Central Administrative Tribunal - Bangalore
Rakesh Ranjan vs M/O Defence on 20 December, 2021
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OA.No.170/1266/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/01266/2019
ORDER RESERVED ON 17.09.2021
DATE OF ORDER: 20.12.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(Through video conference from Central Administrative Tribunal, Chandigarh
Bench, Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(Through video conference from Central Administrative Tribunal, Bangalore
Bench, Bangalore)
Rakesh Ranjan
S/o Late Raghunath PD.Sinha
301, Tejas Daffodils
1st Main 11th Cross
PAI Layout, Beninganhalli
Bengaluru-560016. ....Applicant
(Party-in-person- through video conference)
Vs.
1. Secretary
Ministry of Defence
South Block, New Delhi-110001.
2. Secretary
Department of Personnel & Training
Ministry of Personnel, Public Grievances & Pension
North Block, New Delhi-110001.
3. The Chairman, UPSC
Dholpur House
Shahjahan Road, New Delhi-110069.
4. Controller General of Defence Accounts
Ulan Batar Road, Palam
Delhi Cantonment-110010. .... Respondents
(By Advocates Shri V.N.Holla, Sr.PC & Shri M.Rajakumar for R3 - through
video conference)
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ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) Direct the respondents to sanction and release arrears of pay & allowance from 01.04.2010 to 30.06.2014 having promoted the applicant to the post of PCDA in the HAG grade with retrospective effect from 01.04.2010 while the applicant drew less pay and allowances from 01.04.2010 to 18.03.2012 in SAG grade, and from 18.03.2012 to 30.06.2014 in HAG grade in the post of PCDA.
b) Direct respondents 1 & 4 to cause revision of pension w.e.f.
01.07.2014 till date consequent on refixation of pay as per (i) above and sanction arrears of pension resultant on revision of pension.
c) Direct respondents to convene Review DPC in respect of the applicant for consideration of promotion to HAG+ grade to the post of Addl. CGDA, and if found fit for promotion to the HAG+ with effect from the date the applicant's immediate junior Shri A.N.Saxena was promoted to the post of Addl.CGDA in the HAG+, sanction arrears of pay consequent there to, till 30.06.2014 i.e. the date of superannuation of the applicant.
d) Promote the applicant to HAG+ in the post of Addl. CGDA on finding him fit for promotion in the Review DPC, the respondent 1 & 4 to be directed to revise the pension of applicant to the pension as applicable to HAG+ in the post of Addl. CGDA and simultaneously sanction arrears of pension, as a result of revision, from 30.06.2014 till date.
2. The facts of the case as pleaded by the applicant are as follows: 3
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a) The applicant belongs to the Indian Defence Accounts Service (IDAS), 1980 batch. He superannuated on 30.06.2014 as Principal Controller of Defence Accounts (PCDA), in HAG grade, which he held substantively since 18.03.2012.
b) The promotion of the applicant to the grade of PCDA(HAG) of IDAS for the panel year 2010-11 (on notional basis w.e.f. 01.04.2010 i.e. with effect from the date of promotion of his immediate junior Shri A N Saxena) was antedated consequent upon upgradation of his Annual Performance Appraisal Report(APAR) by Review Departmental Promotion Committee(R-DPC) held on 09.03.2011 and with the approval of the Appointments Committee of the Cabinet(ACC) vide order dated 13.07.2017, he was promoted to the grade of PCDA w.e.f. 01.04.2010.
c) The applicant made a claim for arrears of pay and allowances after his notional promotion to the grade of PCDA with effect from 1.4.2010. The applicant was, however, intimated vide letter dated 19.03.2019 that his claim has been rejected as it lacks the force of a legal and appropriate Court's direction.
d) The applicant pointed out that his similarly placed juniors Shri A.K.Saxena and Shri Narendra Gupta were paid arrears of pay consequent to promotion to HAG grade with retrospective effect.
e) The applicant was informed that the precedents quoted by him pertaining to Shri Narendra Gupta and Shri A.K.Saxena were not similarly placed since they had been paid arrears as measure specific to them in pursuance 4 OA.No.170/1266/2019/CAT/Bangalore Bench of Court's direction. By granting arrears of pay and allowances to the above-mentioned juniors of the applicant, an anomaly has been created whereby the juniors to the applicant drew higher pay and allowances than their senior namely the present applicant for the entire period from 01.04.2010 to 30.06.2014 i.e. from the date of retrospective promotion to the date of superannuation of applicant in contravention of DoP&T OM No.4/7/92-Estt.(Pay-1) dated 4.11.1993.
f) The proposal for review DPC for promotion of the applicant to the post of Addl.CGDA (HAG + scale) was denied to the applicant on the ground that in case of review DPC finding the applicant as fit for promotion, he still may not be available for assumption of charge in the higher grade, which implies that his promotion to HAG+ grade would not be effective.
g) The respondents have been regularly promoting retired officers in compliance of various High Courts' orders. The case of Late Jacob David was also cited who had been empanelled and promoted to the post of CGDA in 2018 even after his death.
3. The respondents have filed their reply statement wherein they have averred as follows:
a) The applicant had filed OA.No.2754/2013 before Principal Bench of this Tribunal for directing the respondents to hold a fresh DPC as per direction of Calcutta Bench of this Tribunal and Hon'ble High Court of Calcutta and to grant all consequential benefits of seniority, promotion 5 OA.No.170/1266/2019/CAT/Bangalore Bench and pay & allowances and any other order which the Tribunal may deem fit.
b) The Principal Bench of this Tribunal vide its order dated 17.10.2014 allowed the OA and directed that the review DPC should not have ignored the upgraded ACR for the year 2003-04 and that a review DPC has to consider the promotion of the applicant by reviewing the proceeding of DPC held on 5.10.2009 against the vacancy year 2009-10 and each year thereafter. In the event of the review DPC finding the applicant fit for promotion, the respondents shall promote the applicant from the date of promotion of his immediate junior with all consequential benefits.
c) Against the said order dated 17.10.2014 of Principal Bench of this Tribunal, Writ Petition No.1358/2015 was filed by the department. The said WP was allowed by the Hon'ble High Court of Delhi vide their judgment dated 13.01.2016 which set aside and quashed the orders of Principal Bench of this Tribunal dated 17.10.2014. In its judgment, the Delhi High Court had inter alia observed as follows:
8. Learned counsel for the respondent has pointed out that the respondent was promoted as Principal Controller of Defence Account in the year 2012. Thus, the issue in question before us is whether the said promotion should have been granted from the year 2009-10.
9. For the aforesaid reasons, we find merit in the present writ petition and the same is allowed. We set aside and quash the order 6 OA.No.170/1266/2019/CAT/Bangalore Bench dated 17th October, 2014 and the directions given in paragraph 19 of the aforesaid order.
d) In response to this, a Review Petition No.82/2016 was filed by the applicant. In the said Review Petition, the Hon'ble High Court of Delhi vide orders dated 16.02.2016 had observed as follows:
"Learned counsel for the applicant submits that the review DPC had declared the applicant fit for promotion for the year 2010-11 and, therefore, the applicant was entitled to be promoted to the post of Principal Controller of Defence Accounts. He submits that this plea was also raised before the Tribunal in the Original Application.
Learned counsel for the respondent-non applicant prays for some time to obtain instructions.
Re-list on 28th March, 2016."
e) There was a technical error in the proceeding of the DPC held on 09.03.2011. Hence, modification of approval of ACC to the implementation of the recommendations of review DPC held on 09.03.2011 in respect of the applicant was obtained. Accordingly, ACC vide their communication dated 13.07.2017 approved empanelment of the applicant for promotion to the grade of PCDA(HAG) for the panel year 2010-11 on notional basis w.e.f. the date of promotion of his immediate junior Shri A. N. Saxena i.e. 01.04.2010. Promotion of the applicant to PCDA was accordingly notified vide CGDA order dated 18.08.2017.
f) As regards payment of arrears of pay and allowances of the applicant is concerned, the extant instructions/guidelines of the Government 7 OA.No.170/1266/2019/CAT/Bangalore Bench regarding non-payment of arrears as contained in para 18.4.3 of DoP&T OM dated 10.04.1989 are as under:
"If the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under F.R. 27 at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in the order in which his name, on review, has been placed in the select list by DPC. If in any such case a minimum period of qualifying service is prescribed for promotion to higher grade, the period from which an officer placed below the officer concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for promotion to the next higher grade."
g) There were no court directions for payment of arrears of pay and allowances on the retrospective promotion, to the applicant, and the instructions/guidelines quoted above do not provide for payment of any arrears on this account.
4. Respondent No.3 (UPSC) in their reply statement have averred as follows:
a) A proposal for Review DPC for promotion to the grade of Addl.CGDA (HAG+) in respect of the applicant was received on 05.12 2017. On examination of the proposal, it was observed that promotion of the applicant to the feeder grade of PCDA from retrospective date was made 8 OA.No.170/1266/2019/CAT/Bangalore Bench in compliance with the order dated 20.01.2010 in OA No.3163/2009 filed by R K Anand which is silent about grant of consequential benefits. It was also observed that the ACC, while approving the empanelment of the applicant(retired on 30.06.2014) to the grade of PCDA, was silent regarding consequential benefit i.e. for further promotion.
b) The UPSC vide letter dated 09.02.2018 requested respondent No.1 to obtain views of the DoP&T and Dept. of Legal Affairs (DoLA) regarding admissibility of consequential benefit for promotion in view of the direction dated 20.01.2010 of the Tribunal.
c) The DoP&T vide their ID dated 15.05.2018 opined in the matter as under:
"8. It may be observed from the foregoing that though the junior Shri Ranjan i.e. Shri A N Saxena was promoted to the higher grade (HAG+) before the date of superannuation of Shri Ranjan (30.06.2014), however, in case of Review DPC finding Shri Ranjan as FIT for promotion, he may still not be available for assumption of charge in the higher grade, which implies that his promotion to HAG+ would not be effective.
9. In view of this, no purpose would be served in holding of Review DPC for considering promotion of Shri Ranjan in terms of this Department's OM dated 12.10.1998/14.11.2014, as Shri Ranjan cannot be granted actual promotion.
10. It is proposed that the aforesaid observations may be conveyed to the administrative Ministry with the request to take a final stand in the matter in consultation with the Department of Legal Affairs."9
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d) DoP&T also referred its OM No.22011/4/98-Estt.(D) dated 12.10.1998 regarding 'procedure to be followed by the DPCs in regard to retired employees'. According to the said OM, names of the retired officials may also be included in the panel. Such retired officials would, however, have no right for actual promotion.
e) The DoLA vide its Dy.No.1014/XVIII/LA(DEF) dated 13.07.2018 advised to consider the matter as advised by DoP&T.
f) The UPSC returned the Review DPC proposal submitted by the Min. of Defence vide letter dated 06.06.2019 with the remarks that 'no purpose will be served by holding Review DPC to consider Shri Rakesh Ranjan(Retd. on 30.06.2014) for promotion to the grade of Addl. CGDA(HAG+) as opined by DoP&T and concurred by DoLA'.
5. In his rejoinder, the applicant has reiterated as follows:
a) The cases of the applicant and Shri Narendra Gupta were entirely the same. However, the order in the case of Shri Narendra Gupta was modified to make him entitled to receive arrears of pay and allowances under the threat and pain of Contempt of Court. Accordingly, the applicant has also contended that he should also be allowed arrears of pay and allowances on principles of equity and natural justice.
b) In the reply statement, the respondents had stated that the modification of approval of ACC to the implementation of the recommendations of review DPC held on 09.03.2011 in respect of Shri Rakesh Ranjan, 10 OA.No.170/1266/2019/CAT/Bangalore Bench IDAS(Retd) was obtained. In the minutes of the meeting of the DPC held on 09.03.2011(Annexure-R1 of rejoinder), the applicant was adjudicated as 'fit' for promotion. Had the respondents acted in time and not in the manner they did in 2016-17 leading to order dated 18.07.2017 notifying applicant's promotion, there would have been no cause for the present OA. In 2016-17, the respondents relied on the same DPC of 09.03.2011 on which they did not pass any orders for more than 6 years.
c) Shri A.N.Saxena, the immediate junior to the applicant was promoted to HAG grade on 01.04.2010 while it took 7 years and 3 months to promote the applicant to the said post, even when the DPC of 09.03.2011 had adjudicated the applicant 'fit' for promotion to HAG and had placed him above Sri A.N.Saxena.
d) Apart from the case of Late Sri Jacob David who was promoted even after his death to the post of Addl.CGDA in HAG+ and sanctioned all consequential financial benefits, there are number of other retirees who have also been promoted under Court orders.
6. In their additional reply statement, the respondents have averred as follows:
a) In case of Shri Narinder Gupta, the Tribunal vide their order dated 11.01.2017 in OA.No.582/2017 had directed to grant all the consequential benefits of promotion to the applicant. Hence, in pursuance of the order of this Tribunal the arrears of pay and allowances were granted to Shri Narinder Gupta after obtaining the approval of ACC. 11
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b) The arrears of pay and allowances are to be regulated as per the provisions contained in para 18.4.3 of DoP&T OM dated 10.04.1989 which categorically states that no arrears are admissible in such cases.
c) In respect of retrospective promotion of Late Shri Jacob David to the post of CGDA, the following submissions were made in their counter reply filed by the respondents:
i. Aggrieved by penalty order dated 12.10.2012, Late Shri Jacob David, IDAS filed an OA No.1038/2012 before Hon'ble CAT Ernakulam Bench. The said OA was allowed by Hon'ble Tribunal vide their order dated 28.05.2013 as under: -
25. In view of the above, the OA succeeds. The impugned order vide Annexure A-11 is quashed and set aside. It is declared that the applicant is entitled to restoration of his pay drawn prior to the date of the penalty order.
Respondents are directed to work out the difference in pay and make payment of the same to the applicant within a period of two months. Respondents are also directed to open the sealed cover and if the applicant is otherwise suitable for promotion, necessary promotion order be also issued and the difference in pay be worked out and paid to him. This part of the order shall be completed within four months from the date of communication of this order. No costs. ii. In order to challenge the said order dated 28.05.2013, Original Petition (CAT) No.3394/2013(z) was filed by the department in 12 OA.No.170/1266/2019/CAT/Bangalore Bench Hon'ble High Court of Kerala. The Hon'ble High Court of Kerala vide their judgment dated 09.11.2016 dismissed the OP as under:-
19. After hearing both the sides and after going through the materials on record, we find that this is not at all a fit case to call for interference with Ext. P5 order passed by the Tribunal invoking the supervisory jurisdiction of this Court under Articles 227 of the Constitution of India. The case of the applicant stands established before the Tribunal and it was accordingly, that the impugned order was set aside, granting relief to the appropriate extent. We find that the Original Petition is devoid of any merit. No interference is called for and it is dismissed accordingly.
iii. Consequent upon approval of Hon'ble Raksha Mantri, Ministry/Department had decided to implement Hon'ble CAT order dated 28.05.2013 in OA No.1038/2012.
iv. Subsequently, 'Sealed Cover' placed by the DPC held on 19.01.2009 for promotion to the grade of Principal Controller of Defence Accounts for the vacancy year 2009-10 was opened. The said recommendation of the DPC was also approved by the Appointment Committee of the Cabinet (ACC) as under:-
"2. The Appointment Committee of the Cabinet(ACC) has approved the empanelment of Shri Jacob David, by including his name in the panel for the year 2009-10 at Sl.No.2-A above 13 OA.No.170/1266/2019/CAT/Bangalore Bench Shri Amit Cowshish (S.No.3) and below Smt. Priti Mohanty (Sl.No.2), for promotion to the Higher Administrative Grade (Principal Controller of Defence Accounts) of IDAS in the pay scale of Rs.67000-79000/- on notional basis w.e.f. the date of promotion of his immediate junior i.e. 31.07.2009, along with consequential benefits in compliance to the order dated 28.05.2013 of CAT, Ernakulam in OA No.1038/2012, which was upheld by the High Court of Ernakulam vide order dated 09.11.2016 in subsequent WP filed by the Department."
v. Accordingly, promotion to the Principal Controller of Defence Accounts (HAG) in respect of Late Shri Jacob David was notified.
Further, Shri Amit Cowshish, the officer immediate junior to Late Shri Jacob David by virtue of implementation of the recommendation placed in the 'Sealed Cover' of the DPC held on 19.01.2009, was promoted to the grade of Addl.CGDA (HAG+) for the vacancy year 2011-12 on the basis of the recommendations of DPC held on 7.12.2010. As such, Late Shri Jacob David become eligible for consideration for promotion to the grade of Addl.CGDA in review of the proceedings of the DPC held on 7.12.2010. Accordingly, Review DPC for promotion to the grade of Addl.CGDA was convened on 03.10.2017. The said recommendation of Review DPC was approved by ACC as under:-
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OA.No.170/1266/2019/CAT/Bangalore Bench "The Appointment Committee of the Cabinet(ACC) has approved the empanelment of late Shri Jacob David, by including his name in the panel for the year 2011-12 at Sl.No.2-A above Shri Amit Cowshish (Sl.No.3) and below Smt.Priti Mohanty (Sl.No.2) for promotion to the grade of Additional Controller General of Defence Accounts in the pay scale of Rs.75500-80000/- (pre-revised) in the Indian Defence Accounts Service, w.e.f. the date of promotion of his immediate junior, i.e. 01.01.2012, along with all consequential benefits, in compliance to the order dated 28.05.2013 of CAT, Ernakulam Bench in OA No.1038/2012 which was upheld by the High Court of Ernakulam vide order dated 09.11.2016."
vi. Accordingly, promotion of late Shri Jacob David to the post of Addl.CGDA on notional basis w.e.f. the date of promotion of his immediate junior i.e. 01.01.2012 along with consequential benefits in compliance of Hon'ble CAT order dated 28.05.2013 upheld by Hon'ble High Court vide their judgment dated 09.11.2016, was notified.
vii. On the basis of recommendations of the Supplementary DPC held on 19.09.2012 for the vacancy year 2012-13, as Shri Amit Cowshish, immediate junior retired on 31.08.2012 and as approved by the ACC, next junior officer i.e. Shri Arunava Dutt was promoted to the post of CGDA with effect from 01.11.2012.
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OA.No.170/1266/2019/CAT/Bangalore Bench viii. Therefore, late Shri Jacob David became eligible for promotion to the post of Controller General of Defence Accounts (CGDA) with effect from the date of promotion of next immediate junior, Shri Arunava Dutt i.e. 01.11.2012 against the vacancy year 2012-13. Hence, Review DPC for promotion to CGDA in respect of late Shri Jacob David was convened on 20.03.2018. On the recommendation of the Review DPC duly approved by ACC, promotion of late Jacob David to the post of CGDA was notified.
d) In this context, extant instructions/guidelines of the Government issued vide DoPT OM No.22011/4/98-Estt.(D) dated 12.10.1998 on the subject, 'Procedure to be followed by the Departmental Promotion Committee(DPCs) in regard to retired employees' and reiterated vide OM dated 14.11.2014 on the subject, 'inclusion of eligible officers who are due to retire before the likely date of vacancies, in the panel for promotion - Regarding' provides as under:-
".... it would not be in order if eligible employees who are within the zone of consideration in the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration/panel and, consequently, their juniors are considered (in their places) who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identity the correct zone of consideration for relevant year(s). Names of the 16 OA.No.170/1266/2019/CAT/Bangalore Bench retired officials may also be included in the panel(s). Such retired officials, would, however have no right for actual promotion."
e) Thus, promotion of Late Jacob David from PCDA to Addl.CGDA and then CGDA was made strictly in accordance with the law of the land and no undue benefit was given to him.
7. Heard learned counsels for both the parties. The pleadings submitted by them were also perused. In addition, the applicant was asked to submit the following documents, which are connected with this case. These documents were submitted by the applicant and perused:
a) PPO No.C/DAD/16350/2014 issued by the Principal CDA (Pensions) Allahabad in favour of the applicant.
b) Corrigendum PPO No.413201416350 vide which revised pension had been ordered to the applicant by refixation of his pay on notional basis with effect from the date of promotion of his immediate junior Shri A.N. Saxena from 01.04.2010.
c) Copy of judgment in OA.No.2754/2014 of Principal Bench of this Tribunal dated 17.10.2014 titled Rakesh Ranjan (applicant) vs. UOI.
d) Copy of judgment of Hon'ble High Court of Delhi in WP(C).
No.1358/2015 dated 13.01.2016 titled UOI & Anr. Vs. Rakesh Ranjan (applicant).
e) Copy of judgment/order of Hon'ble High Court of Delhi in Review Petition No.82/2016 in OA.No.2754/2013 dated 02.09.2016 in UOI 7 Anr. Vs. Rakesh Ranjan (applicant).
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8. After perusal of these additional documents, going through the pleadings submitted by the parties, and hearing the parties, the following facts have emerged in this case:
a) The applicant had been considered unfit by the DPC held on 05.10.2009 for vacancy year 2009-10 as well as by a subsequent DPC held on 20.12.2009 for vacancy year 2010-11 on the ground of below benchmark ACRs relating to the years 2003-04 & 2004-05 respectively.
Subsequently his ACRs for the years 2003-04 and 2004-05 were upgraded by the Competent Authority after a representation had been made by him against these below benchmark gradings. A review DPC was held on 27.12.2009 to reconsider the applicant for promotion for the vacancy year 2009-2010. This review DPC did not concur with the upgradation of the ACR for the year 2003-04 and retained its assessment as Good. However, it accepted the ACR upgradation for the year 2004-05 and ugraded its assessment as 'Very Good'. On the basis of this revised assessment, the applicant was assessed as UNFIT for promotion to the grade of Principal Controller of Defence Accounts(PCDA in HAG scale) for the vacancy year 2009-10.
b) In a subsequent review DPC held on 09.03.2011 to consider the officers for promotions with respect to the vacancies for the year 2010- 11 based upon the upgraded ACRs of the applicant and others, the applicant was assessed FIT for promotion for the vacancy year 2010-
11. In this particular review DPC, besides the applicant, Shri Narinder 18 OA.No.170/1266/2019/CAT/Bangalore Bench Gupta and Shri A.K. Saxena, both juniors to the applicant in the seniority list, who had also been earlier assessed as UNFIT on the ground of below benchmark ACRs in the DPC held on 27.12.2009, were also now assessed as FIT based on their upgraded ACRs.
c) The list of officers who were placed in the revised panel for promotion for the year 2010-2011 by the Review DPC dated 9.3.2011 was as follows:
1. Suhas Banerjee
2. Rakesh Ranjan (applicant)
3. A.N. Saxena
4. V.R. Sadasivam
5. S.S. Sandhu
6. S.K. Kohli
7. Narinder Gupta
8. A.K. Saxena
9. N. Neihsial
10.Veena Prasad
d) Subsequent to this revised assessment and recommendations made by the review DPC dated 9.03.2011, the cases of the applicant, Shri Rakesh Ranjan, Shri Narendra Gupta, and Shri A.K. Saxena were referred to the ACC for approval of their empanelment for promotion to the grade of PCDA (HAG) for the vacancies of the year 2010-11.
However, the proposal was declined by the ACC on the grounds that the instructions dated 13.04.2010 issued by the DoP&T vide OM No.21011/1/2010-Estt.A regarding below benchmark grading in ACRs, prior to reporting period 2008-09, and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading, would be applicable only in 19 OA.No.170/1266/2019/CAT/Bangalore Bench cases of future DPCs and not in cases where original DPC may have been held prior to 13.04.2010.
e) This decision of ACC was challenged in the case of Shri A.K. Saxena in OA.No.901/2012 before the Principal Bench of this Tribunal. A perusal of the orders issued by the Tribunal indicates that the OA was allowed on 14.2.2014 and the PB of this Tribunal directed the respondents to give effect to the recommendation of the review DPC for grant of promotion to the applicant therein expeditiously, preferably within a period of three months from the date of issuance of certified copy of the order. It further directed that the applicant would be entitled to all the benefits with effect from the due date and also to all the benefits which have been extended to his juniors. This order was subsequently confirmed by Orders of Honourable High Court of Delhi dated 25.08.2014 in WP (C) No: 5371/2014 and Orders of the Honourable Apex Court dated 27.01.2015 in SLP (CC) No: 1040/2015.
f) The pay of Shri A.K. Saxena was subsequently refixed vide office orders No: 283 dated 15th September 2015, on account of his promotion to the grade of PCDA in HAG pay scale against the vacancy year 2010- 11 with effect from the date of promotion of his immediate junior Shri N. Neihsial, i.e. w.e.f. 12.04.2010, with entitlement of all benefits with effect from the due date and also to all the benefits extended to his junior.
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g) Similarly, in the case of Shri Narinder Gupta, the Chandigarh Bench of this Tribunal, in OA.No.582/2016, vide orders dated 11.01.2017, held that the applicant Shri Narinder Gupta is also entitled to similar treatment and relief on the principle of parity. The judgment in A.K. Saxena case (Supra) was held to be otherwise relevant in the case of Narinder Gupta on the basis of Doctrine of stare decisis. The Tribunal while accepting the prayer made in the OA also directed for grant of all the consequential benefits of promotion to the applicant therein within a period of three months from the date of receipt of a certified copy of the order.
h) In pursuance of these orders of the Chandigarh bench of this Tribunal dated 11.01.2017 in OA No: 582/2016, Shri Narinder Gupta was promoted to the grade of PCDA in the HAG pay scale for the panel year 2010-11 w.e.f. 12.04.2010 i.e. the date of promotion of his immediate junior. He was also granted all consequential benefits including payment of arrears of pay, as a measure specific to him, vide orders issued vide UO Note No. AN-I/1381/OA- 582/2016/NG dated 15.10.2018.
i) However, in the case of the applicant, his promotion to the grade of PCDA (HAG) for the panel year 2010-11 has been granted vide orders dated 06.09.2017 on notional basis with effect from the date of promotion of his immediate junior Shri A.N. Saxena, i.e. from 01.04.2010. He has not been granted any pay arrears. However, a perusal of the Corrigendum PPO No.413201416350 of the applicant 21 OA.No.170/1266/2019/CAT/Bangalore Bench indicates that he has been granted revised pension after refixation of his pay on notional basis.
9. The facts of the case clearly reveal that the applicant was assessed as FIT based on review DPC conducted on 09.03.2011 in which Shri Narinder Gupta as well as Shri A.K. Saxena, both being juniors to the applicant had also been reassessed as FIT. All these three officers had been assessed as UNFIT in an earlier DPC. Based on judicial orders, both Shri A.K. Saxena as well as Shri Narinder Gupta were finally promoted with retrospective effect from the date on which their immediate junior was promoted. Both of these officers have also been granted consequential benefits including arrears of pay and allowances based on court orders.
10.However, in the case of the applicant, the arrears of pay and allowances have been denied to him and his pay has been refixed on notional basis on the grounds that there are no Court orders specifying consequential benefits to him. He has accordingly, been granted only notional benefit of pay fixation since he had already retired in 2014.
11.It is well settled principle of law that when a particular set of employees is given relief, by the Court, other identically situated persons, should be treated alike by extending the same benefit, irrespective of the fact whether they approached any Court or not. Thus, the applicant is also entitled for the same treatment/relief on promotion on the Doctrine of parity, in view of the law laid down by Hon'ble Apex Court in Man Singh Vs. State of Haryana and others AIR 2008 SC 2481 and Rajendra Yadav Vs. State of M.P. and Others 2013 (2) 22 OA.No.170/1266/2019/CAT/Bangalore Bench AISLJ, 120 wherein, it was ruled that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well, not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. The administrative action should be just on the test of fair play and reasonableness.
12.The present applicant, therefore, deserves to be treated on exactly similar grounds as has been done in the case of Shri Narinder Gupta and Shri A.K.Saxena. These two officers were admittedly junior to the applicant and had been granted promotions from the date their immediate juniors were promoted, based on the recommendations of the same review DPC. They were also granted consequential benefits including arrears of pay, admittedly under court orders. Hence, the applicant is also entitled to similar treatment and to the consequential benefits as given to Shri Narendra Gupta and to Shri A.K. Saxena who were similarly placed and also admittedly junior to him.
13.The applicant has also prayed for convening a review DPC in his case for consideration of his promotion to Addl. CGDA (HAG+ grade), and if found fit by the Review DPC, for grant of his promotion to the HAG+ grade with effect from the date his immediate junior Shri A.N. Saxena was promoted to the post of Addl. CGDA in HAG+ grade, since he was still in service at the time of the promotion of Shri A.N. Saxena to HAG+ grade.
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14.The DoP&T has issued the following consolidated instructions dtd.10.04.1989 containing guidelines on Departmental Promotion Committees in the case of review DPCs for Government servants:
"18.1 The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, e.g.
a) where eligible persons were omitted to be considered; or
b) where ineligible persons were considered by mistake; or
c) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or Scope and procedure Cases where adverse remarks have been expunged or toned down
d) Where some procedural irregularity was committed by a DPC; or
e) Where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer.
These instances are not exhaustive but only illustrative. 18.2A Review DPC should consider only those persons who were eligible as on the date of meeting or original DPC. That is, persons who became eligible on a subsequent date should not be considered. Such cases will, of course, come up for consideration by a subsequent regular DPC. Further the review DPC should restrict its scrutiny to the CRs for the period relevant to the first DPC. The CRs written for subsequent periods should not be considered. If any adverse remarks relating to the relevant period, were toned down or expunged, the modified CRs should be considered as if the original adverse remarks did not exist at all. 18.3 A Review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change 24 OA.No.170/1266/2019/CAT/Bangalore Bench the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently. 18.4.1. In cases where the adverse-remarks were toned down or expunged subsequent to consideration by the DPC, the procedure set out herein may be followed. The appointing authority should scrutinise the case with a view to decide whether or not a review by the DPC is justified, taking into account the nature of the adverse remarks toned down or expunged . In cases where the UPSC have been associated with the DPC, approval of the Commission would be necessary for a review of the case by the DPC.
18.4.2.While considering a deferred case, or review of the case of a superseded officer, if the DPC finds the officer fit for promotion/confirmation, it would place him at the appropriate place in the relevant select list/list of officers considered fit for confirmation or promotion after taking into account the toned down remarks or expunged remarks and his promotion and confirmation will be regulated in the manner indicated below. 18.4.3.If the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under F.R.27 at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in the order in which his name, on review, has been placed in the select list by DPC. If in any such case a minimum period of qualifying service is prescribed for promotion to higher grade, the period from which an officer placed below the officer concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for promotion to the next higher grade.
18.4.4. In the case of confirmation, if the officer concerned is recommended for confirmation on the basis of review by the DPC, he should be confirmed and the seniority already allotted to him on the basis of review should not be disturbed by the delay in confirmation.
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15.A perusal of these guidelines clearly indicates that a review DPC can be held where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC.
16.The DoP&T vide another OM dated 12.10.1998 had issued instructions with regard to the procedure to be followed by the DPC in regard to retired employees which reads as follows:
OFFICE MEMORANDUM Subject: - Procedure to be followed by the Departmental Promotion Committee (DPCs) in regard to retired employees.
The undersigned is directed to invite reference to the Department of Personnel and Training (DOP&T) Office Memorandum No. 22011/5/86-Estt(D) dated April 10, 1989 containing the consolidated instructions on DPCs. The provisions made in paragraph 6.4.1 of the aforesaid Office Memorandum lay down the following procedure for preparation of year-wise panel(s) where for reasons beyond control, DPC(s) could not be held for the year(s) even though vacancies arose during the year(s):-
i. Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
ii. Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
iii. Prepare a 'Select List' by placing the select list of the earlier year above the one for the next year and so on.26
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2. Doubts have been expressed in this regard as to the consideration of employees who have since retired but would also have been considered for promotion if the DPC(s) for the relevant year(s) had been held in time.
3. The matter has been examined in consultation with the Ministry of Law (Department of Legal Affairs). It may be pointed out in this regard that there is no specific bar in the aforesaid Office Memorandum dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). According to legal opinion also it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year wise zone of consideration/panel and, consequently, their juniors are considered (in their places), who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant Year(s). Names of the retired officials may also be included in the panel(s). Such retired officials would, however, have no right for actual promotion. The DPC(s) may, if need be, prepare extended panel(s) following the principles prescribed in the Department of Personnel and Training Office Memorandum No.22011/8/87-Estt.(D) dated April 9, 1996.
4. Ministries/Departments are requested to bring these instructions to the notice of all concerned including their attached and subordinate offices.
17.As can be seen from the above, it is clearly stated in the OM dated 12.10.1998 that it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration/panel.
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18.The stand taken by the respondents in the present case is that "since the applicant had already retired and would not been available for assumption of charge in the higher grade, his promotion to the HAG+ would not be effective. In view of this, no purpose would be served in holding review DPC as the applicant cannot be granted actual promotion." However, this stand taken by the respondents is completely erroneous and against the principles delineated in the guidelines mentioned in the OM's dated 10.04.1989 and 12.10.1998. Even if the applicant cannot be granted actual promotion, since he has already retired, his right for consideration for promotion, if eligible, in a review DPC cannot be denied to him. This is clearly prescribed in the DoP&T OM dated 12.10.1998 which states that all eligible employees, who are within the zone of consideration for the relevant year(s), but are not actually in service when the DPC is being held, have to be considered. In the present case, the applicant has been granted the benefit of antedating of his date of promotion to 01.04.2010, the date when his immediate junior was promoted to the post of PCDA. This antedating of his date of promotion would certainly have an effect on his seniority position in the cadre. Hence, he would also be eligible to be considered for further promotion to the higher post if his immediate junior now in the seniority list had been considered and promoted to the higher post while the applicant was still in service. In case the applicant is assessed as FIT for promotion, by the review DPC, he would also be entitled to his pay being fixed notionally in the higher grade, since he has already retired from service and cannot be granted actual promotion. He shall, however, not be entitled to any arrears of pay as prescribed in para 18.4.3 of the DoP&T guidelines dated 10.04.1989.
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19.The OA is accordingly, partly allowed with the following directions:
a) Respondents to sanction and release arrears of pay & allowances from 01.04.2010 to 30.06.2014 having promoted the applicant to the post of PCDA in the HAG grade with retrospective effect from 01.04.2010 on grounds of parity with the case of Shri Narendra Gupta and Shri A.K. Saxena.
b) Respondents to convene Review DPC in respect of the applicant for consideration of his promotion to Addl. CGDA (HAG+) grade and if found fit for promotion, to grant him promotion on notional basis, with effect from the date the applicant's immediate junior Shri A.N.Saxena was promoted to the post of Addl.CGDA (HAG+) grade. He shall, however, not be entitled to any arrears of pay and allowances, if any, on grant of this upgradation, if found fit for promotion. However, he shall be entitled to revision of his pensionary benefits subsequent to his upgradation, if found fit.
20.The respondents are further directed to grant the above-mentioned relief to the applicant within a period of three (3) months from the date of receipt of a certified copy of this order.
21.However, there shall be no order so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER(ADMN) MEMBER(JUDL)
/ps/