Central Administrative Tribunal - Lucknow
Dr. J.P. Srivastava vs Union Of India (Uoi) And Ors. on 26 May, 2003
Equivalent citations: 2004(2)SLJ138(CAT)
ORDER A.K. Misra, Member (A)
1. The applicant of this O.A. has prayed that the directions be issued to the respondent No. 2 to promote the applicant in the Sr. Administrative Grade of the Indian Railway Medical Service (hereinafter referred to as IRMS) w.e.f. 17.2.97 after maintianing his seniority as given in the selection grade of IRMS.
2. Pleadings on record have been perused and learned Counsel for the parties have been heard.
3. The brief facts of the case are that the applicant who belongs to IRMS was promoted in the selection grade on 20.11.92. The applicant was however, not promoted in the Sr. Administrative Grade of IRMS in pursuance of the DPC held on 12.9.96 although quite a few officers junior to the applicant were promoted to the Sr. Administrative Grade of IRMS by order dated 17.2.97 in pursuance of the DPC held on 12.9.96. The contention of the applicant is that he had never been communicated any adverse remarks, if at all, recorded in his character roll and in the absence of communication of any adverse remarks there was absolutely no justification for denying promotion to him to the Sr. Administrative Grade by the Selection Committee which met on 12.9.96 specially because a number of officers junior to him were recommended for promotion to the Sr. Administrative Grade by the DPC and consequential orders of promotion in the case of juniors were duly passed on 17.2.97.
4. The short point for consideration in this case is whether an officer who is otherwise due for promotion to the Sr. Administrative Grade can be ignored for promotion even though no adverse remarks in any of his ACRs were communicated to him. This question was considered by this Tribunal in O.A. No. 523/98 in the case of Kalyanesh Kumar Bajpai v. Union of India decided on 10th October, 2002. As a matter of fact the issue involved in the present O.A, is squarely covered by the decision in the case of Kalyanesh Kumar Bajpaiv. Union of India in O.A. No. 523/1998. In this case records of the DPC held on 12.9.96 and on 16.12.97 were summoned along with ACR folder of the applicant. The following table will give a fair idea of the entries recorded in the ACR of the applicant.
Year Rep. Officer Rev. Officer Accep. Officer Adverse if any Fitness for Promotion 91-92 V. Good V. Good V. Good Nil Fit by all the authorities 92-93 V. Good Good Good Adverse remarks recorded by Rev. Authority Fit by all the authorities 93-94 V. Good Good No remarks as G.M. retired Nil Fit by all theauthorities 94-95 V. Good V. Good V. Good Nil Fit by all the authorities 95-96 V. Good Good Good Nil Fit by all the authorities 96-97 V. Good V. Good V. Good Nil Fit by all the authorities
5. The tabular statement above shows that the applicant had been down graded as good in the years 92-93, 93-94 and 95-96 by the Reviewing/Accepting Officer. For the years 91-92, 94-95 and 96-97, the applicant has been graded as Very Good. He has, however, been graded fit for promotion in all the years and even in those years in which his over all grading is recorded as Good. It is also interesting to note that there are adverse remarks recorded in his ACR for the year 92-93 which read as under:
"He has shown little inclination to take up higher responsibility and his approach towards family welfare programme could have been more industrious. He has a pleasing personality but is reluctant to take decisions. He has made no noteworthy contribution to the running of Divisional hospital. I therefore, rate him as Good only."
6. The undisputed position is that the bench mark prescribed for promotion to the Sr. Administrative Grade was Very Good and it has also not been disputed that the grading of Good recorded by the Reviewing/Accepting Officer which is below the bench mark and had been given to the applicant in the years 92-93, 93-94 and 95-96 had not been communicated to him. Even the adverse remarks recorded by the Reviewing Officer for the year 92-93 had never been communicated to the applicant and the Accepting Authority i.e., G.M., North Eastern Rly. Gorakhpur has just accepted the remarks of the Reviewing Authority. Thus neither the gradings below the bench mark were communicated to the applicant nor the adverse remarks for the year 92-93. The suitability for promotion to the Sr. Administrative Grade is to be assessed on the basis of the service records of an officer with particular reference to the ACRs of the five immediately preceding years. It is also an undisputed fact that the Selection Committee is not guided only by the over all assessment made by the superior authorities but the Selection Committee makes its own assessment of the performances of the candidates in the zone of consideration on the basis of their ACRs. It therefore, follows that the ACR entries which even though not adverse could be considered as unfavourable despite being categorised as good or average. As per Para 209-D of the IREC Volume I, promotion to the SAG level is made on the basis of selection based on merit.
7. The case of the applicant is that though he was found fit for promotion in the selection grade on 20.11.92, he has been ignored for promotion without any justification to the SAG level whereas a number of officers junior to the applicant were promoted by order dated 17.2.97, in pursuance of the recommendations of the Selection Committee which met on 12.9.96. Subsequently another DPC met on 16.12.97 and the applicant was not considered fit for promotion to the SAG level even by this DPC. The contention of the applicant is that since the bench mark for promotion to the SAG level is very good, all the ACRs grading him as good and average should have been considered as unfavourable and communicated to him. Likewise all the ACRs down-graded by the Reviewing or Accepting Authority from Very Good to Good or average should also have been communicated. It was argued that since the ACRs grading the applicant as good or average were never communicated, the said ACRs could not have been considered by the Selection Committee for ignoring him for promotion to SAG level. Reference was made in this regard to the circular letter of the Railway Board issued on 26.9.1989. Reference was also made on behalf of the applicant to the following decisions:
1. U.P. Jal Nigam and Ors. v. Prabhat Chancier Jain and Ors., 1996 SCC (L and S) page 519.
2. Biloo Singh and Ors. v. UOI, 2001 (3) ATJ page 626 (CAT-P.B.).
8. On behalf of the respondents it was stated that selection to the SAG level is based on merit as provided in Para 209-D of the IREC Volume I. It was submitted on behalf of the respondents that the applicant was not found suitable for promotion by the Selection Committee which met on 12.9.96 and also by subsequent Selection Committee which met on 16.12.97. Hence the applicant was ignored for promotion to SAG level. It was also submitted that the mere fact that the applicant was promoted to the selection grade in his turn does not give him any vested right for promotion to the SAG level because parameters for giving promotion to the selection grade and to the SAG level are different in view of higher responsibilities which an officer is called upon to shoulder at the SAG level. It was also submitted on behalf of the respondents that an officer only has the right for consideration for promotion and there is no vested right for promotion as such. The applicant having been considered for promotion by the Selection Committee which met on 12.9.96 and having not been found fit cannot therefore, have any grievance. Reference was made on behalf of the respondents also to the circular letter of the Railway Board dated 26.9.89 which lays down the procedure for promotion to the Administrative Grade. On behalf of the respondents reference was made to the decision of the Full Bench of this Tribunal in the case of Manik Chand v. UOI, 2002(3) ATJ page 268 (FB-CAT).
9. We have carefully considered the submissions made on behalf of the parties. The only issue for consideration in this case is whether the omission of the applicant's name for the select list drawnup by the DPC which met on 12.9.96 and subsequently on 16.12.97 for promotion to SAG level was warranted on the basis of ACRs. It will be useful in this regard to reproduce below the relevant extracts of the circular letter dated 20th January, 1988 of the Railway Board.
'In regard to communication of adverse remarks it has been decided that unfavourable entries will be conveyed to the Reportee Officer in writing at the express approval of the Accepting Authority within one month of receipt, after the completion of the report."
10. Besides we find from the perusal of the proforma devised by the Ministry of Railways for writing ACRs that certain instructions are there in the ACR proforma itself. Instruction No. 6 of the said proforma provides that performance appraisal should be a joint exercise between the officer reported upon and the reporting officer. Instruction No. 8 of the said proforma provides that since performance appraisal is a tool for human resource development, the reporting officer and the officer reported upon should meet during the course of the year at regular intervals to review the performance and to take corrective steps where necessary. Instruction dated 28.8.96 issued under the Railway Board's letter No. 96/289/B/Secretary/Administration provides that the ACRs for considering an officer not fit for promotion should be supported by adequate remarks specially in the case of officers who are graded as good. It cannot be disputed that adverse remarks if any recorded in the ACR must be communicated to the officer reported upon and if not communicated such remarks cannot be taken into consideration for superseding the officer concerned in promotion. As already stated above though the final grading in the ACRs of the applicant for the years 92-93, 93-94 and 95-96 was good and hence below the bench mark, the same was not communicated to the applicant in violation of instruction dated 28.8.96 of the Railway Board. Similarly in the year 92-93, adverse remarks were recorded by the Reviewing Officer as reproduced above in Paragraph No. 5 but even these adverse remarks were not communicated to the applicant in gross violation of the instructions contained in the Railway Board's letter dated 20.1.88 as reproduced in Para 9. Since these adverse remarks were never communicated to the applicant, they cannot be taken into consideration for ignoring him for promotion to the SAG level. It will be useful in this regard also to refer to the instructions of the Railway Board No. 96/289-B-Secy. Admn. dated 28.8.96, the relevant extracts of which are reproduced below:
"Perusal of a number of ACRs has shown that even now, there are instances of officers being declared unfit for promotion to the next grade, without any specific remarks in the report pointing to the fact that the officer is not suitable for promotion. This is particularly noticed in cases of officers who are graded as Good. It is reiterated that if an officer is not considered suitable for promotion to the next grade, such a grading should be supported by adequate remarks in the body of the report pointing to some short comings in the officer's performance rendering him unfit for promotion. Obviously in such eases, the relevant remarks which should be considered as adverse will have to be communicated to the officer, to enable him to improve his performance."
11. Inspite of instructions of the Railway Board dated 20th January, 1998 and instructions dated 28.8.96 as reproduced above, we find that the ACRs of the applicant for the years 92-93, 93-94 and 95-96 were down graded from Very Good to Good by the Reviewing and Accepting Authority and such down grading was neither communicated to the applicant nor was supported by any remarks or reasons justifying the down grading. Thus the down grading of the ACRs for the years 92-93, 93-94 and 95-96 was in violation of the instructions issued by the Railway Board.
12. On behalf of the respondents strong reliance was placed on the decision of the full bench of this Tribunal in the case of Manik Chand v. Union of India, (supra) in support of the contention that since the Selection Committee make its on assessment of an officer's suitability for promotion to the SAG, the gradings which are below the bench mark can be taken into account by the Selection Committee. According to the respondents, the full bench of this Tribunal took the view the while adverse remarks in the ACRs have to be communicated, there is no requirement whatsoever of communicating ACRs which have been graded below the bench mark as good.
13. We have gone through the full text of the judgment in the case of Manik Chahd v. Union of India (supra) and we find that the ratio of the decision of the full bench of this Tribunal is that where the ACR has been down graded by the Reviewing/Accepting Authority to good from very good recorded by the reporting officer, such down grading "being" below the bench mark should be communicated. It would be relevant in this regard to reproduce the extracts of the observations made by the full bench in the case of Manik Chand v. Union of India. While discussing the judgment of the Hon'ble Supreme Court in the case of State of U.P. v. Yamuna Shanker Mishra in Paragraph 8 of the judgment, the full bench made the following observations:
"Thus no ratio has been laid down about whether any entry which is not adverse by itself needs to be communicated or act. What has been stated is that if there is down grading in the ACR, the same needs to be communicated."
14. Further while refering to certain judgment delivered by the Principal Bench of this Tribunal, the full bench in the case of Manik Chand observed as under in Paragraph 10:
"In fact, in most of the cases, there was either down grading of the ACR or some adverse remarks and therefore, rightly the Principal Bench had ordered them to be communicated to the concerned employees following the judgment in U.P. Jal Nigam".
15. In Para 12 of the judgment of the full bench in the case of Manik Chandv. U.O.I. while referring to the judgment of the Bombay Bench of this Tribunal in the case of Charan Singh Azad v. State of Maharashtra (O.A. No. 117/99), the following observation was made by the full bench:
"In fact some 36 judgments were taken into consideration while holding that grading which is good but which is below the bench mark needs to be ignored if uncommunicated. This particular order was challenged in the High Court of Bombay and we are informed that the High Court gave directions to the respondents to communicate the remarks in the ACR even though they were not adverse as such. In short, according to the learned Counsel for the applicant, this judgment has come to be upheld by the High Court of Bombay, we do sec that in the aforesaid judgment the express view was held that even positive gradings below bench mark need to be ignored if not communicated."
In Para 17 of the judgment the full bench in the case of Manik Chandv. Union of India by which the issue has been finally adjudicated laid down the following ratio :
"Considering the above discussion and the practical difficulties involved, we hold the view that it is not necessary to communicate the remarks/gradings which are not below the bench mark prescribed for promotion to a particular post in respect of selection post. There is no quarrel for communication of those grading/remarks which have been down graded or where there is a steep fall as has been held in U.P. Jal Nigam (supra) and Gurudayal Singh Fijji (supra).
16. Thus the full bench judgmentan the case of Manik Chand v. Union of India, (supra), sttongly relied upon on behalf of the respondents is clearly distinguishable in view of the observations made in this judgment, extracts of which have been reproduced above and specially in the light of the ratio laid down in the said judgment in Para 17 which also has been reproduced above. According to this judgment also, ACR entries which have been down graded below the bench mark from "very good" to "good" need to be communicated apart from those entries in the ACR which are adverse. Needless to say that in the case of the applicant of the present O.A., neither adverse remarks recorded in the year 92-93 nor the down graded ACRs in the years 92-93, 93-94 and 95-96 were even communicated to the applicant and hence these entries should, in ail fairness, have been ignored by the DPC while assessing the suitability of the applicant for promotion to SAG.
17. On behalf of the applicant reliance was placed on the decision of U.P. Jal Nigam v. Prabhat Chander Jain (supra). In this case it was observed by the Hon'ble Supreme Court as under:
"Even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be quantitatively damaging may not be true."
In the case of U.P. Jal Nigam, it has been clearly held that any down grading is necessarily to be communicated to the employee concern.
18. On behalf of the applicant reference was also made to the decision of the Principal Bench of this Tribunal in the case of Smt. T.K. Aryavirv. Union of India and Ors. In this judgment it was held by the Principal Bench that any grading below the bench mark of Very Good and which effects the promotion prospects of an employee has to be communicated. Accordingly directions were given in this case to consider the applicant for promotion ignoring the ACRs which were adverse or below the bench mark of very good and which had not been communicated. The O.A. was allowed by the Principal Bench with costs of Rs. 3000/-.
19. Reference was also made on behalf of the applicant to the decision of the Bombay High Court in the case of Dr. Binoy Gupta v. Union of India and Ors. in which it was held by the Hon'ble High Court of Bombay that down grading of the ACR from Very Good to Good if not communicated vitiates the DPC proceedings. Directions were accordingly given to convene a review DPC for reconsideration of the applicant's case by ignoring the ACRs which had been down graded.
20. We have also gone through the judgment in the case of Billo Singh v. Union of India and Ors., (supra) but we find that this judgment which is on casual labour has no relevance in the case of the applicant to the present O.A.
21. Besides it will also be useful here to refer to the certain other judgments of the Apex Court and the Hon'ble High Court on the issue of communication of adverse remarks and of ACRs which have been down graded below the bench mark. In this regard reference may be made to the judgment of the Hon'ble High Court in the case of Gurudayal Singh Fijji (supra), the relevant extracts of which are reproduced below:
"The principle is well settled that in accordance with the rules of natural justice, an adverse report in the confidential report cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned."
22. The principle laid down in the case of Gurudayal Singh Fijji v. State of Punjab (supra) was relied upon by the Apex Court in the subsequent decision in the case of Amar Kant Chowdhary v. State of Bihar, AIR 1984 page 531. Likewise Allahabad High Court in the case of Kripa Shankar Shukla v. State of U.P. and Ors., 1999(3) UPLBEC page 2399 observed as under:
"An uncommunicated adverse remark cannot as a general rule be acted upon by the employer to the prejudice of the employee. The rules and administrative instructions generally put an obligation on the authorities to communicate the adverse remarks to the employee to enable him to make a representation. Even if the (sic) or administrative instructions are silent on this aspect, the principles of natural justice require such a communication."
23. Similar view was taken by the Hon'ble Supreme Court in Sukhdeo v. Commissioner, Amaravati Division, 1996 SCC (L and S) page 1141 = 1996(2) SLJ 3 (SC). In the case of U.P. Jal Nigam and Ors. (supra) also apart from holding that down grading of an ACR below the bench mark has to be communicated, the Apex Court also held that if an ACR is down graded by the Reviewing/Accepting Authority below the bench mark, reasons for such down grading must be recorded and the official concerned should be informed of the down grading as a measure of advice.
24. Further in the case of Udai Krishanv. Union of India and Anr., 1996(1) SLJ 464 (CAT--All.), Allahabad bench of this Tribunal observed as under:
"We are inclined to agree that a good or average grading in the ACR though not (sic) adverse would assume the character of adverse remarks in the context of the requirement of bench mark of Very Good to qualify for empanelment for promotion."
25. Bangalore Bench of this Tribunal took a similar view in the case of G. Chenkamalam v. Union of India, 1998(2) SLJ (CAT) 394. Besides Bombay Bench of this Tribunal in the case of Charan Singh Azad v. State of Maharashtra, 2001(1) SLJ 97, held that the grading below the bench mark amounts to adverse and hence is required to be communicated. It was also held in this case that down grading of an ACR below the bench mark by the Reviewing/Accepting Authority is also required to be communicated because such down grading is likely to adversely affect the promotional prospects of an officer.
26. The Bombay Bench of this Tribunal in another case of Ram Babu v. Union of India, SLJ, 2001 (2) SLJ (CAT) 9 considered the judgments in the case of Charan Singh Azadandin the case of Udai Krishan, delivered by the Allahabad Bench and in the case of G. Chenkamalam (supra) and took the view that grading below the prescribed bench mark may amount to an adverse entry as it is likely to effect the promotion of an officer. The Bombay Bench of this Tribunal accordingly in the case of Ram Babu v. Union of India (supra) held that the grading below the bench mark should not be acted upon unless it is communicated.
27. Ratio of various judgments discussed in the foregoing paragraphs settles two issues. In the first place, the adverse entry in the ACR of an officer if not communicated cannot be taken into account by the DPC for assessing the suitability for promotion of the officer concerned . Secondly wherever an ACR is down graded by the Reviewing/Accepting Officer, below the bench mark, such down grading also has to be communicated and if not communicated; the same cannot be taken into account by the DPC for assessing the suitability of the officer concerned for promotion.
28. The foregoing discussion would reveal that not only the instructions of the Railway Board dated 20.1.88 and instructions of the Railway Board dated 28.8.96 were violated by the respondents even the guidelines contained in instruction No. 6 and instruction No. 8 of the proforma for writing ACRs were not adhered to by the respondents. Besides the supersession of the applicant without communicating the adverse remarks recorded against him for the year 92-93 and without communicating the over all grading for the years 92-93, 95-96 and 93-94 which had been turned down from Very Good to Good also cannot be justified in the light of the case law discussed above.
29. In the light of the findings recorded by us in the immediately preceding paragraph, we direct the respondents to reconsider the applicant for promotion to the SAG level by holding a review DPC of the DPC held on 12.9.96 after ignoring the adverse remarks for the year 92-93 recorded by the Reviewing Officer and after ignoring the down grading of the ACRs for the years 93-94 and 95-96 from Very Good to Good. These directions shall be carried out within a period of 2 months from the date of receipt of this order.
30. In the result, O.A. is allowed as above without any order as to costs.