Central Administrative Tribunal - Allahabad
Ram Babu S/O Sri Satya Prakash vs Union Of India Through Secretary on 20 May, 2011
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
(THIS THE 20TH DAY OF MAY, 2011)
Original Application No. 470 of 2000
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. D.C. Lakha, Member (A)
Ram Babu S/o Sri Satya Prakash, R/o C.I.R.G., Makhdoom, District Mathura.
. . . Applicant
By Adv: Sri K.P. Singh
V E R S U S
1. Union of India through Secretary, Indian Council of Agriculture Research Krishi Bhawan, New Delhi.
2. Director, Central Institute for Research on Goats, Makhdoom, Matura.
3. Administrative Officer, Central Institute for Research on Goats, Makdoom, Mathura.
. . . Respondents
By Adv: Sri N.P. Singh
O R D E R
By Honble Dr. K.B.S. Rajan, Member (J) Though the pleadings had swelled beyond the need, for the purpose of consideration of the issue involved, sufficient to deal with the legal points.
2. The applicant, languishing as Junior Clerk in the respondents organization since 1986 has filed this OA seeking consideration for promotion to the post of Senior Clerk from the date he was due for promotion against the promotional quota vacancy caused in 1998. The respondents contend that as two of his annual confidential reports had been found adverse, he could not be recommended for promotion by the DPC which met on 17-02-1999. The applicant contends as under:-
(a) He has not been communicated any adverse remarks.
(b) He was granted the benefits of ACP which also had to follow the same norms for promotion and if he could be found eligible and suitable for drawal of ACP benefits, there is no question of his not being eligible for promotion as Senior Clerk.
(c) On the date when the DPC met, there could not have been any adverse remarks as contended by the respondents.
(d) Respondent No. 4 is solely responsible for creating such a situation, whereby the applicant has not been promoted.
3. Respondents contention is that the DPC had not recommended the name of the applicant and hence the applicant could not be selected.
4. Annexure CAII is the remarks in the ACR for 1992-93 and 1997-98 and the same reads as under:-
ENTRY IN CRS OF SH. RAM BABU, JR. CLERK DURING THE YEAR 1992-93 AND 1997-1998.
1992-1993.
During the reporting period Sh. Ram Babu, Jr. Clerk was posted in the Central Stores had prepared a false Muster Roll and certified the attendance of Sh. Vimal Kumar, DPL on dated 16.7.1992 and 17.07.1992. Other Group D employee who was posted in the Central Stores confirmed that Sh. Vimal Kumar, DPL was absent on 16.07.1992 and 17.07.1992.
That fact was not brought to the notice of undersigned by Sh. Ram Babu and he had cancelled the said muster roll without amy approval and submitted a fresh muster roll showing absent of Sh. Vimal Kumar on dated 16.07.1992 and 17.07.1992, such act on the part of a councils employee indicates a debut full integrity.
Sd/-
(Rakesh Kumar) Admn. Officer, IVRI, Izatnagar.
1997-1998:-
On 06.09.1997 Mr. Ram Babu, Jr. Clerk (Cashier) was sent to Bank by Dr. D.K. Nandy, DDO for collection of cheques of labour wages. When Sh. Ram Babu was returning after encashment of cheques, some robbers attacked the Jeep and a sum of Rs. 3,19,865.09 was looted. Police investigation is going on this process. After seen the result of the investigation is integrity may be certified.
Sd/-
29.05.1999 (Anil Behari) Asstt. Admn. Officer, CIRG, Makhdoom
5. In so far as the first remark is concerned, the same had not been communicated to the applicant. This is evident from para 12 of the counter in reply to para 4.9 of the O.A. The two paragraphs read as under:-
Para 4.9: That it is very important to mention here that the applicant was never communicated with the adverse entry in the CR, rather work of the applicant was always appreciated.
Para 12 of the counter: That contents of paragraph No. 4.9 of the OA are not admitted as stated. In fact, due to pendency of some cases, the Annual confidential reports of the applicant cold not be communicated to the applicant.
6. As regards the second remark, the applicant has in para 4.26 of the OA rightly contended as under:-
4.26: That it is very important to mention here that annexure CA II which has been annexed by the respondents clearly demonstrates that the alleged adverse entry has been shown on 29-05-1999 after D.P.C. was over. So, these alleged adverse entries cannot be the basis of the DPC, which took place on 17.2.99.
7. The above paragraph of the O.A. could not be rebutted by the respondents.
8. In the written arguments, counsel for the respondents justified the action of the respondents in para 33 as under:-
The Departmental Promotion Committee adopted the formula of seniority subject to fitness and the Departmental Promotion Committee examined intensively the case of Shri Ram Babu for promotion to the post of Sr. Clerk but on having found him unfit, the Departmental Promotion Committee switched over to the next junior Mr. Radha Raman Sharama and examined the case in the same manner and he was found fit for promotion to the post of Sr. Clerk and accordingly the proceedings were completed.
9. The Departmental Promotion Committees proceedings vide CA I do not even refer to the name of the applicant but has only stated as under:-
CENTRAL INSTITUTE FOR RESEARCH ON GOATS MAKHDOOM, PO; FARAH-281 122, MATHURA (UP) PROCEEDINGS OF THE DPC MEETING HELD ON 17.2.1999 AT 12.30 PM IN THE DIRECTORS CHAMBER FOR PROMOTION TO THE POST OF SENIOR CLERK OF PROMOTION QUOTA.
The following present:
1.
Dr. K.P. Pant Director, CIRC, Makhdoom Chairman
2. Dr. G. Chandra, Ex-Dean, College of Vety. Sci, Mathura, UP Member
3. Dr. R.L. Sagar Pr.Sci., CICFRI, Barrackpore Member for SC/ST
4. Sh. Charles Ekka Sr.Admn. Officer, CIAE, Bhopl Member
5. Sh I.S. Harith Admn. Officer, CIRG, Makhdoom Member Secretary A self contained note alongwith the Recruitment Rules for Senior Clerks and the seniority list of Jr. Clerks of CIRG, Makhdoom was submitted to the DPC by the Member Secretary with the request to make necessary recommendations for filling up one post of Sr. Clerk of promotion quota in accordance with the provisions contained in the Recruitment Rules.
The DPC intensively examined the CRs and other service records of the candidates in accordance with the seniority list of the Jr. Clerks (First five Jr. Clerks being in the consideration Zone for filling of one post of Sr. Clerk) and applied the theory of filling the post on the basis of seniority subject to their fitness on the basis of all available records. On having examined all relevant records, the DPC recommended that Sh. Radha Raman Sharma, Jr. Clerk, be promoted to the post of Sr. Clerk in the pay scale of Rs. 4000-100-6000/- against the promotion quota of the Institute with effect from date of his joining.
10. In para 7 of the counter, the respondents have stated, the case of the applicant was considered by the Departmental Promotion Committee and he was not found fit by the Departmental Promotion Committee on the basis of the five yearly Annual Confidential Reports and other Records. The proceedings of the Departmental Promotion Committee along with a copy of the Annual Confidential Reports of the applicant are being filed herewith and marked as Annexure No. CA 1 and CA 2 respectively.
11. Thus, the non promotion of the applicant to the post of Sr. Clerk is purely on account of the remarks as contained in Annexure CA 2.
12. It is trite law that un-communicated remarks cannot be taken into account while considering the case of any individual for promotion. See (a) Constitution Bench Judgment in the case of Prakash chand Sharma vs Oil and Natural Gas Commission, 1970 (4) SLR 116; (b) S.L. Soni vs State of M.P. 1995 Supp (3) SCC 156 in which case the Tribunal has concluded as under:-
We conclude that the DPC has erred in taking into consideration, the uncommunicated adverse remarks for the period ending March 1978 while considering the applicants fitness for promotion to the post of Assistant Conservator of Forests. We accordingly direct that a fresh DPC be constituted for evaluating the applicants claim for promotion with retrospective effect. The DPC shall not take into consideration the adverse remarks for the year ending March 1978, otherwise, it may follow the same criteria for adjudging applicants suitability for promotion as has been followed by the DPC held in 1982. The applicant, if found fit, will be entitled retrospective notional promotion and seniority from the date his juniors were promoted. For the reasons recorded in para 3 above, the applicant will not be, however, entitled to any consequential cash benefits.
13. The post admittedly being one of non selection, the DPC need not make comparative assessment of the records of officers and it should categorize the officers as fit or not yet fit for promotion on the basis of assessment of their record of service. It is not the case of the respondents that the DPC found unfit on the ground of any average grade etc., Thus, when the adverse remarks as contained in CA 2 alone were the reasons for dropping the applicant from promotion, the non promotion of the applicant has to be necessarily held as bad in law.
14. In view of the above, the OA is allowed. It is concluded that the DPC had erred in taking into consideration, the un-communicated adverse remarks for the period ending 1992-93 while considering the applicants fitness for promotion to the post of Sr. Clerk. Respondents are directed to constitute a fresh DPC for evaluating the applicants claim for promotion with retrospective effect. The DPC shall not take into consideration the adverse remarks for the year 1992-93 (much less the one which contains adverse remarks as of 29-05-1999) and if the applicant is found fit he be given promotion from the date respondent No. 5 was promoted. The applicant is entitled to arrears of pay and allowances arising out of such promotion also. In so far as private respondent is concerned, it is for the respondents either to keep him under a supernumerary post that could be created to accommodate him or treat him as reverted to the post of junior clerk and consider his promotion according to the availability of vacancies under the promotional quota. In the event of his being continued as promoted, the said respondent shall be kept as junior to the applicant in the post of Sr. Clerk for the purpose of higher promotion.
This order shall be complied with in toto, within five months from the date of communication of this order. No cost.
Member (A) Member (J)
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