Central Administrative Tribunal - Delhi
Satish Kumar Agarwal vs M/O Urban Development on 30 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3198/2014
New Delhi this the 30th day of October, 2015
Hon'ble Mr. A.K.Bhardwaj, Member (J)
Hon'ble Mr. V.N.Gaur, Member (A)
Satish Kumar Agarwal,
Superintending Engineer (Civil),
Group 'A' Aged 50 years,
S/o Shri Mahendra Kumar Agarwal,
R/o 14-H, Vikrant Apartments,
Rohini Sector-13, New Delhi. ... Applicant
(By Advocate Shri Ashish Nischal )
VERSUS
1. Union of India
Through its Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Union Public Service Commission,
Through its Secretary,
Dholpur House, Shahjahan Road,
New Delhi-110069 ... Respondents
(By Advocate Shri Ravinder Agarwal and Shri B.K.Barera)
ORDER
Hon'ble Mr. A.K.Bhardwaj, Member (J):
The Departmental Promotion Committee (DPC) for promotion to the post of Superintending Engineer (Civil) in Central Public Works Department (CPWD) for the vacancy year 2010-11 (12 vacancies), 2011-12 (36 vacancies) and 2012-13 (09 vacancies) met on 24.01.2014. The applicant was included in the zone of consideration for promotion to the post against the vacancies for the year 2010-2011. The DPC was to provide a panel of 12 officers. In 2 OA 3198/2014 terms of Government of India, Department of Personnel and Training OM No. 35034/7/97-Estt (D) dated 08.02.2002, the assessment of suitability of eligible employees in zone of consideration (in descending order of seniority in the feeder category) for inclusion in the panel was to be done only upto the number considered sufficient for preparing the normal panel with reference to number of vacancies as also for preparing extended panel in terms of the rules. The 12 officers senior to applicant were assessed fit for promotion to the post. Since the name of applicant in the zone of consideration for the year vacancy 2010-2011 figured only at serial no.15, he was not considered. Nevertheless, it is also the stand taken in the reply filed on behalf of UPSC that on account of the penalty imposed upon the applicant vide order no.C-13015/16/2003-AVIII dated 18.07.2007, his ACR for the year 2007-08 was down graded by one level i.e from 'very good' to 'good' as per internal guidelines of the Commission and another ACR for the period 2008-09 was also moderated by the DPC on the basis of its own assessment. In the rejoinder filed by him, the applicant could deal with only the issue of down gradation of his ACR for the period 2007-08 on account of imposition of penalty.
2. We heard counsel for parties and perused the record. As far as the issue of down gradation of ACR by the DPC on account of imposition of penalty is concerned, as has been mentioned in the counter reply of Union Public Service Commission (UPSC) itself, the DPC is not to be guided merely by overall grading recorded in ACR but it should make its own assessment on the basis of entry in CR as 3 OA 3198/2014 sometimes, the overall grading in CR may be inconsistent with the grading in various parameters or attributes. It has been further provided in the guidelines that the Committee is also expected to take into account whether the officer has been awarded any major or minor penalty. Para 6.1.1 to 6.2.3 of the guidelines read thus:-
"6.1.1 Where promotions are to be made by selection method as prescribed in the recruitment rules. the DPC shall, for the purpose of determining the number of officers who will be considered from out of those eligible officers in the feeder grade( s), restrict the field of choice as under with reference to the number of clear regular vacancies proposed to be filled in the year:
No. of vacancies No. of officers to be
considered
1 5
2 8
3 10
4 3 times the number
of vacancies.
6.1.2 At present DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them. In order to ensure greater selectivity in matters of promotions and for having uniform procedures for assessment by DPCs, fresh guidelines are being prescribed. The matter has been examined and the following broad guidelines are laid down to regulate the assessment of suitability of candidates by DPCs.
6.1.3 While merit has to be recognized and rewarded, advancement in an officer's career should not be regarded as a matter of course but should be earned by dint of hard work, good conduct and result oriented performance as reflected in the annual confidential reports and based on strict and rigorous selection process.
6.1.4. Government also desires to clear the misconception about "Average" performance. While "Average" may not be taken as an adverse remark in 4 OA 3198/2014 respect of an officer. at the same time, it cannot be regarded as complimentary to the officer, as "Average" performance should be regarded as routine and undistinguished. It is only performance that is above average and performance that is really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion.
Evaluation of Confidential Reports. 6.2.1. Confidential Rolls are the basic inputs of wh1ch assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non- discriminatory. Hence-
(a) The OPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment Rules. The 'preceding five years' for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O.M.No.22011/9/98-
Estt.(D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year).
(If two alternative eligibility conditions are prescribed and the officers satisfying these conditions are considered simultaneously instead of under a "failing which" clause, the DPC may consider the service record of all officers with particular reference to the ACRs (including ACRs in respect of service in the lower grade, if necessary) for the lesser number of years as between the two alternative periods of eligibility service or five years, whichever is longer. To cite an instance, if for promotion to a post in the scale of Rs.5900-6700, it is prescribed in the Recruitment Rules that officers with 8 years' service in the scale of Rs.3700-5000 or those with 17 years service in Group 'A' including four years service in the scale of Rs.3700-5000 are eligible, the DPC may consider the service record of all officers with particular reference to the ACRs for 8 years (including Annual Confidential Report for service in the lower grade, if necessary).
5 OA 3198/2014(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
(d) Where an officer is officiating in the next higher grade and has earned CRs in that grade, his CRs in that grade may be considered by the OPC in order to assess his work, conduct and performance but no extra weightage may be given merely on the ground that he has been officiating in the higher grade.
(e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs because, it has been noticed that some times the overall grading in a CR may be inconsistent with the grading under various parameters or attributes.
(f) If the Reviewing Authority or the Accepting authority, as the case may be, has overruled the Reporting Officer or the Reviewing authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purposes of assessment, provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing authority and Accepting authority are complementary to each other and one does not have the effect of over-ruling the other, then the remarks should be read together and the final assessment made by the DPC.
6.2.2. Grading of officers.-In the case of each officer, an overall grading should be given. The grading shall be one among (i) Outstanding, (ii) Very Good,
(iii) Good, (iv) Average (v) Unfit excepting cases covered under para 6.3.1 (iii).
6.2.3. Before making the overall grading after considering the CRs for the relevant years, the DPC should take into account whether the officer has been awarded any major or minor penalty or whether any displeasure of any superior officer or authority has been conveyed to him as reflected in the ACRs. The DPC should also have regard to the remarks against the column on integrity....."
6 OA 3198/2014In the aforementioned guidelines issued by the DoP&T in terms of G.I.O.M.No.22011/5/86-Estt. (D) dated 10.04.1989, as amended by O.M. No.22011/5/91-Estt (D) dated 27.03.1997, the DPC needs to take into account major or minor penalties imposed upon the officer, but is not expected to lower the grading in a particular ACR given by the authorities competent to initiate/review/report accept the ACRs.
It is different issue that the DPC enjoys full discretion to devise its own method and procedure for objective assessment of the suitability of candidates and is not bound by the grading given in the ACR. Once the DoP&T has laid down the consolidated guidelines regarding consideration of a candidate for his promotion by the DPC, it was not open to UPSC to lay down the different guidelines in respect of any modalities/ procedure mentioned in the guidelines. For such DPC meeting held under its aegis, the Commission issued a practice note providing therein, if any of the penalty mentioned in the practice note is awarded before the last assessment year but within the assessment matrix, the grading for that year is to be lowered by one level. The note reads thus:-
"Current practice for treating the penalties in the DPC meetings held under aegis of the Commission.
(1). Where the penalty is 'Censure' The cases are decided by the DPCs on case to case basis after taking into consideration the article of charges, etc., against the officer. (2) Where the penalty is (a) 'withholding of promotion'; or (b) 'recovery from pay'; or (c) 'reduction to lower stage in the time scale of pay by one stage for a period not exceeding 3 years'; or without cumulative effect'; or (d) 'withholding of 7 OA 3198/2014 increments from pay' (all minor penalties; or (e) 'reduction to a lower stage in the time scale of pay for a specified period, or (f) 'reduction to lower time scale of pay, grade, post or service' (major penalties).
· If the penalty is awarded in the last assessment year or thereafter, the officer is made 'Unfit' only once. That penalty is not considered thereafter.
· However, if the penalty is awarded before the last assessment year but within the assessment matrix, the grading for that year is lowered by one level. For example, if the grading is 'Outstanding', it is reduced to "Very Good". Similarly, the 'Very Good' is reduced to 'Good' and 'Good' to 'Average'. This is also given effect only once.
(3) Where the penalty is 'compulsory retirement', or 'removal from service', or 'dismissal from service' (major penalties) The Officer is treated as 'Unfit' for promotion in view of the penalty."
A practice note could not have overriding effect on the aforementioned guidelines issued by DoP&T. In terms of the guidelines, it is for the DPC to make its own assessment and consider the ramifications of the penalty on suitability of an officer. Besides, when the Committee can make its own assessment disregarding the grading in ACR, any procedure introduced for assessment of the ACR by lowering the same by one grade is even otherwise otiose.
3. In Union of India and Ors Vs. N.R.Parmar and Ors (JT 2012 (12) SC 99), Hon'ble Supreme Court ruled that the clarificatory memos cannot be permitted to change the basic feature of the substantive guidelines. Relevant excerpt of the judgment read thus:-
8 OA 3198/2014"41. Before examining the merits of the controversy on the basis of the OM dated 3.3.2008, it is necessary to examine one related submission advanced on behalf of the direct recruits. It was the contention of learned counsel, that the OM dated 3.3.2008 being an executive order issued by the Department of Personnel and Training, would apply only prospectively. In this behalf it was pointed out, that the disputed seniority between rival parties before this Court was based on the appointment to the cadre of Income Tax Inspectors, well before the OM dated 3.3.2008 was issued. As such, it was pointed out, that the same would not affect the merits of controversy before this Court. We have considered the instant submission. It is not possible for us to accept the aforesaid contention advanced at the hands of the learned counsel. If the OM dated 3.3.2008 was in the nature of an amendment, there may well have been merit in the submission. The OM dated 3.3.2008 is in the nature of a "clarification". Essentially, a clarification does not introduce anything new, to the already existing position. A clarification, only explains the true purport of an existing instrument. As such, a clarification always relates back to the date of the instrument which is sought to be clarified."
Besides, it is stare decisis that the selection Committee needs to hold the selection as per the laid down guidelines and it cannot introduce its own methodology. Above all in the year 2014, Ministry of Personnel, Public Grievances & Pension (Department of Personnel and Training) issued fresh guidelines vide OM no.22011/4/2007-Estt (D) dated 28.04.2014 providing therein that once it is settled position that the DPC has its power to make its own assessment, the down gradation of ACR by one level in the cases of imposition of penalty is not permissible. Para 7 of the OM reads thus:-
"7. The matter has been examined in consultation with the Department of Legal Affairs. It is a settled position that the DPC, within its power to make its own assessment, has to assess every proposal for promotion, on case to case basis. In assessing the 9 OA 3198/2014 suitability, the DPC is to take into account the circumstances leading to the imposition of the penalty and decide, whether in the light of general service record of the officer and the effect of imposition of penalty, he/she should be considered suitable for promotion and therefore, downgradation of APARs by one level in all such cases may not be legally sustainable. Following broad guidelines are laid down in respect of DPC:
a) DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them, including those officers on whom penalty has been imposed as provided in DoPT O.M. dated 10.4.89 and O.M. dated 15.12.2004.
b) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the ACRs/APARs but should make its own assessment on the basis of the entries in the ACRs/APARs as it has been noticed that sometimes the overall grading in a ACR/APAR may be inconsistent with the grading under various parameters or attributes. Before making the overall recommendation after considering the APARs (earlier ACRs) for the relevant years, the DPC should take into account whether the officer has been awarded any major or minor penalty. (Refer para 6.2.1(e) and para 6.2.3 of DoPT OM dated 10.04.89)
c) In case, the disciplinary/criminal prosecution is in the preliminary stage and the officer is not yet covered under any of the three conditions mentioned in para 2 of DoPT O.M. dated 14.09.1992, the DPC will assess the suitability of the officer and if found fit, the officer will be promoted along with other officers. As provided in this Department's O.M. dated 02.11.2012, the onus to ensure that only person with unblemished records are considered for promotion and disciplinary proceedings, if any, against any person coming in the zone of consideration are expedited, is that of the administrative Ministry/Department.
d) If the official under consideration is covered under any of the three condition mentioned in para 2 of O.M. dated 14.09.1992, the DPC will assess the suitability of Government servant along with other 10 OA 3198/2014 eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded are kept in a sealed cover. (Para 2.1 of DoPT OM dated 14.9.92).
e) Para 7 of DoPT OM dated 14.09.92 provides that a Government servant, who is recommended for promotion by the DPC, but in whose case, any of the three circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M. arises after the recommendations of the DPC are received but before he/she is Page 3 of 5 j) actually promoted, will be considered as if his/her case had been placed in a sealed cover by the DPC. He/she shall not be promoted until he/she is completely exonerated of the charges against him/her.
f) If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he/she is found guilty in the criminal prosecution against him/her, the findings of the sealed cover/covers shall not be acted upon. His/her case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him/her (para 3.1 of DoPT OM dated 14.9.92).
g) In assessing the suitability of the officer on whom a penalty has been imposed, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of general service record of the officer and the fact of imposition of penalty, the officer should be considered for promotion. The DPC, after due consideration, has authority to assess the officer as 'unfit' for promotion. However, where the DPC considers that despite the penalty the officer is suitable for promotion, the officer will be actually promoted only after the currency of the penalty is over (para 13 of DoPT OM dated 10.4.89).
h) Any proposal for promotion has to be assessed by the DPC, on case to case basis, and the practice of downgradation of APARs (earlier ACRs) by one level in all cases for one time, where a penalty has been imposed in a year included in the assessment matrix or till the date of DPC should be discontinued immediately, being legally non-sustainable.
11 OA 3198/2014i) While there is no illegality in denying promotion during the currency of the penalty, denying promotion in such cases after the period of penalty is over would be in violation of the provisions of Article 20 of the Constitution
j) The appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite the completion. (Para 4 of O.M. dated 14.09.1992)
k) In cases where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC which kept its findings in respect of the Government servant in a sealed cover then subject to condition mentioned in Para 5 of this Department's O.M. dated 14.09.1992, the appointing authority may consider desirability of giving him ad-hoc promotion (Para 5 of this Department's O.M. dated 14.09.1992)."
4. In S.K.Mehra Vs. Govt. of NCTD of Delhi and Ors (OA 4427/2014), following the law declared by Hon'ble Supreme Court, this Tribunal viewed thus:-
"14. Insofar as the first of the issues is concerned, it is an admitted fact that the applicant had approached this Tribunal by way of OA No.2839/2012 and other connected OAs for amelioration of his grievance, which were disposed of by a common order dated 26.08.2013 directing that meeting of the departmental Screening Committee be conducted to make regular promotions in respect of three posts of CTP. For the sake of better clarity, we extract para nos. 21 & 22 of the order as under-12 OA 3198/2014
"21. It is settled position of law that the selection process or method of recruitment is prescribed in the Recruitment Rules and cannot be evolved by the recruiting agency. In Dr. Krushan Chandra Sahu & others Vs State of Orissa & others (JT 1995 (7) SC
137), it has been held thus:
"33. Now, power to make rules regulating the conditions of service of persons appointed on Govt. posts is available to the Governor of the State under the Proviso to Art. 309 and it was in exercise of this power that the present Rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislative, or, for that matter by the Governor of the State, it would be open to the appropriate Government (the Central Government under Art. 73 and the State Government under Art. 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. [See Sant Ram v. State of Rajasthan, (AIR 1967 SC 1910)].
34. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homeopathic Medical Officers, as the basis of determining their suitability.
35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art. 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR):-
` "We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for 13 OA 3198/2014 personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive".
(Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200 : (AIR 1984 SC
541), it was observed (para 44, at p.562 of AIR):-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If, such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm".
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl (2) SCR 367 : (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657 : (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Art. 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
14 OA 3198/201439. If it were a mere matter of transition from one service to another service of similar nature as, for example, from Provincial Forest Service to All India Forest Administrative Service, the confidential character rolls could have constituted a valid basis for selection either on merit or suitability as was laid down by this Court in Pervez Qadir v. Union of India, 1975(2) SCR 432 : AIR 1975 SC 446 : (1975) 4 SCC 318 which has since been followed in R.S. Dass v. Union of India, AIR 1987 SC 593. But in the instant case, appointments are being made on posts in an entirely new service, though the educational qualifications required to be possessed by the candidates are the same as were required to be possessed in their earlier service.
40. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities; he should have thorough knowledge of the subject concerned; he should be organised in his thoughts and he should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting Officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the SOLE basis for determination of their suitability for the posts of junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. This Court in Liladhar v. State of Rajasthan (1981) 4 SCC 159 : AIR 1981 SC 1777 pointed out (at p.1778 of AIR) :-
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services". (emphasis supplied) 15 OA 3198/2014
22. In view of the aforementioned, respondents are directed to give due regard to the recruitment regulations for the three posts of Chief Town Planners while making regular promotion to the same in trifurcated Corporation. OA stands disposed of. No costs."
5. In Sri M.Thangamuithu Vs. Union of India and Ors (OA 353/2011), a Division Bench ( Bangalore Bench) of this Tribunal ruled thus:-
"We shall now illustrate below how the mechanical application of guidelines leads to perverse decisions. Clause (2) (i) & (ii) of the guidelines are 5.6.2008 are reproduced below:-
· If the penalty is awarded in the last assessment year or thereafter the officer is made 'unfit' only once. That penalty is not considered thereafter.
· However, if the penalty is awarded before the last assessment year but within the assessment matrix, the grading for that year is lowered by one level. For example, if the grading is 'Outstanding', it is reduced to 'Very Good'. Similarly the 'Very Good' is reduced to 'Good' and 'Good' to 'Average'. This is also given effect only once.
Thus, the DPC that makes selection against the vacancies of Chief Engineer for 2010-2011 which considers a person ( let us call him 'B') who has been awarded a punishment after 1.4.2008 (even a major penalty), will down grade the grading for the last year i.e. 2008-09 in the ACR only once. Thus, if the grading is "Very Good" for 2008-09 it is down graded as "Good"
resulting in the person "B" being made 'unfit' for promotion. However, if the said person B has earned "Very Good" grading throughout, in the next year of assessment i.e. for vacancies of 2011-2012 he will be found fit for promotion. Thus, "B" who has committed even a major irregularity during 2005-2006 or thereafter (presuming it takes 3 years for completion of major disciplinary proceedings) that too while working in the feeder cadre of Superintending Engineer will get 16 OA 3198/2014 promoted against the vacancies of 2011-2012, as may be the case of the applicant, say 'A' who was found responsible for a minor irregularity in 1988-89 (while working in a still lower cadre of Executive Engineer). This result in treating 'A' and 'B' whose cases are not at all similar, in the same manner. Yet again, if the disciplinary action against the applicant which was initiated in 1999 for an offence of 1988 ( after a lapse of 11 years-which is impermissible as per the law laid down by the Hon'ble Apex Court in P.V. Mahadevan Vs. M.D.T.N.Housing Board, 2005 SCC (L&S) 861, M.V. Bijlani Vs. Union of India & Others, 2006 SCC (L&S) 919 and Sate of Madhya Pradesh Vs. Bani Singh & Another, 1991 SCC (L&S) 638, but we are stopping short here as we do not know whether the delay could be explained was completed by 2002, as per the guidelines issued by CVC, he would have been awarded the punishment during the year 2002-2003 and it would not have had any impact on the gradings for the assessment years of 2004-2005 onwards. Even a major penalty of reduction to the lower post for one year would not have resulted in finding him unfit for promotion by the same DPC. In short, what we are trying to explain is that the applicant who has been awarded punishment for the irregularities committed in the year 1988 is denied promotion to the post of SAG only because the punishment was awarded during the year 2004-2005 after a lapse of 16 years. For the same offence even if the same penalty was awarded before 2003, it would have expired before the year 2005-05 and the said penalty would not have come in the way of down grading the ACR of the applicant. By chance it was awarded on 1.11.2004. From a perusal of the copies of the ACRs of the applicant (produced along with a memo dated 24.10.2011), we find that his grading for 2007-2008 was "Outstanding". Hence, if the imposition of the penalty was further delayed and orders were issued after 1.4.2007, his grading for the year would have been made "Very Good" by the DPC and he would have been fit for promotion as per the DOP&T's revised Bench mark prescription dated 18.2.2008. Let us fictionalize yet another situation. The same applicant, while working as Superintending Engineer is proceeded against for a major irregularity and awarded a major penalty of reduction to a lower post for one year in the year 2002 or before, or even during 2007- 2008, he would still have been found fit for promotion by the same DPC. We have illustrated that the same person can therefore be treated differently by strict adherence to the guidelines under different fortuitous circumstances. Thus, there is no logical basis to conclude that the applicant's performance during the year 2004-05 was 17 OA 3198/2014 only 'Good' and not 'Very Good'. As already stated, the DPC has mechanically applied the guidelines without taking into account the various factors which had led in the punishment order, like the date of commitment of irregularity, the nature of irregularity, the short tenure of the applicant as Executive Engineer in Pondicherry etc. In short, the guidelines dated 5.6.2008 are irrational when applied without proper application of mind. In any case, as the said guidelines have no force of law, they cannot be stated to be binding on the DPC. By stating so we are not precluding the DPC from applying the guidelines. While applying the guidelines the DPC has to exercise the discretionary powers vested on it by virtue of the instructions contained in DOP&T OM dated 10.04.1989 specially by clauses 6.1.3, 6.2.1 (b) and 6.2. 31(e) which have been quoted elsewhere.
38. In the result, we allow the reliefs prayed for in the OA. The respondents are directed to review the case of the applicant for promotion from the grade of Superintending Engineer to the grade of Chief Engineer for the vacancies of 2010-2011 in the light of the discussions and findings as stated above. If the applicant is selected, in accordance with his seniority position in the cadre of Superintending Engineer he will retain his seniority in the cadre of Chief Engineer and will be entitled to all other consequential benefits also. The review DPC as ordered above shall conclude the review proceedings within a period for 3 months from the date of receipt of a copy of this order. The OA is disposed of as above. No order as to costs.
6. In the wake of aforementioned, we are of the view that when the DPC takes into account the penalty imposed upon an employee before the last assessment matrix, it should not lower the grading in the ACR by the concerned authority, more so, for the reasons that the DPC has its discretion to make its own grading in respect of an ACR.
Nevertheless, as has been espoused by the respondents, for the year against which the applicant has sought promotion, there are only 12 vacancies and his position in the list was 15. Once the 12 candidates 18 OA 3198/2014 senior to him were found suitable, there could be no ground to consider him fit for such promotion. We find no substance in the claim of applicant made in the OA. The same is found devoid of merit and is accordingly dismissed.
( V.N.Gaur ) (A.K.Bhardwaj) Member (A) Member (J) 'sk'