer concerned, the DPC may ignore the remarks while making the assessment. (emphasis added).
[Source: Swamys Complete Manual on Establishment and Administration, Tenth Edition, 2006, pages 283-284].
4. It has been conceded by the respondents that the two Good gradings for the years 2003-04 and 2002-03 have not been communicated to the Applicant. These gradings, being below benchmark, would be considered as adverse remarks, which ought to have been communicated. In view of the instructions contained in the OM number 22011/3/88-Estt. (D), dated 11.05.1990, as quoted above, and also in view of the fact that the Reviewing Officers, for the period, for which the adverse remarks have been recorded, have retired from service, these remarks have to be ignored by the DPC.
6. The Respondents, per contra, have opposed the cause of the Applicant on the following two grounds:
(i) The judgments in Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra) would not apply retrospectively as the instructions for conveying the below benchmark gradings have been issued only on 14.05.2009 by the Department of Personnel and Training (DOP&T). A copy of the Office Memorandum dated 14.05.2009 was produced before us by the learned counsel for the Respondents. This Tribunal had earlier considered this argument in OA number 586/2009, Krishna Mohan Dixit Vs. DOP&T and others and rejected it thus:
We are unable to accept this argument also for the reason that the above cited OM of 14.5.2009 is in respect of a new system of appraising the performance of an officer. The ACR has now been replaced by Annual Performance Appraisal Report (APAR). In this system, the APAR has to be communicated, in toto, to the officer appraised, irrespective of the tone and tenor of the remarks and the concerned officer would make a representation if there is anything adverse in the APAR. The system has become applicable prospectively from 1.04.2009. This OM is irrelevant as far as communication of adverse remarks in ACRs is concerned, which would continue to be governed by the OM dated 11.05.1990, reproduced in paragraph 9 above.
(ii) That the judgment of Honourable Delhi High Court in A.K. Goel Vs. Union of India and Ors., WP ( C ) number 18706/2005 decided on 18.07.2008 has been stayed by the Honourable Supreme Court on 9.07.2009. The Honourable Delhi High Court had considered the judgment in Dev Dutt (supra) and the following extracts from that judgment ( Dev Dutt ) were quoted:
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential report of a public servant, whether in civil, judicial, police or any other State service ( except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance is possible.
The Honourable Delhi High Court was considering the order of the Allahabad Bench of this Tribunal in OA number 587/1997 filed by Sh. A.K. Goel, who had been overlooked for promotion to the post of Superintending Engineer because of Good grading in his ACR, which was below the benchmark of Very Good. The learned Allahabad Bench held thus:
In the facts and circumstances and our aforesaid discussions, the O.A. is allowed. Since the latest assessment about the applicant, as depicted in Annexures RA-1-5 to the rejoinder affidavit for seven relevant years, contains two outstanding and five very good grades, there is no justification in denying promotion to the applicant, when it was granted to his next junior w.e.f. 31.12.1985. This is a mistake of law coupled with the mistake of fact, which is ordered to be rectified. The office order No. 359 of 1994 dated Nov. 25, 1994 may be modified to the extent that the applicant be placed below Mohan Swaroop (Sl.No.13) and above J.B.Fadia (Sl.No.14) with consequential benefits including non-functional selection grade from the date 31.12.1992, his junior was given. However, the applicant shall not be entitled for any back wages. This order should be implemented before the next promotion of Chief Engineers (Electrical) takes place in which the applicant may also be considered with his modified/latest ACRs and seniority.
Two other persons, who were the respondents in A.K.Goel (supra), filed a Review Application number 61/2004 before the Allahabad Bench on the ground that they were affected by the order of the Tribunal and they were not parties in the OA number 587/1997. The RA was rejected. The aforesaid respondents filed an OA before the Principal Bench of this Tribunal in OA number 2618/2004, contending that it was not necessary to communicate the grading Good. The OA was allowed by order dated 26.05.2005 on the reasoning that the decision of the Allahabad Bench was per incuriam of the decision of the Full Bench of this Tribunal in Dr. A.K. Dawar V. Union of India, OA number 555/2001. The Honourable Delhi High Court was considering the order of the Principal Bench in OA number 2618/2004. It held thus:
The judgment of the Allahabad Bench is in tune with the aforesaid view in Dev Dutt (supra) taken by the Supreme Court. As a result the impugned judgment dated 26.5.2005 of the Principal Bench, Delhi is to be set aside.
On the basis of the stay granted by the Honourable Supreme Court, as mentioned above, the learned counsel for the Respondents would contend that the Honourable Supreme Court is likely to revisit Dev Dutt (supra). We think this is a statement made in haste. First, it is not possible to infer merely from the stay of the High Courts judgment in A.K. Goel (supra) that there is likely to be reconsideration of Dev Dutt (supra). Second, we notice an obvious flaw in the order of the Allahabad Bench of this Tribunal, which has been quoted above. The infirmity, which immediately strikes us is that the learned Bench has directed modification of the order by which the orders of promotion were issued and promoted Sh.A.K. Goel (the applicant before the Allahabad Bench) by this order. This runs counter to the judgment of Honourable Supreme Court in Union of India and Another Vs. Samar Singh and Others, 1996 SCC (L&S) 1443, in which it was held that the Tribunal would not decide the gradings in the ACRs and not direct that the applicant before should be promoted. Such consideration was exclusively in the domain of the DPC, to which the Tribunal should remit the case for reconsideration. Be that as it may, we shall not try to guess the reasons for stay, but it would be sufficient to observe that Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra) govern the field at the moment and we shall follow these judgments.
7. The OA succeeds on the basis of the above consideration. We direct that a review DPC shall be convened by the Respondent within three months from the date of receipt of a certified copy of this order and the said DPC shall not consider the ACRs of the FY 2003-04 and 2001-02. It shall instead consider the ACRs of the years 1998-99 and 1997-98. Should the Applicant be found fit by the DPC, he would be promoted from the date his immediate junior was promoted, on notional basis. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman sk