Central Administrative Tribunal - Delhi
Inspector (Exe.) Anil Kumar vs Union Of India Through on 22 May, 2012
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.3897/2011
Reserved on : 11.05.2012
Pronounced on : 22.05.2012
Honble Mr.Justice S.C. Sharma, Acting Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Inspector (Exe.) Anil Kumar
No. D-I/600
S/o late Shri Kanwal Krishan,
R/o A-28, Type-III,
New Police Lines,
Kingsway Camp,
Delhi 110 009. .Applicant.
(By Advocate: Shri Ajesh Luthra)
Versus
1. Union of India through
Secretary (Home),
Government of India,
Ministry of Home Affairs,
North Block,
New Delhi.
2. Commissioner of Police,
Delhi Police,
MSO Building, I.P. Estate,
New Delhi.
3. Special Commissioner of Police,
Intelligence,
Delhi Police,
MSO Building, I.P. Estate,
New Delhi.
4. Joint Commissioner of Police,
Traffic,
Delhi Police,
MSO Building, I.P. Estate,
New Delhi.
5. Dy. Commissioner of Police,
Traffic (HQ)
Delhi Police,
Delhi.
6. Addl. Dy. Commissioner of Police (Estt.)
Delhi Police,
MSO Building, I.P. Estate,
New Delhi. Respondents.
(By Advocates: Mrs. P.K. Gupta)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Inspector (Executive) Anil Kumar, the applicant herein, has instituted the present Original Application under Section 19 of the Administrative Tribunals Acat, 1985 with following prayers:-
(i) Quash and set aside the impugned orders issued by Commissioner of Police, Delhi vide U.O. No.37102-104/CB-VII/PHQ dated 22.6.2011 as at Annexure A-1.
Direct the respondents to consider the applicant for promotion to the next higher rank of ACP by ignoring the below bench mark grading in the ACRs for the period from 1.4.2004 to 31.3.2005, 1.4.2005 to 7.3.2006 and 3.9.2007 to 25.2.2008 as the same were not communicated to the applicant when D.P.C. was held in 2008 for promotion in MHA.
Award the costs of the proceedings; and Pass any other or further order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. Brief facts of the case which are relevant to consider the applicants above prayer, would disclose the following:
The applicant joined as Sub Inspector (Executive) in Delhi Police on 29.06.1978 and was promoted as Inspector on 18.08.1994. He was posted in the New Delhi District from 16.06.2003 to 02.09.2007. During the period of 01.04.2004 to 31.03.2005 and 01.04.2005 to 07.03.2006 he was rated as Average in his ACRs by Smt. Anita Roy, the then Deputy Commissioner of Police, the Reporting Officer which was agreed to by Shri B.S. Brar, the then Joint Commissioner of Police, the Reviewing Officer. Further, while the applicant was posted in Crime and Railways as SHO, the ACR for the period 03.09.2007 to 25.02.2008 for the applicant was assessed as Good by the Reporting Officer but was downgraded to Average by Shri Satyendra Garg, the then Additional Commissioner of Police. It is the case of the applicant that he has received Outstanding or Good ratings in large number of ACRs during 10 years period from 01.09.1998 upto 31.03.2010 but only in the above 3 spells, he has been graded/downgraded as Average. Further, the applicant has received 75 Commendation Certificates with cash reward of Rs.35,900/- and a Commendation Roll with cash reward of Rs.3000/- in recognition of his hard work in the rank of Inspector. Due to the Average grading in the said 3 ACRs, it is alleged that his juniors were promoted as ACP vide Notification dated 19.01.2010 ignoring his claim. Being aggrieved, he approached this Tribunal in OA No. 1116/2010 which was decided on 25.02.2011 with direction to the respondents to communicate all those ACRs containing below bench mark grading between 2003-04 to 2007-08 to the applicant and on receipt of his representation thereon to consider the same and if the below bench mark grading is upgraded, the applicant would be considered for promotion by convening a review DPC. Pursuant to the above directions, the applicants representation for 3 ACRs was considered, he was heard in person by the Commissioner of Police and his representations were rejected vide order dated 22.06.2011 (Annexure A-1). Impugning the same, the applicant has now visited the Tribunal in the instant OA.
3. Shri Ajesh Luthra, learned counsel for the applicant would contend that the ACRs of the applicant prior to 01.04.2004 were either Outstanding or Good. Three ACRs where he has been graded/downgraded as Average should have been ignored by the DPC as the Reporting Officer was not available for offering his comments on the applicants representation. Shri Luthra submits that applicants case is covered by the judgment of Honble High Court of Delhi in Ranjana Kale versus Chief Economic Adviser and Another [WP(C) No. 13488/2009 decided on 01.07.2010] wherein it was held to ignore two ACRs which had below bench mark grading and both Reporting and Reviewing officers had retired from service. The said decision of the High Court was upheld by Honble Apex Court in SLP (Civil Appeal) No. 29929/2010 decided on 29.11.2010. Shri Luthra contends that Mrs. Anita Roy the Reporting Officer being not available for views on his representation, the concerned ACRs should have been ignored by the DPC. It was contended that the ACRs of the applicant prior to 1.4.2004 were Outstanding or Good. The ACRs of the applicant being below bench mark were causing obstacle for the DPC in his promotion. The procedure to be followed by the DPC was to ignore the ACRs with below bench mark grading not communicated to the applicant. The case for promotion should have been considered on the basis of 3 ACRs prior to 2004-05 as the below bench mark ACRs were not communicated to the applicant when the DPC was held. The Honble High Court of Delhi in Ranjana Kale Versus Chief Economic Adviser and Another [WP (C) No.13488/2009 decided on 01.07.2010] while modifying this Tribunals order dated 10.09.2009, observed that they should have been considered on the basis of 4 ACRs prior to 2004-05 and by taking into consideration the subsequent ACRs instead of directing him to make a representation and then wait for re-consideration that also by person who are no more in service inasmuch as at the time when the matter was taken up before the Tribunal even the initiating officer is no more in service. In the case of the applicant the initiating officer/reporting officer Mrs. Anita Roy, the then DCP/New Delhi was not in service when the case of the applicant was taken up and no comments could have been offered by her. Shri Luthra submits that the case of the applicant is fully covered with the above order of the Honble High Court of Delhi and also by the judgment of three Judges Bench of the Honble Apex Court in the case of Abhijit Ghosh Dastidar Vs. UOI & Ors. [2009-16-SCC-146]. Further, the Honble High Court of Delhi vide order dated 09.07.2010 in Writ Petition (Civil ) No. 4474/2010-UOI & Others versus V.P.S. Punia and Others has considered the similar matter and directed to follow the decision of the Honble Supreme Court of India in the case of Abhijit Ghosh Dastidar (supra). As the Average grading of the ACRs recorded by the Reporting Officer for the period from 1.4.2004 to 31.03.2005 and 1.4.2006 to 07.03.2006 were not communicated when the DPC met and the grading of Average having the effect of adverse remarks and the Reporting Officer having retired, these ACRs have to be ignored by the DPC. The Tribunal vide order dated 14.10.2009 in OA No. 1178/2009 O.P. Meena versus UOI & Others and order dated 12.04.2010 in OA No.2709/2009 Smt. Indrani Sarkar versus Secretary, Ministry of Defence & Others has observed similar views and directed the respondent Department to hold review DPC for consideration of the applicant for promotion by ignoring the un-communicated ACRs and considering the ACRs of preceding years. Further, the Tribunal vide order dated 25.08.2009 in OA No. 586/2009 Sh. Krishna Mohan Dixit versus Secretary, DOP&T and Others has observed that the importance of the case of Dev Dutt versus Union of India and Others [2008-8-SCC-725] is that the Honble Supreme Court has held that in case of civil servants, a grading in the ACRs below the prescribed benchmark would be considered to be an adverse entry. This is precisely the principle, which the judgment has established. Shri Luthra, therefore, urges to direct the respondents to hold review DPC by ignoring all three ACRs and considering equal number of previous ACRs and to hold a review DPC to consider his promotion with effect form the date his junior was promoted.
4. Opposing the grounds taken in the OA, the respondents have filed their reply affidavitn on 12.01.2012 through learned counsel Mrs. Pratima K. Gupta. She submits that as per the 1st respondents letter dated 20.07.2009, an eligibility list of Inspectors was sent for consideration to fill up ACP posts in DANIPS for the year 2009. Applicants name was part of the list but he was found unfit by the DPC as it noted 3 ACRs of the applicant as below benchmark grading. As per the direction of the Tribunal in its order in OA No. 1116/2010, those three ACRs were conveyed to the applicant and on consideration of his representation along with the comments of the Reporting Officer/Reviewing Officer the competent authority rejected the same. It was stated that Smt. Anita Roys views couldnt be obtained as she retired by that time. The Reviewing Officer heard the applicant before sending his comments. It is contended that DOP&T OM dated 13.04.2010 on the subject of communicating the below benchmark and downgraded ACRs is not applicable in the present case. She submits that the applicant was warned verbally many time regarding investigation of cases, handling of complaints and supervision of the police station besides complaints of non-registration or late registration of cases for which reasons the grading of Average was given to the applicant. With regard to the ACR for the period from 03.09.2007 to 25.02.2008, it is stated that the competent authority received the views of the then Reporting and Reviewing Offices, heard the applicant and decided to reject his representation which was communicated to him vide UO dated 22.06.2011. Mrs. Gupta submits that though the impugned order is brief one but the 2nd respondent has passed a detailed order in the relevant file which was shown to us during the hearing.
5. In the rejoinder filed on 03.02.2012, the applicant has given a comparative gradation list to show that he has received Outstanding and Very Good rating in many ACRs from 1.4.1998. It is stated that the hearing granted by the 2nd respondent on the downgraded ACRs for the period 03.09.2007-25.02.2008 is only a post-decisional hearing to justify the unjustified work. He has also submitted that he has not been verbally warned ever during the said period.
6. Having carefully considered the contentions of the parties, we are unable to accept the reasons given by the counsel for the respondents. We perused the orders of the competent authority in the relevant file. We could not find when the applicant has been warned verbally and by whom for what misconducts. Downgrading of the ACR for the period 03.09.2007 to 25.02.2008, from Good to Average no specific and convincing reason has been given by the Reviewing Officer in the said ACR. All the reasons so given relate to the remarks on the representation. Thus, the downgraded rating of Average should be ignored.
7. We may advert to the below benchmark gradings in two other ACRs. In this context, we refer to the well settled proposition in law to ignore the ACRs when the un-communicated ACRs are conveyed to receive representations and either Reporting or Reviewing Officers is not available to offer remarks.
8. In a recent judgment of the coordinated bench of this Tribunal in the matters of Amresh Kumar Tripathi, Versus Union of India, and others (O A No.1268/2011 decided on 06.3.2012) the respondents were directed to reconsider the case of the applicant for promotion to SAG, ignoring the ACRs for the years 2004-05, 2005-06 and 2006-07 by constituting a review DPC and in the event of the applicant being found fit, he would be given promotion from the date of his junior and as a consequential benefit, the applicant would be given notional pay fixation and seniority but not back wages or arrears on that account. Brief facts of the case need elaboration as the present case has more or less similar facts. The applicant in the said OA, a member of Group A Indian Railway Service of Signal Engineers (IRSSE) was aggrieved for the denial of Senior Administrative Grade to him, even though his batch-mates including some juniors were granted the benefits on 6.3.2009 despite the applicant fulfilling the prescribed eligibility conditions due to the ground that he had below bench mark ACRs for the years 2004-05, 2005-06 and 2006-07. After hearing the rival parties on limitation and on merits the Tribunal noted that the respondents vide their order dated 5.1.2011 had rejected the applicants representation against the below bench mark grading. For all these years, the applicant had been assessed with the final grading of Good against the bench mark of Very Good. However, it was found that the Reporting, Reviewing and Accepting authorities were not in service due to superannuation / voluntary retirement or demise. In these circumstances, the incumbent General Manager at the time of consideration of the representation had taken a view after verifying the targets and achievements mentioned in the ACR and the representation was rejected. At the time of consideration of the representation of the applicant, the rejection of the respondents could not be held as valid in law. Reference was made to the judgment of Honble Apex Court in Dev Dutt versus Union of India and Others[2008-8-SCC725]; Abhijit Ghosh Dastidar versus UOI & Ors reported in (2009) 16 SCC 146; and judgment of this Tribunal in V.K. Singal vs UOI & Ors [OA 3524/2009 decided on 17.12.2009], the decision in Ranjana Kale vs Chief Economic Adviser & Anr as upheld by the Delhi High Court in the WP (C) No. 13488/2009 vide its order dated 1.7.2010. The said decision attained finality as the SLP No. 29929/2010 filed by the UOI got dismissed vide the Apex Courts order dated 29.11.2010, and the decision in Sunil Mathur vs UOI case, as upheld by the Delhi High Court vide its order dated 26.7.2010 in the WP (C) 4880/2010. In this case also the Special Leave to Appeal (Civil) No.7623/2011 filed by the UOI was permitted to be withdrawn in view of the Apex Courts judgment in Abhijit Ghosh Dastidars case (supra).
9. In all these cases, the view taken was for ignoring the adverse/ below bench mark ACRs where the Reporting/Reviewing Authorities had retired. The present case for our consideration comes within the ambit of the above judgments in so far as two ACRs (01.04.2004 31.03.2005 and 01.04.2005-01.03.2006) are concerned as the Reporting Officer of both ACRs has retired. The respondents have not shown any law contrary to the above ratio decidendi of Honble Apex Court which are binding on us. In view of the above, we are of the considered view that DPC/Review DPC must ignore these two ACRs and take into account two ACRs of previous years into consideration of the applicants case for promotion to ACP.
10. Having carefully considered the respective submissions and totality of facts and circumstances of the case, and guided by the judgments of the Tribunal, Honble High Court and Honble Apex Court ignoring of adverse / below bench mark ACRs where the Reporting Officer was no more in service, and the impugned orders being non-speaking and non-reasoned order we are of the considered view that the applicant succeeds in this OA.
11. Resultantly, the OA is allowed in terms of the following directions (i) the impugned order dated 25.06.2011 is quashed (ii) the respondents are directed to ignore the ACRs for the period, consider and decide the applicants representation against the down graded ACR for the period as per law, (iii) the respondents are further directed to reconsider the case of the applicant for promotion to ACP by constituting a review DPC and (iv)in the event of the applicant being found fit, he would be given promotion from the date his junior got promotion and, the applicant would be given the consequential benefit by way of notional pay fixation and seniority but not back wages or arrears. The directions as ordained above would be complied with as expeditiously as possible but positively within a period of 3 months from the date of receipt of a copy of this Order. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (S.C. Sharma)
Member (A) Acting Chairman
/naresh/