Central Administrative Tribunal - Delhi
Ashok Golas (Staff No.00386) vs Union Of India on 3 June, 2009
Central Administrative Tribunal Principal Bench OA No.1553/2008 New Delhi, this the 3rd day of June, 2009 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Ashok Golas (Staff No.00386), Indian Telecommunication Service Group A, Chief General Manager Telecom, Bharat Sanchar Nigam Limited, 101-A, Mount Kailash, New Delhi 110 065. Applicant (By Advocate: Shri Shishir Pinaki) V E R S U S 1. Union of India Through Secretary, Department of Telecommunications, Ministry of Communications & IT, Government of India, Sanchar Bhavan, 20, Ashok Road, New Delhi-110 001. 2. The Member (Services) Department of Telecommunications, Ministry of Communications & IT, Government of India, Sanchar Bhavan, 20, Ashok Road, New Delhi 110 001. 3. The Chairman & Managing Director Bharat Sanchar Nigam Limited Government of India Undertaking (Under Department of Telecommunications, Ministry of Communications & IT, Government of India) Third Floor, Bharat Sanchar Bhavan, Janpath, New Delhi 110 001. 4. The Secretary Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi 110 069. 5. The Establishment Officer & Additional Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, Government of India, Room No.115, North Block, New Delhi 110 001. 6. Shri A. K. Sinha (Ex. Chairman & Managing Director, BSNL) A-605, Saheteja Apartments, Sector IV, Plot 30, Dwarka, Delhi. 7. Shri S. C. Chaudhary, (Ex. Director (Operations), BSNL Board) House No.C-246, Sarita Vihar, New Delhi 110 076. 8. Shri Dilip Sahay, (Ex. Senior Deputy Director General, TEC, Department of Telecommunications, Ministry of Communications & IT), Government of India, House No.185, Vasant Enclave, New Delhi 110 057. 9. Shri N. K. Mangla, (Ex. Senior Deputy Director General, TEC, Department of Telecommunications, Ministry of Communications & IT, Government of India, House No.526, Sector 14, Faridabad (Haryana) 10. Shri Rajendra Kumar Gupta (Ex. Chief General Manager Telecom, UP (West) Telecom Circle, BSNL) B-302, Bhagirathi Apartments, 11, Old Survey Road, Dehradun (Uttarakhand)-248 001. 11. Shri Ashok Kumar Bhandari (Ex. Chief General Manager Telecom) Gujarat Telecom Circle, BSNL, D-104/1, Meera Marg, Bani Park, Jaipur (Rajasthan) 302 016. 12. Shri Rakesh Agarwal Ex. Adviser (Technology) Department of Telecommunications, Ministry of Communications & IT, Government of India, House No.273, Sector 14, Gurgaon (Haryana) 122 001. 13. Shri V. K. Shukla Adviser (Operations) Department of Telecommunications Ministry of Communications & IT, Government of India, Sanchar Bhavan, 20, Ashok Road, New Delhi 110 001. Respondents (By Advocate : Shri Rajesh Katyal for Respondent No.1,2&5, Mrs. Brinda Rana for Mrs. Meenu Sharma for UPSC and Shri Rajnish Prasad counsel for Respondent No.3) : O R D E R : Honourabla Dr. Ramesh Chandra Panda, Member (A) :
Shri Ashok Golas, the Applicant herein, belongs to the Indian Telecom Service (ITS in short) appointed in December 1972 in the Department of Telecommunication (DOT in short), Government of India (GOI in short). He had moved this Tribunal twice before in OA No.1590/2007 and again twice in OA No.740/2008. This is the 5th visit of the Applicant to the Tribunal. His main grievance is that he has not been promoted to the level of Adviser and subsequently to the post of Member, Telecom Commission in DOT. Having been aggrieved by the decision of the Respondents not to promote him, he has come up with the prayers (i) to quash the CRs pertaining to the years 2000-01, 2001-02, 2002-03 & 2003-04 (including the secret note regarding integrity) and a No report certificate be recorded for each of these years and placed in the CR dossier; (ii) to direct the Respondents to destroy the un-reviewed copy of the ACR for the year 2004-05 and to keep the reviewed copy of the ACR for the year 2004-05 after quashing the remarks including the grading given by the Reporting Authority; (iii) to quash the panel recommended by the Departmental Promotion Committee in its meeting held on August 17 2006 and the order no.317-6/2002-STG-III dated December 28, 2007 and direct the Respondents to promote the Applicant to the grade of Adviser, DOT w.e.f. December 28, 2007; (iv) to direct the Respondents not to fill up any vacancy of Adviser and Member, Telecom Commission in DOT till the matter is finally adjudicated; (v) to direct the Respondents to conduct an inquiry to fix responsibility for delinquent acts of the Reporting /Reviewing /Accepting Authorities responsible for reporting/ reviewing/ accepting of CRs and fix the responsibility for delinquent acts in the fraudulent interpolation of the ACRs in the Applicants CR dossier and (vi) all other consequential benefits with cost..
2. Before we advert to the issues involved in the OA, we capture here the factual matrix of the case. The Applicant joined the ITS on 11.12.1972 and has been getting his regular promotion and reported to have the distinguished career spanning over 36 years in Government. His last promotion was on 25.10.2002 to the Higher Administrative Grade (HAG in short) of ITS. So long he has received his promotions in turn without any junior superceding him. Since 28.02.2003, he has been serving on deemed deputation basis in Bharat Sanchar Nigam Limited (BSNL, in short) coming under the control of DOT. In August, 2006 the Applicant came to know that he was not found fit to be promoted to the grade of Adviser in ITS by the Departmental Promotion Committee (DPC, in short) in its meeting held on 17.08.2006. He submits that the Annual Confidential Report (ACRs, in short) may be blocking his career progression and, as such, he approached authorities in DOT through his representation on 18.09.2006 (Annexure A/1 to A/11), requesting the Respondents to promote him to the grade of Adviser in ITS and also requesting them to cancel the Panel drawn by the DPC, besides requesting them to convene a Review DPC after quashing his 2 ACRs for the year 2003-04 and 2004-05, which were considered by the DPC. He submits that those ACR were technically deficient and were in violation of instructions issued by the Department of Personnel and Training (DOPT in short). Subsequently, he came to know that Union Public Service Commission (UPSC in short) conducted the DPC on August 17, 2006 to consider the promotion of the officers belonging to ITS to four vacant posts of Adviser in DOT. He submits that his integrity certificate was subsequently modified and included along with the names in the list of Officers of doubtful integrity. This was done, he avers, with malafide intention, few hours before the meeting of the DPC. Annexure A/13 and A/14 are the original and revised integrity certificates respectively. The Applicant submits that his representations to the Government of India on 18.09.2006, 16.01.2007, 26.03.2007 and 25.06.2007 remained unanswered by the Respondents. He alleged that since the Respondents adopted delaying tactics, the Applicant filed an application before this Tribunal (OA No.1590/2007) on September 5, 2007. The Tribunal after considering the case passed order dated 11.10.2007 directing the Respondent Nos.1 & 2 to dispose of the pending representations of the Applicant and also to treat the said OA as supplementary representation by a detailed and speaking order to be passed within one month from the date of receipt of copy of the said order. Since the said direction of this Tribunal was not complied with by the Respondents, the Applicant moved a Contempt Petition (CP No.468/2007) on December 18, 2007 and consequently the Respondent Nos.1 & 2 passed the order dated 8.01.2008, rejecting the representations of the Applicant. He came to the Tribunal again in OA No.740/2008 filed on April 2, 2008. The Tribunal considering the case passed order dated 9.04.2008 that as it is very difficult to appreciate the controversy without finding out as to what adverse remarks has been contained in the ACRs of the Applicant and in what manner, we find no choice in the matter but to direct the Respondents to make available to the Applicant copies of ACRs forthwith (emphasis supplied). Since April, 2008 when the order was passed by this Tribunal, the Official Respondents did not take immediate action, as a result of which, the Applicant moved a Contempt Petition (CP No.162/08) on April 28, 2008 and ultimately, the Respondents made available to the Applicant copies of his ACRs only on May 2, 2008. On receipt of the ACRs by the Applicant, he has come before this Tribunal for 5th time with a request and prayers as indicated within.
3. On directions of this Tribunal, the Respondents furnished ACRs and Confidential File of the Applicant. The Respondent UPSC submitted the Minutes of the DPC held for Advisers grade of ITS along with theFile No.F-1/34(177)2005-AP13.
4. We have heard Shri Shishir Pinaki, the Learned Counsel for the Applicant and Shri Rajesh Katyal, Smt. Brinda Rana for Ms. Meenu Sharma and Shri Rajesh Prasad, the Learned Counsel for the Respondents and perused the pleadings. Besides, very closely we went through the ACRs of the Applicant, the Minute of the DPC and the UPSC file in the subject.
5. The main contentions of Shri Shishir Pinaki, counsel for the Applicant are (i) the Applicants Annual Confidential Reports having not been reviewed should be treated as incomplete, (ii) since the ACRs for 2003-04 and 2004-05 there are fraudulent entries by the Reporting Officers whereby the Applicant has got below bench mark grading should be deleted from the Applicants ACR Dossier, (iii) in the ACR for the year 2003-04, the Reporting Officer has recorded about a secret note in his remark on 11.10.2004. It is alleged that the CMD, BSNL has taken more than 3 years to get those notes properly investigated. Since the entry and the note against the integrity column of the Applicant for 2003-04 is standing on his way for promotion, this entry should be deleted and the appropriate benefits be given. (iv) It is also argued that CMD can be the Reviewing Authority and has rightly recorded his comments in the Applicants ACR for the period 7.7.2004 to 31.3.2005. .(v) There is a second set of ACR for the said period which has not been reviewed and the should bedestroyed. (vi) The Respondents did not produce the reviewed ACR for that period to the DPC and produced only the ACR written by the Reporting Officer which grades him as Average , as a result of which he could not get 4 Very Good out of 5 for becoming Fit in the DPC for promotion to the post of Adviser. It is, therefore, contended that the non reviewed ACR for the year 2004-05 should not be kept in the folder and destroyed. (vii) He also contended that for the fraud committed by belated submission of ACRs of the Applicant amounts to misconduct and the concerned authorities responsible for the same need to be dealt with according to the rules. (viii) He also drew our attention to the DPE Guidelines for annual performanceappraisal of the senior management of public enterprises. Learned Counsel for the Applicant has after very extensive argument pleaded that to quash the confidential reports pertaining to the years of 2000-01, 2001-02, 2002-03, 2003-04 including the secret note on the integrity and a no report certificate be recorded for each of these years and kept in his CR Dossier. He also highlighted some of the examples of fraud and forgery committed by Shri R. K. Gupta in writing confidential roll of the Applicant.
6. On contra, the Learned Counsels for the Respondents contended that the Applicants case has been considered at appropriate level and being in the zone of consideration has been submitted to the UPSC for consideration. The DPC constituted by the UPSC examined the cases of those eligible officers for the post of Adviser. As per the existing guidelines of DOPT the DPC assessed each officers ACR and rated them as Fit or Unfit as per the records made available to the UPSC. The Applicant was considered and found to be Unfit. With regard to the contentions raised by the Learned Counsel for the Applicant, the Respondents indicated that Reviewing Authority of the concerned year having retired, it was not possible for them to get the ACRs reviewed by the respective authorities. With the available ACRs and as per the extant Rules, the DPC has considered the Applicants ACRs and rated the Applicant as Unfit. He also contended that as per the directions of this Tribunal, the Applicant had been supplied copies of all the ACRs but the Applicant instead of giving his representations to the DOT has rushed to the Tribunal in this OA. The remedy available to the Applicant was not availed and, as such, learned Counsel for the Respondents-DOT contends that the comments on the entries of his ACR should not be subject of decision by the Tribunal. He also submitted that the Respondents are keen to consider his representation as per the Judgment of Honble Supreme Court in Dev Dutt Versus Union of India and Others (2008 (7) SCALE 403) decided on 12.5.2008
7. Having considered the rival contentions, two sets of inter twined issues come before us for our determination. Those are:-
(1) Issues relating to the Applicant being considered and declared unfit for the post of Adviser; and (2) ACR related issue including below bench mark, secret note on integrity and non reviewed ACRs.
8.1 We take up the 1st issue relating to the Applicant being considered and declared unfit for the post of Adviser.
8.2 Before we go into the details of the issue, it is appropriate for us to examine the Minutes of the UPSC which is based on the ACRs of the Applicant and also later on ACRs to identify what type of further follow up action to be taken by the Respondents. As per the Schedule III (Under Rule 8) of the ITS (Group A) Recruitment Rules, 1992 the method of recruitment for the Adviser is by promotion and selection, the eligibility conditions and feeder grade for the promotion being Promotion: officers in the grade of Rs.7300-7600 failing which officers with three years regular service in Senior Administrative Grade. The composition of the DPC for the purpose is (i) Chairman/Member of the UPSC as Chairman, (ii) Secretary, Department of Telecommunication & Ex Officio Chairman, and Telecom Commission as Member and (iii) Member, Telecom Commission. as Member.
8.3. We find from the file of Respondent, UPSC No.F./34(17)/2005 A P-3 that the DPC to consider the eligible candidates for the year 2006-07 for the Adviser Post ( 4 vacancies) met on 17.8.2006 at 15.30 hours where Shri Subir Dutta, Member, UPSC chaired, Shri D. S. Mathur and Shri A. K. Saxena participated as Members. The DPC adopted the guidelines circulated by the DOPT vide its OM No.22011/5/86-Estt.(D) dated 10.4.1989 as per which (a) the DPC enjoy full discretion to devise their own method for objective assessment of the suitability of candidates being considered by them, (b) ACR will be the basis to assess the merit, and (c) DPC will not be guided merely by the overall grading in the ACRs but should make its own assessment on the basis of entries in ACR. The bench mark for the purpose is Very Good. The DPC will grade the officers as Fit or Unfit only and arrange in the select panel in order of their inter se seniority in the feeder grade. The DPC in this case took a conscious decision that an officer attaining at least 4 bench mark gradings out of the 5 ACRs as per DOPT OM dated 8.9.1998 and 16.6.2000 should be assed as Fit for promotion. The said DPC accordingly examined the Character Rolls of the eligible officers and assessed them as in Annexure-I of the minutes. The Applicant was considered and assessed at S. No.3 as UNFIT.
9.1. Having examined the selection process adopted by the UPSC through the DPC it apt for us to examine the 2nd issue - ACR related issue including below bench mark, secret note on integrity and non reviewed ACRs. We find that the ACRs for 5 years were considered as the basis for grading of the officers by the DPC. How and why the Applicant was declared unfit can be discover only through a close scrutiny of the Applicants ACRs We therefore examined the ACRs of the Applicant for the preceding 5 years which is from 2000-01 to 2004-05 which became the basis of the assessment by the DPC. The Tabular analysis provides a birds eye view analysis of the status of ACRs and the apprehensions he raised in the OA.
Table on the Applicants ACR grading for the period 2000-01 to 2004-05.
Year (period) Overall grading by Reporting Officer (with date) Overall Grading by Reviewing Authority (with date) Grading by the Accepting Authority (with date) 2000-2001 I. 1.4.2000 to 25.12.2000 II. 26.12.2000 to 31.3.2002 Very Good (30.4.2004) Very Good (1.6.2001) No Review since the Review Authority retired in April 2001 No Review Blank Blank 2001-2002 1.4.2001 to 31.3.2002 Very Good (11.4.2002) No Review since the Reviewing Authority retired on 31.3.2002 Blank 2002-03 I. 1.4.2002 to 27.1.2003 II. 28.2.2003 to 31.3.2003 Very Good (8.1.2004) Too short period No grading (January 2004) Review observations are available in one page but not signed since Shri K. H. Khan Member (T) was not competent to review.
No Review Blank No provision in the ACR for Accepting Authroity 2003-2004 I. 1.4.2003 to 31.3.2004 Good (11.10.2004) No Review No provision in the ACR for Accepting Authority 2004-2005 I. 1.4.2004 to 6.7.2004 II. 7.7.2004 to 31.3.2005 Certificate (Reporting Officer retired) Average (30.6.2005) Certificate (Reviewing Officer retired) Very Good (No date) No provision in the ACR for Accepting Authority No provision in the ACR for Accepting Authority 9.2. Our perusal of the ACRs for 5 years reveals the following: (i) There was 3 stage grading system up to end of 2002 and thereafter 2 stage grading is in vogue.(ii) We find that there is no recording of remarks and grading by the Accepting Authority, (iii) Except one year (7.7.2004-31.03.2005) there is no review of the ACRs by the Competent Reviewing Authority; (iv) Reporting Officers have graded him Very Good in 4 Reports, Good in one Report and Average in one Report; (v) the Reviewing Authority has graded him as Very Good for the part of the year (7.7.2004 to 31.3.2005) after disagreeing with the Reporting Officer who has rated him Average. It is to note that in the ACR for the period 7.7.2004 to 31.3.2005 the Applicant has given his self appraisal in13 items and 5 lines narration with details of his performance and achievements but the Reporting Officers observations are rather cryptic and reads in the Column 1. An average officer, 2. Nothing adverse has come to notice, and in case of grading Average. The Reporting Officer has not given any assessment of the Applicants performance to give such cryptic comments. We also find that the Applicant has not given his self assessment for the year2003-04. Taking into account the above analysis, we conclude that the Applicant has got below bench mark report for 2 years as per the Reporting officers assessment which should have been communicated to him but only after the intervention of this Tribunal he has got copy of the ACRs for these 5 years.
9.3 An issue raised by the Learned Counsel for the Respondents that the Competent Reviewing Authority for Applicants ACR for the period 7.7.2004 to 31.3.2005 is that though Shri S. C. Choudhary the Director (O) was the competent authority to review, the review was actually done by Shri A. K. Sinha the then Chairman and Managing Director of BSNL and as such he argued that such ACR reviewed by an incompetent Authority .was not admissible. We have gone through the correspondence available in the Applicants file and found that Shri A. K. Bhandari, CGMT, Gujarat Circle wrote on 30.6.2005 the Applicants ACR for the said period as Reporting Officer which was communicated through a letter from Shri D. K. Agrawal to Shri A. K. Chaturvedi Adviser (HRD) DOT intimating that The ACR of the Officer was received by us after reporting by the then CGM Shri A. K. Bhandari only on 6.4.2006 and the same was sent to Shri S. C. Choudhary, Ex-Director (Operation), BSNL, New Delhi there P.S. to Director (O) New Delhi. He has returned the ACR without reviewing the same mentioning that it was too late for him to write the ACR since he retired on 31.10.2005. Subsequently, we find that P.S. to Director (O) in his letter dated 8.5.2006 requesting PS to CGMT Gujarat Telecom Circle wrote that the officer may approach Shri Choudhary personally for reviewing of his ACR for the said period. There was an attempt through a letter dated 10.5.2006 to get the ACR reviewed by Shri S. C. Choudhary. But it appears that he declined since he had already retired. This type of attempt contrary to the prescribed procedure is found to be improper and irregular. We also find that the CMD has reviewed the ACR without indicating the date. We note that the CMD BSNL is superior to Director (O). When the Competent Reviewing Authority has retired, the authority senior to the Reviewing Authority (here CMD) will be competent to review the ACR. In view of our above analysis we do not accept the contention of the Learned Counsel for the Respondent and come to the considered conclusion that the ACR for the period 7.7.2004 to 31.3.2005 reviewed by the CMD BSNL is the only one which has assessment of both Reporting Officer and Reviewing Authority and say this is not admissible it cannot be termed as fair. In the context of the fair procedure to be adopted, we were guided by the decision of Honble Supreme Court in R.S.Das Versus Union of India (1986 (Suppl) SCC 617) which reads as follows:-
We may state at the outset that giving reasons for decision is different from and in principle distinct from the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The Fairness or Fair Procedure in the administrative action ought to be observed.. Thus we are of the firm opinion that the ACR for the period 7.7.2004 to 31.3.2005 reviewed by the CMD BSNL is valid one and must be considered for all intents and purposes. In the result, the non-reviewed ACR for the said period available in the ACR dossier of the Applicant must be dealt as per prescribed procedure by the Respondent Nos.1 and 3.
9.4. With regard to the ACR for the year 2003-04, the Applicant did not give his self appraisal till 11.10.2004 and the Reporting Officer wrote the Part III of the ACR on 11.10.2004 and graded him as Good and he stated in the Integrity Column Secret Note No.CGMTUP(W)RKG/VIG/2004/1 dated 4.10.2004. We find that for about 3 = years this secret note was not acted upon and only on 9.5.2008 a copy was sent to CVO of BSNL for investigation and report. There is no reference to show the result of such investigation. The Counsel for the Applicant raised doubts about the DOT remarks on the integrity of the Applicant before the DPC was convened. It is argued that the integrity column for DPC was clear but became doubtful few hours before the DPC. It is stated that the cited Secret Note has brought this doubtful aspect to the knowledge of the DPC. We find that a note on integrity given by the Reporting Officer on 11.10.2004 was followed up in May 2008. This in our opinion is unpardonable delay. We are already in June 2009. It is expected that the CVOs report might have been received and a decision taken by the Competent Authority. In case this has been done, the CMD BSNL is duty bound to communicate the same to the Applicant before any final entry is made in the integrity column, receive his representation and ensure that competent authority takes a decision in the matter. In case the CVOs report is awaited, the same should be obtained in 4 weeks time for further action as indicated above.
10. The contention raised by the Applicants counsels relates to the grading in the ACR being below bench mark, the Applicant was not found as fit by the DPC mainly the Applicant could not reach 4 Very good rating out of 5 years ACRs. The ratio of the Full Bench decision of this Tribunal in Ashok Kumar Aneja Vs Union of India and Others in OA No.24/2007 decided on 7.5.2008 by the 5 member Larger Bench and the Judgment of Honble Supreme Court in Dev Dutt Versus Union of India and Others (2008 (7) SCALE 403) decided on 12.5.2008 will be applicable in the present case. The dicta set in these two decisions lay that in case of the below bench mark grading and/ down grading of the overall grading, such ACRs shall be treated as adverse and communicated to the concerned officer to respond for further review of the ACR. Further, a reference was made during the hearing about the decision of the Honble Supreme Court in Dev Dutt Versus Union of India and Others (supra) decided on 12.5.2008. The ratio in the case sets that every entry in the ACR must be communicated to the employee concerned so that he may have an opportunity of making a representation against it if he is aggrieved. Honourable Supreme Court in Dev Dutt Vs. Union of India [2008 SCC-8-725] observed how it is appropriate for the officers to receive their ACR to make representation if they so desire. Para 39 and 40 relevant for this case read as follows:-
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all en-tries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State ser-vice (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communica-tion of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or gov-ernment orders.
40. We further hold that when the entry is communicated to him the public ser-vant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair man-ner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the like-lihood is that the representation will be summarily rejected without adequate con-sideration as it would be an appeal from Caesar to Caesar. All this would be condu-cive to fairness and transparency in public administration, and would result in fair-ness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
11. Taking into account the settled legal position as per the judgment of Honble Supreme Court in Dev Dutts case (supra), we find that the Applicants ACR has not been reviewed over the years except for one year. When the 3 stage performance assessment system was in vogue i.e. after receipt of the self appraisal report from the Reported Officer, the views and observations of the Reporting Officer, Reviewing Authority and Accepting Authority are to be recorded. It is noted that for those years, the Accepting Authority column in the ACRs is blank. In case of the Reviewing Authorities comments in most of the cases they have retired and, as such, no recording has been done. In these types of peculiar circumstances, the detailed representation by the Applicant would be necessary to be considered by the Respondent 1 and 3. The Respondent No.3 would, therefore, be required to examine the disputed ACRs and the representations thereon and submit his views to Respondent 1 to pass specific order and such orders need also be communicated to the Applicant.
12. While considering the questions relating to the selection of the candidates through DPC, we find that there is catena of judgments of Honble Supreme Court which lays down the law that normally the recommendations of the DPC cannot be challenged except on the ground of malafides or serious violation of the Statutory Rules. The Courts / Tribunal cannot sit as an appellate authority to examine the recommendations of the Selection Committee like court of appeal. The discretion is with the Selection Committee. It is not the duty of this Tribunal to examine the selection of the candidates or to examine the records of each candidate to offer our opinion. The decisions of the Apex Court which were referred to by us in the issue are as follows: R.S.Dass V. Union of India & Ors. etc. (1986) (Supp) SCC 617; Union Public Service Commission V. Hiranyalal Dev & Ors. Etc. (1988) 2 SCC 242; Dalpat Abasaheb Solunke & Ors. V. Dr.B.S.Mahajan & Ors. (1990) 1 SCC 305; Anil Katiyar; (Mrs.) v. Union of India & Ors.(1997) 9 SCC 280; Durga Devi and Another vs. State of HP and Others. (1997) SCC (L&S) 982 ; UPSC v. K. Rajaiah (2005) STPL (LE) 34756 SC. Union Public Service Commission v. S.Thiagarajan & Ors. 2007 (3) SCALE 219; and M.V.Thimaiah Versus Union Public Service Commission 2007 STPL(LE) 39379 SC. In the background of the settled legal position we do not intend to upset the panel already drawn up where the Applicant was found unfit. Considering our observation on the below bench mark ACRs of the Applicant to pass through the representation by Applicant followed by the considered analysis by the Respondent 1 and 3, the ultimate destination will be a review DPC in this case to find out whether he is fit to be promoted to the post of Adviser.
13. Considering the above facts and circumstances of the case and the settled legal position in the subject, the official Respondents and the Applicant are directed in the following manner:-
The Applicant having received copy of all the relevant ACRs, is directed to submit his detailed representation on each of his ACRs and the entries thereon to Respondent No.3 within a period of 4 weeks from the date of receipt of copy of this order.
On receipt of representation, Respondent No.3 would examine all the details, more specifically; the entries made in the ACRs including the integrity column for the year 2003-04 and submit his considered view to the Respondent-1 who will consider all those in the most dispassionate manner and get the specific decision of the competent authority in the matter within a period of 4 weeks. With regard the Integrity column in the ACR of 2003-04, it would be apt for the Respondent No.3 to get the report of the CVO and finalize the same within a period of four weeks and submit the same to the Respondent-1.
After the final review of those ACRs and orders are passed on the representation of the Applicant, the Respondent Nos.1 and 3 are directed to place the matter before Respondent No.4 to convene a review DPC to consider the case of the Applicant.
Respondent No.4, on receipt of such a proposal from Respondent No.1 is directed to convene a review DPC within 4 weeks thereafter and submit its recommendations to the Respondent-1.
In case the Applicant is found Fit the Respondent No.1 and 3 are directed to grant him promotion to the post of Adviser w.e.f. the date on which his immediate junior was promoted and if required the junior most Adviser need to be reverted or in the alternative supernumerary post for the same may be created by the BSNL as may be advised. Further the applicant will be entitled to all other consequential benefits
14. With the above directions to the Respondents and the Applicant, the Original Application stands disposed of with no directions about costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber) Member (A) Member (J) Pj/-