Central Administrative Tribunal - Delhi
Shri Sudhir Chopra vs Union Of India on 9 February, 2012
Central Administrative Tribunal
Principal Bench
OA No.3677/2011
Reserved on : 06.02.2012
Pronounced on : 09.02.2012
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Shri Sudhir Chopra
S/o Late Shri I. S. Chopra
Aged about 59 years,
R/o E-103, Kalkaji,
New Delhi. . Applicant.
(By Advocate : Shri V. K. Rao, Senior Advocate with
Sh. Saurabh Srivastava)
Versus
1. Union of India
Through the Secretary to the
Government of India,
Ministry of Defence,
South Block,
New Delhi.
2. Director General
Defence Estates
Raksha Sampda Bhawan,
Ullanbaatar Road,
Delhi Cantt. . Respondents.
(By Advocate : Shri M. K. Bhardwaj)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
Shri Sudhir Chopra working as Joint Director in the Directorate of Defence Estates, the applicant herein, is aggrieved by the recommendation of the DPC conveyed in the letter dated 24.08.2011 by which he was denied promotion to the Senior Administrative Grade (SAG) of the Indian Defence Estates Service (IDES). It is the case of the applicant that the said DPC did not take into account the fact that the adverse remarks and the below benchmark gradings in the ACRs of the applicant were never communicated to him, nor the same were placed before the Reviewing and Accepting Authorities. It is further stated that the second respondent informed him on 24.08.2011 about the closure of the disciplinary proceedings initiated against him vide Memo dated 1.02.2011. Therefore, the sealed covers containing the recommendations of the DPC held on 16.05.2007 were opened following the directions of this Tribunal dated 15.07.2011 passed in OA No.2515/2011. On opening the sealed covers, it has been found that the regular DPC for the vacancy year 2006-2007 held on 16.05.2007 and also the review DPC for the same vacancy years and regular DPCs for vacancy years 2007-2008, 2008-09 and 2009-10 held on 20.08.2009, wherein, the applicant was assessed as Unfit for promotion to the SAG of IDES. The competent authority having accepted the recommendations of the DPC issued the letter dated 29.08.2011 (Annexure-A1). It is the case of the applicant that while holding the applicant Unfit by the DPC for promotion to SAG, the DOP&T guidelines regarding initiation, reporting, reviewing and accepting of ACRs were not properly followed. The adverse remarks and below benchmark gradings in the ACRs were never communicated to the him. It is stated that the ACRs for the period 2000-2001 till 2005-2006 have been supplied to the applicant only in September, 2010. It is further the case of the applicant that his representations against the ACRs for the year 2003-2004 and 2004-2005 were summarily rejected by a non speaking order by the second respondent and his representation against the grading in the ACR for the year 2006-2007 met with similar fate in the hands of the 1st respondent. The representations against the ACR for the year 2009-2010 were also rejected by the 1st respondent. The representation against the ACRs for the year 2003-2004 and 2004-05 were rejected by the 2nd respondent who is not competent to decide the matter. In these circumstances, the applicant having been aggrieved by the action of the respondents has approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
A. Issue time bound direction to Respondents in view of the applicants retirement on superannuation on 29.12.2012 (It should be 29.02.2012) to promote the applicant to SAG from the date his junior was promoted in 2007 and to HAG from the date his batchmates/juniors were promoted to this grade or from the date of occurrence of respective vacancy in respect of the applicant whichever is earlier, by treating the ACRs for the years 2000-01 to 2007-08 as non est and taking into account the fact that without outstanding service record the applicant could not have been appointed and continued on a faculty position in the training institute because of the stringent conditions of selection as also the fact that outstanding ACR have been given by his Reviewing Officer who is also the present head of Department for the years 2009-10 and 2010-11 when he was Principal Director of Defence Estates Southern Command.
B. All consequential financial benefits flowing from promotion to SAG and HAG with retrospective effect.
C. Exemplary damages to the applicant for his harassment humiliation and victimization over a prolonged period of time for having exposed high level corruption in Defence Estates department.
D. Any other direction which the Honble Tribunal may consider just and reasonable to secure the ends of justice.
2. Shri V. K. Rao, learned Senior Advocate with Shri Saurabh Srivastava, learned counsel, would highlight the background of the case and draw our attention to the 2nd respondents letter dated 29.10.2010 to state that order on the representation of the applicant pertaining to the ACRs for the years 2003-2004 and 2004-2005 have been considered and rejected by the Director General of Defence Estates who is not competent to decide the same. Besides said letter inter alia indicated that the decision of the competent authority on the representation of the applicant against the overall assessment made on his performance in the ACRs for the year 2000-2001, 2001-02, 2002-03 and 2005-06 would be communicated to him as and when such decision could be received by them. He would further submit that the ACR for the year 2006-07 on which the representations were received from the applicant, the competent authority, namely, the Defence Secretary had rejected the same on 17.07.2011. He further drew our attention to the counter reply filed by the respondents to say that applicants common consolidated representation dated 12.10.2010 submitted against the ACRs for 2000-2001 to 2005-2006 would be considered by the 1st respondent and decision would be shortly conveyed. However, in respect of the representations against the below benchmark gradings in the ACRs for 2003-04 and 2004-05 though considered by DG, Defence Estate and rejected, respondents admitted in the counter reply that respondents having reconsidered the issue of incompetency of the DG Defence Estate to decide his representations, the applicants ACRs for the year 2003-04 and 2004-05 would be referred by the second respondent to the 1st respondent shortly. Shri V. K. Rao, therefore, contends that applicant would be satisfied if a time bound direction is given to the 1st respondent to consider the applicants representation (s) against the below bench mark and adverse remarks in his ACRs and if the applicants claim is accepted and the overall assessment gradings are upgraded, consequentially the respondents should conduct review DPC for consideration of his case for promotion to the SAG and HAG grades and associated financial benefits should be extended to the applicant.
3. On receipt of notice from the Tribunal, the respondents have entered appearance through Shri M. K. Bhardwaj, learned counsel. It is stated by the counsel for respondents that the competent authority to decide the representation against the below bench mark ACRs and adverse entries in the ACRs is the Secretary, Defence i.e. the 1st respondent. It is also stated that many representations of the applicant with regard to below benchmark gradings are pending consideration by the competent authority and appropriate action would be taken to decide the matter expeditiously. He also submits that two ACRs of the applicant for the year 2003-04 and 2004-05 which were decided by the 2nd respondent and as he is not competent to decide such representations, all relevant papers are being placed before the 1st respondent who is the competent authority to decide the representation. Orders on the same would be expected shortly.
4. Having considered the above facts, it is admitted fact that Director General of Defence Estates is not the competent authority to decide the representations of the applicant in so far as his representations against the adverse remarks in the ACRs and below bench mark gradings are concerned. It is also the fact that the incompetent authority has decided the representations of the applicant in so far as the below benchmark gradings for two years (2003-04 and 2004-05) are concerned. Admittedly, the same should have been decided by the 1st respondent. The second respondent having decided and communicated the rejection of representation of the applicant, the order dated 29.10.2010 is liable to be quashed and set aside. We order accordingly.
5. It is noted that due to the below benchmark gradings in the applicants ACR for some years, he has been assessed as Unfit by the DPC to the next higher post of SAG. Further, not only his juniors marched over him to SAG but also some of them have got next higher position namely HAG. We note that below benchmark gradings have been impediments against his promotion. Further his representations are pending and respondents are taking the matter so leisurely that the applicant may retire this month without getting his grievances properly redressed. We, therefore, direct that all the relevant representations should be placed before the 1st respondent, more specifically (a) those representations against the adverse remarks in his ACR and below bench mark gradings in the ACRs, and (b) the representations for his promotion to the SAG and HAG. In his turn, the 1st respondent would take a decision on these representations dispassionately within a time frame of 15 days from the date of receipt of certified copy of this order. It goes without saying that in case the applicants overall assessment gets upgraded, and the adverse remarks in the ACR gets expunged, the respondents would be duty bound to convene the review DPC for consideration of applicant to the SAG/HAG as per the relevant rules. Let the exercise as ordained above be undertaken as expeditiously as possible but positively before the applicant attains his superannuation on 29.02.2012.
6. In terms of our above directions to the respondents, we dispose of the OA, however, leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman
After the judgment was pronounced, counsel for applicant states that while arguing the matter a request was made that while deciding representation of the applicant, he may be heard in person. We will leave it to the concerned authority to hear the applicant.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/