Bombay High Court
The Union Of India And 3 Ors vs Smt.Geeta Manohar Mhapankar on 5 December, 2018
Equivalent citations: AIRONLINE 2019 BOM 1186
Author: A.S.Oka
Bench: A.S.Oka, Sandeep K. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1104 OF 2011
1) The Union of India
Through the Secretary,
Ministry of Defence,
South Block, New Delhi 110 001
2) The Chief of Naval Staff
Naval Headquarters,
Sena Bhavan, DHQ P.Q.,
New Delhi 110011
3) The Flag Officer Commanding-in-Chief,
Headquarters, Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai 400 001
4) The Material Superintendent,
Material Organisation, Ghatkopar (W),
Mumbai 400 086 ....Petitioners.
Vs
Smt. Geeta Manohar Mhapankar
Presently working as U.D.C.(Age 54 years)
Group 'C' in the office of
Material Superintendent, Ghatkopar,
and Residing at 2/Devdarshan,
Milan Subway, Road No.1,
Santacruz (West), Mumbai- 400 054 ... Respondents
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WITH
WRIT PETITION NO.1953 OF 2011
1) The Union of India
Through the Secretary,
Ministry of Defence,
South Block, New Delhi 110 001
2) The Chief of Naval Staff
Naval Headquarters,
Sena Bhavan, DHQ P.Q.,
New Delhi 110011
3) The Flag Officer Commanding-in-Chief,
Headquarters, Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai 400 001
4) The Material Superintendent,
Material Organisation, Ghatkopar (W),
Mumbai 400 086 ....Petitioners.
Vs.
Smt. Neelam Dilip Vadkhalkar,
Presently working as Upper Division Clerk,
Group-C, in the office of Material Superintendent,
Ghatkopar and residing at: Neha Korres Tower,
1502, Vartak Nagar, Thane (W). ...Respondent
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WITH
WRIT PETITION NO.2098 OF 2011
1) The Union of India
Through the Secretary,
Ministry of Defence,
South Block, New Delhi 110 001
2) The Chief of Naval Staff
Naval Headquarters,
Sena Bhavan, DHQ P.Q.,
New Delhi 110011
3) The Flag Officer Commanding-in-Chief,
Headquarters, Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai 400 001
4) The Material Superintendent,
Material Organisation, Ghatkopar (W),
Mumbai 400 086 ....Petitioners.
Vs.
Smt. Shweta Shrikant Rane
Presently working as Upper Division
Clerk (age 50 years), Group-C in the office
of the Material Superintendent, Ghatkopar
& Residing at 29/1589, MHB Colony,
Kher Nagar, Bandra (E),
Mumbai 400 051 ....Respondent
...
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Mr. R.R.Shetty for the Petitioner in all Petitions.
Mr. A.I.Bhatkar for the Respondent No.1.
Mr. Dharmesh Joshi for Respondent-Union of India.
CORAM : A.S.OKA &
SANDEEP K. SHINDE JJ.
DATE : 5 DECEMBER, 2018
ORAL JUDGMENT : [Per A.S.Oka, J.]
As these writ petitions arise of out a common judgment and order passed by the Central Administrative Tribunal in three different original applications, we have taken up these three writ petitions together.
2 By the judgment and order dated 29 th July, 2010 which is impugned in these three writ petitions, the Original Applications preferred by the Respondents were allowed by the Tribunal. In short, the grievance made in the Original Applications by the Respondents was as regards the failure of the Union of India to grant benefit of second financial upgradation to them. In the impugned judgment, it is noted that the minimum bench mark for the promotion to the post of 'Assistant' was "good". The Tribunal found Shivgan 4/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:57:59 ::: 905-WP-1104-11.odt that in case of the respondents, the grading 'Average' was given for three different years. It was below the bench mark. The Tribunal found that the said gradings were not communicated to the Respondents. The Tribunal relying upon the decision of the Apex Court in the case of Dev Dutt v. Union of India & Ors. 1 held that it was the duty of the Petitioners to communicate to the Respondents the gradings in the ACR which were below the bench-mark and ought to have granted an opportunity to the Respondents to represent against the below bench-mark entries. After recording the said findings, the Tribunal in paragraph 13 issued following directions:
"13 In view of the above, we direct the Respondents to consider the case of the Applicants in all these three O.As. for Second Financial Upgradation by convening a fresh meeting of the Screening Committee, to review the decision of the Screening Committee Meeting held earlier in-as-much as it pertains to the Applicants involved in these O.As. While considering the cases hereinabove, the Review Screening Committee should ignore the ACRs. which have not been communicated and the representations have not been examined/considered for a decision. On being found fit, the Applicant should be granted the Second Financial Upgradation from the due dates as per law. Consequently the Applicants shall 1 (2008) 8 SCC 725 Shivgan 5/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:57:59 ::: 905-WP-1104-11.odt be entitled to the arrears of pay and allowances."
(emphasis added) 3 The learned counsel appearing for the Petitioners invited our attention to the decision of the larger bench of the Apex Court in Sukhdev Singh v. Union of India & Ors. 2 which has affirmed the view taken in the case of Dev Dutt (Supra). He submitted that the direction issued in the impugned order of ignoring the below bench- mark entries in the ACRs while considering afresh the case of the Respondents for grant of two financial upgradation is contrary to the directions issued in the case of Dev Dutt (Supra) and the case of Sukhdev Singh (Supra). He submitted that Tribunal ought to have permitted Respondents to make a representation against the said entries which were not communicated and ought to have directed Petitioners to consider the representations. He submitted that direction issued to ignore uncommunicated ACRs is contrary to the law laid down in the case of Dev Dutt and Sukhdev Singh (Supra). Our attention was also invited to the judgment and order dated 5 th April, 2016 passed by the First Court in Writ Petition No.7255 of 2 (2013) 9 SCC 566 Shivgan 6/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:57:59 ::: 905-WP-1104-11.odt 20103. He would, therefore, submit that operative part of the impugned order needs modification to bring it in conformity with the settled law.
4 The learned counsel appearing for the Respondents relied upon a decision of the Apex Court in the case of Prabhu Dayal Khandelwal v. Chairman, Union Public Service Commission and Ors.4. He submitted that after considering the aforesaid two decisions of the Apex Court and especially the decision in the case of Sukhdev Singh (Supra), the Apex Court directed that the adverse remarks which were not communicated to the employees should not be taken into consideration on the ground that almost two decades have passed since ACRs containing adverse remarks were recorded. Inviting our attention to the concerned ACRs which were uncommunicated, he submitted that facts of the present case are similar to the facts of the case of Prabhu Dayal Khandelwal (Supra).
3 Union of India & Anr. v. Prabhakar S. Patil and Anr 4 (2015) 14 SCC 427.
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905-WP-1104-11.odt 5 The learned counsel for the Petitioners has fairly invited our attention to the order dated 28 th August, 2018 passed by the Apex Court in Civil Appeal No.32 of 2013 5. He submitted that directions issued by the Apex Court in the said order as well as directions issued to ignore adverse entries in ACRs in the case of Prabhu Dayal (Supra) are in the exercise of the powers under Article 142 of the Constitution of India in the peculiar facts of the case. Therefore, this Court will have to follow the law laid down in the case of Sukhdev Singh (Supra).
6 We have carefully considered the submissions. Paragraph 9 of the impugned judgment and order shows that in the case of Respondent in Writ Petition No.1104 of 2011, adverse remarks were in the ACRs for the year 1999-2000 and 2001-02. Adverse remarks in the case of the Respondent in Writ Petition No.2098 of 2011 were in the ACRs of the years 1999-2000, 2000-01 and 2001-02. Lastly, the adverse remarks in the case of the Respondent in Writ Petition 5 Rukhsana Shaheen Khan v. Union of India and Others Shivgan 8/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:57:59 ::: 905-WP-1104-11.odt No.1953 of 2011 were in the ACRs for the period of five years from the year 1999-2000 till 2003-04 (Both years inclusive). 7 We have perused the decision of the Apex Court in the case of Sukhdev Singh (Supra) and directions issued therein. If the decisions of the Apex Court in the case of Dev Dutt (Supra) and Sukhdev Singh (Supra) are seen, in the normal course, the Tribunal ought to have permitted Respondents to make a representation against uncommunicated adverse remarks and ought to have directed the concerned authorities to dispose of the representations. Thereafter, the cases of the Respondents for grant of benefit of Second Financial Upgradation ought to have been directed to be considered. Now coming to the decision of the Apex Court in the case of Prabhu Dayal Khandelwal (Supra), we find that the said decision of the Apex Court has quoted the decision in the case of Sukhdev Singh (Supra). In Paragraphs 7 to 9 in the case of Prabhu Dayal Khandelwal (Supra), the Apex Court held thus:
"7. In the above view of the matter, we are satisfied that the impugned order passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be Shivgan 9/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:57:59 ::: 905-WP-1104-11.odt ignored by taking into consideration, uncommunicated Annual Confidential Reports for the years 1995-1996, 1996- 1997 and 1998-1999, wherein the appellant was assessed as "good". In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being "very good", he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports.
8. On the issue, whether the representations filed by the appellant against the Reports for the years 1995-1996, 1996-1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid Annual Confidential Reports were recorded, it would be too late in the day to require the Authorities to adjudicate upon the representations made by the appellant as against the uncommunicated Annual Confidential Reports.
9. In the above view of the matter, we are satisfied, that the respondents ought to be directed to reconsider the claim of promotion of the appellant, to the post of Chief Commissioner of Income Tax, for the vacancies which arose during the years 2000-2001 and 2001-2002 on the basis of the communicated reports for the years 1997-1998 and 1999-2000, within a period of three months from today. Ordered accordingly."
(emphasis added) 8 The said decision of the Apex Court was rendered on 23 rd July, 2015. The Apex Court found that uncommunicated ACRs were of the years 1995-96, 1996-97 and 1998-99. The Apex Court found that it was unjust to direct after lapse of about 20 years to the Shivgan 10/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:58:00 ::: 905-WP-1104-11.odt employees to make a representation and to direct the employer to consider the said representations after such a long lapse of time. Therefore, the Apex Court directed re-consideration of claim of the employees to the promotional post only on the basis of the communicated remarks. Thus, in substance, the Apex Court directed uncommunicated remarks to be ignored while considering their case of the promotion.
9 In the order dated 28th August, 2018 in Civil Appeal No.32 of 2013, the Apex Court has issued similar directions regarding ignoring the uncommunicated adverse remarks perhaps in the light of its decision in the case of Prabhu Dayal (Supra). 10 Now coming back to the impugned order, the Tribunal was aware that the ACRs containing uncommunicated entries were very old. Perhaps influenced by this fact that the Tribunal directed that uncommunicated below bench-mark entries should be ignored. We must note here that Original Applications filed by the Shivgan 11/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:58:00 ::: 905-WP-1104-11.odt Respondents in the year 2008 were decided by the impugned order dated 29th July, 2010. During the pendency of the Original Applications, the decision of the Apex Court in the case of Dev Dutt (Supra) was pronounced. After the said decision was pronounced, during the pendency of the Original Applications, the Petitioners could have offered to consider representations of the Respondents against uncommunicated entries so that the issue could have been resolved. However, that was not done. Now we are dealing with the impugned order passed by the Tribunal in the year 2010 at the fag end of the year 2018. If we follow the course suggested by the learned counsel for the Petitioners, now Respondents will have to make representations against such old entries in ACRs from the years 1999-2000 till the years 2002-2003 and after the lapse of such a long time, it will be practically difficult for the Petitioners to deal with the representations made against the entries because the officers who made entries may not be available with the passage of time. 11 Impugned judgment and orders are subjected to Shivgan 12/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:58:00 ::: 905-WP-1104-11.odt challenge by invoking writ jurisdiction of this Court under Article 226 of the Constitution of India. The jurisdiction under Article 226 of the Constitution of India is discretionary and equitable. Even assuming that the learned counsel for the Petitioner was right in submitting that the directions in the case of Prabhu Dayal Khandelwal (Supra) were issued in the facts of the case by exercising the power under Article 142, it will be unjust and inequitable now to disturb operative part of the impugned judgment/order after lapse of considerable time thereby forcing the Respondents to make representations against the entries which were made 17 to 19 years back. In discretionary Writ Jurisdiction, it will be inappropriate to disturb the impugned judgment and order. It is, therefore, not necessary to decide the issue whether the directions contained in Prabhu Dayal (Supra) are in exercise of the powers conferred by Article 142 of the Constitution of India. 12 Suffice it to say that in the light of admitted position that Second Financial Upgradation was denied to the Respondents by Shivgan 13/14 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 29/12/2018 06:58:00 ::: 905-WP-1104-11.odt relying on very old uncommunicated below bench-mark remarks, no interference is called for in the impugned judgment and order. Hence, we pass the following order:
Writ Petitions are rejected. There will be no order as to costs.
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