Central Administrative Tribunal - Allahabad
(U/S 19 vs Union Of India Through General Manager on 4 March, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
(ALLAHABAD THIS THE 4th DAY OF MARCH, 2013)
Present
HONBLE MS. JAYATI CHANDRA, MEMBER (A)
HONBLE MS. JASMINE AHMED, MEMBER (J)
Original Application No.1409 OF 2008
(U/S 19, Administrative Tribunal Act, 1985)
Rajiv Seth, S/o Late Raman Lal Seth,
R/o Bungalow No.129, Opposite Loco Ground,
Dairy Railway Colony, Near Kanji House,
Gorakhpur.
Presently working as Assistant Commercial Manager, N.E. Railway, Varanasi.
Applicant
V E R S U S
1. Union of India through General Manager, North Eastern Railway, Gorakhpur.
2. Chief Personnel Officer, North Eastern Railway, Gorakhpur.
3. Deputy Chief Personnel Officer (Gaz.) North Eastern Railway, Gorakhpur.
4. Secretary, Railway Board, Rail Bhawan, New Delhi.
5. Dr. V.K. Singh, S/o Late Kamla Singh, Area Manager, North Eastern Railway, Gorakhpur.
6. Shri Naval Kishore Singh, S/o Not Known,
Presently working as Divisional Commercial Manager, E.C. Railway, Danapur, (Bihar).
..Respondents
Advocates for the Applicant:- Shri S.K. Om
Advocate for the Respondents:- Shri S.K. Anwar
O R D E R
(DELIVERED BY HONBLE MS. JASMINE AHMED, MEMBER (J))
1. In this Original Application filed under Sec.19 of the Administrative Tribunals Act, 1985, the applicant has impugned the orders dated 05/07/2007 (page 36) whereby he has been intimated that even after holding the Review DPC as directed by this Tribunal earlier in OA No.558/1998, he was not found fit for inclusion of his name in the panel for promotion to the post of Assistant Commercial Manager, Group B, which was initially published vide GM (P)s letter No. E/254/4-Comml/Selection/96(I) dated 27/04/1998. The applicant has also impugned the order dated 01/01/2008 (page 38) whereby his appeal against the findings and recommendations of the Review DPC has been rejected. The validity of the said two orders has been questioned in this OA with all consequential benefits.
2. This being the second round of litigation, there is no disputed question on facts. The pleadings in this case are voluminous consisting of the OA filed by the applicant, Counter reply filed by the respondents, Rejoinder filed by the applicant, Reply to rejoinder reply filed by the respondents, Supplementary rejoinder reply filed by the applicant, Reply to supplementary Rejoinder Reply filed by the respondents. However, the relevant facts are very limited and are as follows.
3. The applicant was initially appointed as Commercial Apprentice on 14/03/1991 in North Eastern Railway, Gorakhpur and was confirmed as Senior Commercial Inspector on 19/06/1993. Thereafter, the applicant was selected and promoted as Senior Commercial Inspector on 14/02/1996. In November/December, 1996, the respondents issued an advertisement/notice for filling of 3 general posts of Assistant Commercial Manager, Group B, under 30% LDCE quota. As per rules and instructions in vogue, the selection process consisted of (i) written test consisting of two professional papers of 150 marks each (ii) medical examination (iii) record of service and viva voce test of 25 marks each. In pursuance to the said notification a written test was held on 21/12/1997 and the applicant qualified the same alongwith respondent Nos. 5 and 6 vide result dated 17/03/1998. It may be noted here that the applicant had secured the highest mark in the said written examination. Thereafter, the applicant was declared medically fit. However, in record of service, the Selection Board/DPC examined the ACRs of the applicant for the years 1993-94, 1994-95, 1995-96 and 1996-97 and awarded him 17.5 marks as per the rules and norms prevalent for the said purpose. The selection Board/DPC also awarded 06 marks to the applicant in the Viva Voce test which is meant for assessing personality addresses, Leadership qualities etc. Thus, even though, the applicant had secured the highest mark in the written test, he was not empanelled whereas the respondent nos.5 and 6 were empanelled vide GM (P)s letter No. E/254/4-Comml/Selection/96(I) dated 27/04/1998.
4. With the aforesaid factual background, the applicant filed OA No. 555/1998 before the Allahabad Bench of CAT. In the said OA he had made two grievances (i) his ACR for the year 1996-97 could not have been considered and (ii) the Viva Voce test was held in the most arbitrary manner without following the instructions on the subject. The said OA was finally allowed vide judgement/order dated 10/10/2002 with the direction to hold a review DPC by excluding ACR for the year 1996-97. It may be noted here that the ACR of the applicant for the year 1996-97 was an Average ACR and thus by consideration of the said ACR the applicant had been prejudiced. The official respondents filed Writ Petition No. 6216/2003 against the said judgement before the Honble Allahabad High Court. By order dated 23/03/2007, the Honble Allahabad High Court dismissed the Writ Petition upholding the judgement and order of the Tribunal.
5. After the dismissal of the Writ Petition, the official respondents held a Review DPC on 28/06/2007 wherein the applicants record of service was assessed by excluding the ACR for the year 1996-97 and was awarded 21.6 marks in the record of service. However, the Review DPC did not make any change in the marks awarded to the applicant in viva voce meant for assessing personality, Leadership qualities etc. Thus, in record of service and viva voce together, the applicant secured only 28 marks whereas the qualifying mark is 30. The applicant fell short of 2 marks and thus was not recommended for inclusion in the original panel for promotion. Subsequently by impugned orders dated 05/07/2007 and 01/01/2008 were issued as already noted above. The validity of the said two orders are to be adjudicated in this case.
6. We have heard Shri S.K. Om, Advocate for the applicant and Shri S.K. Anwar, Advocate for the respondents 1 to 3. None represented Respondent No. 4 inspite of service. But we may note that Respondent No. 4 is Railway Board. Thus, the stand of Respondent Nos. 1 to 3 must be taken as the stand of Respondent No. 4 as well. As far as Respondent No. 5 and 6 are concerned Registered Notices were sent to them in the year 2009 which have not been received back but none appeared on their behalf. With the assistance of both the learned Advocates for the applicant and official respondents, we have perused the voluminous pleadings and examined the documents filed with the pleadings.
7. Shri S.K. Om, the learned counsel for the applicant has argued with considerable vehemence that the Review DPC committed an illegality in not reviewing the viva voce (meant for assessing personality, Leadership qualities etc.) marks in view of the exclusion of ACR of the applicant for the year 1996-97. According to him the viva voce test is meant to assess personality address, Leadership and Academic/Technical qualification which has to be done on the basis of assessments already available in the various columns of the ACR as circulated to Railways etc. in the Boards letter dated 22/04/1987 and 23/02/1988. In this regard he has drawn our attention to Annexure RA-9 at page 56 of the Rejoinder Reply which is circular of Railway Board dated 04/03/1998 urging the Railways to assess the personality, Leadership qualities etc. based on the assessment already available in the various columns of ACRs under consideration. According to Mr. Om, had that been done by the Review DPC, the marks awarded to the applicant in viva voce would have increased from 06 to a much higher figure. He has also drawn our attention to the ACRs of the applicant for the years 1993-94, 1994-95 and 1995-96 which alone were considered by the Review DPC. Copies of all the said ACRs have been put on record by the applicant alongwith his Rejoinder. In all such ACRs, the applicant has been assessed as either Outstanding or Very Good on special attributes consisting of leadership qualities etc. Thus, it is the contention of Shri Om that if the said ACRs are read with the Railway Boards circular dated 04/03/1998, the applicant would have secured much more marks than 06 marks which had been awarded to the applicant by the original DPC and not revised by the Review DPC. On this count, the decision of the Review DPC is totally perverse and incongruous with the relevant records. Besides, Shri Om has urged that the Review DPC has only noted the higher educational qualification of having passed Intermediate in Chartered Accountancy but has not awarded any mark for the same. He has also pointed out that the original DPC had not even noticed this higher qualification of the applicant, what to talk of awarding marks for the same. He has made many other submissions, which in our opinion are not germane to the issue involved in the present case.
8. Shri S.K. Anwar, the learned counsel for the respondents with equal vehemence has contended that in the earlier judgement/order dated 10/10/2002 in OA No. 555/1998, this Tribunal had directed to hold a Review DPC only to review the case of the applicant by excluding his ACR for the year 1996-97. Though the official respondents challenged the same in a Writ Petition before the Honble Allahabad High Court, the same was dismissed. Thus, the judgement of the Tribunal has attained finality and the respondents have implemented the same fully and the orders which have been impugned by the applicant were passed as the applicant was still short of 2 marks to achieve the qualifying mark in the record of service and viva voce together. On the contention of the applicant that the Review DPC did not review the marks awarded to the applicant in the viva voce is concerned, Shri Anwar has disputed the same. He has stated that even on review of viva voce marks, the Review DPC did not find it proper to disturb the marks already awarded by the original DPC. In this regard, he has drawn our attention to para 25 of his counter reply wherein it has been averred by the official respondents as follows:
It is incorrect to say that the respondents did not review the personality, address and leadership of the applicant as the same have been considered by the review DPC. Thus, the stand of the official respondents is that even on review, it was not thought fit to increase the marks of the applicant on account of viva voce/ personality, Leadership addresses and Educational and Technical qualification eventhough there was a change in the consideration of the ACR of the applicant. Shri Anwar has further contended that the Educational qualification of Intermediate Pass in Chartered Accountancy has been considered by the Review DPC as is evident from the minutes of the Review DPC proceedings which is on record of this case. In addition, Mr. Anwar has argued that the whole contention of the applicant now in the second round of litigation is barred by principles of Res-judicata and goes much beyond the scope of the OA No. 555/1998 and the directions of this Tribunal in the said OA. This cannot be permitted. In this regard he has relied upon the judgement of the Honble Supreme Court in S. Nagaraj Vs. B.R. Vasudeva Murthy: (2010) 3 SCC 353. He has also relied upon Dalpat Abasaheb Solunke etc. Vs. B.S. Mahajan etc.: AIR 1990 SC 434 to contend that this Tribunal cannot sit in appeal over the assessment made by the Review DPC.
9. In view of the above rival contentions, the sole issue that arises for determination in the instant OA is whether on the basis of the applicable rules and instructions the assessment of viva voce/ personality address, Leadership etc of the applicant by the Review DPC can be interfered with. Further whether the Review DPC has committed any illegality in not awarding marks for the higher educational qualification of the applicant having passed Intermediate in Chartered Accountancy. To examine these issues it would be necessary to examine the duties and functions of DPC/Review DPC etc. in service jurisprudence in general and with reference to the rules and instructions in the instant case in particular.
Duties and Functions of DPC/Review DPC/Selection Committee etc in service law:
10. It may be noted that in every service, DPC or Review DPC or Selection Committee, as it is variously called in service jurisprudence, are constituted under powers derived from relevant statutory rules applicable to the particular service. Very often the procedure and methodology of such DPCs/Review DPCs/Selection Committee etc are prescribed by various circulars and instructions. As long as such circulars and instructions are not contrary to any of the provisions of statutory rule, such circulars and instructions would be equally binding on the DPCs/Review DPCs/Selection Committees as much as the statutory rules themselves. At this juncture, we may take note of the latest judgement of the Honble Supreme Court on the duties and functions of such DPCs/Review DPCs/Selection Committees etc. in the case of Centre for PIL & Another Vs. Union of India & Anr: (2011) 4 SCC 1. In the said case the Honble Supreme Court was dealing with the Selection Committee in respect of selection to the post of Central Vigilance Commissioner. After noting that the power to appoint a Selection Committee is derived from the relevant statute, the Honble Supreme Court laid down the law as follows (only relevant extracts):
36. For the sake of brevity, we may refer to Selection Committee as the High-Powered Committee. The key word in the proviso is the word recommendation. While making recommendation, the HPC performs a statutory duty. The impugned recommendation dated 03/09/2010 is in exercise of the statutory power vested in HPC under the proviso to Section 4(1). The post of Central Vigilance Commissioner is a statutory post. The Commissioner performs statutory functions as enumerated in Sec. 8. The word recommendation in the proviso stands for an informed decision to be taken by the HPC on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the 2003 Act.
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42. .What we have to see is whether relevant material and vital aspects having nexus to the object of the 2003 Act were taken into account when the decision to recommend took place on 03/09/2010.
43. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. (see SCC para 88 of N. Kannadasan). The decision to recommend has got to be an informed decision keeping in mind the fact that the CVC as an institution has to perform an important function of vigilance administration. If a statutory body like the HPC, for any reason whatsoever, fails to look into the relevant material having nexus to the object and purpose of the 2003 Act or takes into account irrelevant circumstances then its decision would stand vitiated on the ground of official arbitrariness (see State of AP v. Nalla Raja Reddy).
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63. As stated above, we need to keep in mind the difference between judicial review and merit review. As stated above, in this case the judicial determination is confined to the integrity of the decision-making process undertaken by the HPC in terms of the proviso to Section 4(1) of the 2003 Act. (underlines supplied for emphasis) From the above decision it is apparent that the DPC/Review DPC/Selection Committees under various service rules perform a statutory duty. They are under an obligation to consider all relevant material and if such material is ignored then the recommendation of such committee would be vitiated. Further, if the recommendation of the DPC/Review DPC is apparently shown to be an uninformed recommendation, then also the same is liable to be vitiated. While examining the proceedings of the DPC/Review DPC/Selection Committee, the competent courts are entitled to examine the integrity of the decision making process.
Applying the Law on DPC/Review DPC to the facts of the present case:
11. Applying the above law, to the facts of the present case we find that the power to promote to Group B posts is vested in the General Manager on the basis of a panel recommended by a Selection Board by Sec. 210 of the Indian Railway Establishment Code Vol. I. It is not in dispute that the IREC Vol I is statutory in nature having been framed by the President under proviso to Art. 309 of the Constitution of India. Besides, under various provisions of Indian Railway Establishment Manual, the selection process is conducted. It is no more open for debate that the Indian Railway Establishment Manual has statutory force [see Union of India Vs. Devram & Anr; (2009) 16 SCC 381 & Railway Board Vs. P.R. Subramaniyam: (1978) 1 SCC 158]. Thus, whether it was the original DPC held in 1998 or the Review DPC held on 28/06/2007, the same was discharging a statutory duty as held by the Honble Supreme Court. It is further not in dispute that the Railway Boards circular dated 04/03/1998 enjoins upon the Railways to assess viva voce for personality address, Leadership and Academic/Technical qualification on the basis of assessment already available in the Confidential Reports of the concerned employee. This circular was only reiterating the earlier circulars on the subject dated 22/04/1987 and 23/02/1988 as is stated in para 3 of the said circular. It is also not in dispute that the applicant has been assessed as Very Good on all five special attributes Qualities of Leadership, Capacity to take decisions on matters within his/her competence, willingness to shoulder higher responsibility, ability to inspire confidence, guide, motivate, and obtain the best out of the staff, and ability to enforce discipline - for the year 1993-94. For the year 1994-95, on all the said attributes, the applicant has been adjudged as Outstanding. Similarly for the year 1995-96, he has been adjudged as Outstanding. In such a factual background, if we examine the integrity of decision making of the Review DPC held on 28/06/2007 in respect of marks awarded to the applicant in viva voce meant to assess personality, Leadership etc as 06 out of 25, it certainly appears perverse and absurd. Here we may not lose sight of the fact that the applicant has secured the highest mark in the written test also. Besides, it is rather surprising that the Review DPC has only noted that the applicant has passed Intermediate in Chartered Accountancy but has not given any numerical mark for the same. It sounds to reason that for a post of the level of Assistant Commercial Manager, Group B, the educational qualification of Intermediate pass in Chartered Accountancy is an added qualification. Thus, we have no hesitation in holding that the Review DPC held on 28/06/2007 has faulted on both the aforesaid counts. We may here only note that the applicant is falling short of only 2 marks for empanelment inspite of having secured the highest mark in the written test for professional ability.
12. Before we conclude, we must examine the contention of Mr. S.K. Anwar regarding resjudicata and the prayers of the applicant in the instant case being beyond the scope of the judgement/order dated 10/10/2002 of this Tribunal in OA No. 555/1998. We must note here that res-judicata is a rule by virtue of which issues already finally adjudicated and decided between the parties are not allowed to be re-opened. Now, in this case can it be said that any issue had been finally decided between the parties? The answer is an emphatic No. In the judgement of the Tribunal dated 10/10/2002 we notice that the contention of the applicant about the arbitrariness in assessing viva voce test meant for personality and Leadership qualities etc has been noted. But the OA was allowed on the ground that one ACR of the year 1996-97 could not have been considered for valid reasons. There was no occasion for the Tribunal to adjudicate other issues raised therein. There was no need for such adjudication by the Tribunal either. Further, when the Tribunal directed to exclude the ACR for the year 1996-97, there was a change in the material to be considered for assessment of viva voce of personality address, Leadership etc. in view of the specific circular of the Railway Board already referred to above. Thus, in a way considering the case of the applicant in accordance with all applicable rules and circulars was implicit in the said order dated 10/10/2002 of the Tribunal. Thus, in the circumstances, the judgement S. Nagaraj Vs. B.R. Vasudeva Murthy: (2010) 3 SCC 353 cited by the respondents does not help them. Thus, we reject the contention of resjudicata in this case. We are fortified in this view by the judgement of Delhi High Court of Honble Justice Dalveer Bhandari (as he then was) in the case of Vrat Paul Gupta Vs. Board of Governors (IIT) Delhi: ILR (1995) 2 Del 361 (para 52). Further, we have also not made any merit assessment in this case. We have only examined the integrity of the decision making process of the Review DPC which is permissible in judicial review. Thus, the other judgement cited by the respondents Dalpat Abasaheb Solunke etc. Vs. B.S. Mahajan etc.: AIR 1990 SC 434 is of no help to them.
13. Besides, we may note here that the applicant had made a complaint about the arbitrariness in marking in the original DPC. The same was investigated into by the vigilance branch of the official respondents. The applicant has been supplied a copy of the same by hiding the names of the officials who investigated into the matter. The applicant has placed the said document alongwith his Supplementary Rejoinder Reply as Annexure SRA-4. In the said report it has been held that there was large scale irregularity in the marking given by the members of the original DPC. However, inspite of the said report, the Railway Board has recommended closure of the case by observing that all members of the original DPC have already superannuated long back I.e. more than 4 years back. Thus, no disciplinary action could be initiated against them now in view of specific provision in the Pension Rules. While, we do not want to comment on the same, it is apparent that even the investigations conducted by the official respondents themselves have arrived at the conclusion that the members of the original DPC were not fair to the applicant. In such a situation should the applicant be allowed to suffer? We can only remember the great saying of Martin Luther King Jr., Injustice anywhere is a threat to justice everywhere. This great saying has been guiding light in solving many legal issues. We have no hesitation in following the said guidelines in this case as more than 14 years have passed since the applicant has been fighting for justice since 1998 when he filed his first OA. He has already been made to contest in the High Court. And even after 14 years the fruits of his first case have not reached him. In the circumstances, denying him justice at this distant point of time would amount to spreading injustice.
Conclusions and directions:
14. In view of the above discussion, we find merit in the OA. The OA is therefore allowed. The impugned order of the respondents dated 05/07/2007 and 01/01/2008 are quashed and set aside. It is further declared that the proceedings of the Review DPC dated 28/06/2007 is faulty on the aforesaid two counts of not reviewing the marks of the applicant in Viva Voce/personality, Leadership etc in the light of the Railway Boards circular dated 04/03/1998 and non-awarding of marks to the applicant for his having passed Intermediate in Chartered Accountancy. The respondents 1 to 4 are directed to reconvene the meeting of the Review DPC and cure the aforesaid two faults in the light of the above discussion and in accordance with law. On such reconsideration on the said two counts, if the applicant is found fit for empanelment, then he shall be so empanelled and appointed as Assistant Commercial Manager, Group B in pursuance to the original advertisement of 1996 with all consequential benefits. The respondents are directed to fully comply with the above directions within a period of 4 months from the date of receipt of a certified copy of this order. Parties are left to bear their own costs.
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