Rajasthan High Court - Jaipur
Jamuna Prasad vs U O I And Ors on 25 November, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
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D.B. CIVIL WRIT PETITION NO.13291/2014
Jamuna Prasad Vs. UOI & Others.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
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D.B. CIVIL WRIT PETITION NO.13291/2014
PETITIONER:
Jamuna Prasad S/o Late Shri Sukh Ram, aged about 58 years,
permanent resident of 52/203 Sector 5, Pratap Nagar, Sanganer,
Jaipur, Presently working as S.O.E. Under Directoratae of
Construction Services & Estate Mananement, Mumbai.
VERSUS
RESPONDENTS:
1. Union of India through the Chairman, Atomic Energy
Commisison & Secretary to the Government of India, Department of
Atomic Energy, Anu Shakti Bhawan, Chhatrapati Shivaji Maharaj
Marg, Mumbai-400001.
2. The Director, Atomic Minerals Directorate for exploration and
Research, Department of Atomic Energy, 1-10-153-156, Begum pet,
Hyderbad- 500016.
3. The Regional Director, Atomic Minerlas Directorate for
Exploration and Research, Western Region, Department of Atomic
Energy, Sector 5 Extension, Pratap Nagar, Sanganer, jaipur-
302033.
4. Central Administrative Tribunal, jaipur Bench, Jaipur through
its Registrar, Sahkar Marg, Jaipur.
Judgment reserved on : 15th November, 2016.
Date of Judgment : 25th November, 2016.
HON'BLE MR.JUSTICE AJAY RASTOGI,J.
HON'BLE MR.JUSTICE DINESH CHANDRA SOMANI
Mr.Mahendra Shah, Counsel for petitioner.
Mr.S.C.Gupta, Counsel for respondents.
JUDGMENT
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BY THE COURT (Per Hon'ble Mr.Justice Ajay Rastogi):
Instant writ petition is directed against order of the ld.Central Administrative Trbiunal (for short 'the ld.Tribunal') -2- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
dismissing the Original Application dt.14.03.2014.
The facts of the case which culled out from the record are that the petitioner was appointed as Scientific Assistant 'B' on 19.05.1980 & further promoted on the post of Scientific Assistant 'E' and as Scientific Officer 'D' & 'E' on 01.06.2000 w.e.f. 01.02.1996 & w.e.f. 01.02.2001 vide order dt.20.09.2001 and became eligible for promotion under merit- promotion scheme on the post of Scientific Officer 'F', as initially alleged by him on 01.08.2006 having completed five years as Scientific Officer 'E'.
Later the facts revealed that none of the person junior to him was promoted on the post of Scientific Officer 'F' from 01.08.2006. Thus, his claim was that he has been denied of fair consideration while the promotions were made by the Selection Committee to the post of Scientific Officer 'F' w.e.f. 01.07.2009.
It is not in dispute that promotion to the post of Scientific Officer 'F' is a merit promotion under the merit-promotion scheme and the Standing Selection Committee evaluate the performance of officers eligible to be considered for promotion to higher grades taking into consideration the relevant criteria to assess merit, excellence in work and other attributes, as referred to in para-6 of the merit-promotion scheme, which is reproduced ad infra:-
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"6 . Evaluation of Performance 6.1 The Standing Selection Committee shall evaluate the performance of officers eligible to be considered for promotion to higher grades under the Merit Promotion Scheme duly taking into account the following criteria to assess merit, excellence in work, and other attributes:
(a) Individual contributions, excellence and achievements in the candidate's field of activities;
(b) Domain knowledge;
(c) Scientific & Technical Competence;
(d) Analytical abilites;
(e) Originality in approach to problem solving;
(f) Communication abilites;
(g) Potential to shoulder higher responsibilities;
(h) Ability to work in teams to harmonise benefits 6.2 The Senior Selection Committee, besides assessing the overall performance of a candidate as per the above criteria in (a) to (h) at para 6.1 above, shall also evaluate the candidates in respect of excellence in additional criteria and attributes such as consistency of high performance, broad vision, new initiatives in research, development in sectors of work related to the Department's overall functioning, proven leadership qualities, etc. Apart from satisfying the above, exceptional contributions made by an officer, innovations in his areas of work, holding of responsible positions in a successful manner for reasonable periods of tenure, publications in journals with high impact factor, timely deliveries against planned targets, exceptional level of productivity, etc., as applicable for areas of activities of individual officers, will also be considered as factors on which would be assessed in the process of consideration for promotion to higher grades.
6.3 The screened in candidates for promotion to posts carrying Grade Pay of upto Rs 7,600/- , shall be interviewed to assess their domain knowledge and skills by the appropriate Standing Selection Committee constituted by the Competent Authority for promotion to the next higher grade. Technicians up to and including the Grade of Technician G and other equivalent Technical staff shall be required also to undergo skill / trade test before being interviewed." Since the persons junior to the petitioner were promoted to the post of Scientific Officer 'F' under the merit-promotion scheme superseding his claim, that came to be questioned by him by filing of Original Application before the ld.Tribunal.
In the reply filed by the respondent before the ld.Tribunal and so also before this court, it is stated that considering his case for promotion from 01.07.2009 his preceding Confidential -4- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
Reports were considered by the Selection Committee and in all the years of period in question, he was failed to achieve the minimum benchmark which could make him eligible for promotion under the merit-promotion scheme and details and grading of his Confidential Report of the preceding years in question which was considered by the Standing Selection Committee while promotions were made to the post of Scientific Officer 'F' w.e.f. 01.07.2009, which reads ad infra:-
S.No. Year CR Point Range
Grading
1 2000-2001 A3 Good
2 2001-2002 C Indifferent but just worth retaining
3 2002-2003 C Indifferent but just worth retaining
4 2003-2004 B+ Average
5 2004-2005 B+ Average
6 2005-2006 B+ Average
7 2006-2007 B+ Average
The grading referred to by the respondents in the reply of the preceding years has not been questioned by the petitioner and his submission before the ld.Tribunal was that while downgrading his remarks opportunity of hearing was not afforded to him which is indeed below the benchmark, has caused great prejudice to him and in the absence of opportunity being afforded downgrading of remarks in his ACR could not be read to his prejudice while being considered for promotion to the post of Scientific Officer 'F' and if he had an -5- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
opportunity to defend downgrading of remarks is arbitrary and is not legally sustainable and in consequence deserves to be upgraded to the benchmark for which he is entitled to.
Indisputably, what has been recorded in the final grading for the period in question was not adverse remark and as per the practice and circular issued by the department, the communication is made to the reportee only if there was any adverse remark recorded and not any remark below the benchmark, as alleged, if recorded in the ACR in question and taking note thereof, the ld.Tribunal disposed of the Original Application vide order impugned dt.14.03.2014 holding that since he fails to achieve the benchmark which could make him eligible for promotion on the post of Scientific Officer 'F' w.e.f. 01.07.2009 no error was committed by the respondents in declining and superseding the claim for promotion and at the same time, the respondents were directed to communicate the ACRs which are below the benchmark with an opportunity to the petitioner/reportee to make representation and if such representation is made, the respondents were directed to decide the same expeditiously.
It is informed to this court that in compliance of order of the ld.Tribunal impugned dt.14.03.2014, all the ACRs of the preceding years in question were communicated to the petitioner & pursuant thereto the representations were submitted by him for upgradation which are decided by the -6- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
department and that has been separately challenged by the petitioner in Original Application before the ld.Tribunal, which is pending adjudication.
The main thrust of submission of counsel for the petitioner Sh.Mahendra Shah, Advocate is that the remarks recorded in his ACR for the preceding years in question since were below the benchmark, the respondents were under an obligation to communicate, in absence of the communication, such remarks which are below the benchmark could not be read prejudicial to his interest and post decisional hearing in the facts & circumstances of the case remains an empty formality at this belated stage and he deserves indulgence to be considered for promotion to Group 'F' and his rejection to the post of Scientific Officer 'F' under merit-promotion scheme by the Standing Selection Committee is wholly arbitrary and rejection of his candidature deserves to be interfered by this court.
In support of his submission, counsel placed reliance on the judgment of the Apex Court in State of Haryana Vs. P.C.Wadhwa, IPS, Inspector General of Police & Another reported in (1987) 2 SCC 602 and submits that delayed compliance is not substantial compliance under the law and in absence of communication within the reasonable time, he could not be deprived on being treated to be a person holding the ACR below the benchmark and rejection could not -7- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
be said to be fair in the eye of law.
Counsel further submits that even under the circular issued by the department which has been referred to under the Swamy's Compilation on Seniority & Promotion in Central Government Service, a procedure has been prescribed regarding communication of adverse remarks recorded in the ACR and his more emphasis is on para Nos.15 & 18 of the instructions and submits that in the absence of communication of adverse remarks and affording opportunity to him for improvement post decisional hearing is not a solution and his consideration for promotion in the facts of the case cannot be said to be fair and deserves indulgence of this court.
Per contra, counsel for respondent Sh.S.C.Gupta, Advocate while supporting order of the ld.Tribunal submits that either of the preceding years ACR from 2000-01 to 2006- 07 his grading is consistently much below the benchmark and under the merit-promotion scheme one has to maintain the minimum standard of benchmark i.e. grading of 'Very Good' which at least should not be below 'Good' and in none of his ACRs of the preceding years, he was holding the benchmark and that being so no error was committed by the respondents in rejecting his candidature to the post of Scientific Officer 'F' and submits that no error has been committed by the ld.Tribunal in rejecting his claim under order impugned and needs no further interference.
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It is not disputed that in July, 2009 the preceding ACRs which is to be considered by the respondents i.e. from 2004- 05 to 2007-08 and in the preceding year 2001-02 to 2006-07 and even thereafter he was not holding the minimum benchmark in any of the ACRs in question which could make him eligible in evaluating his performance to be considered under the merit-promotion scheme for the post of Scientific Officer 'F' while being considered by the Standing Selection Committee in its meeting w.e.f. 01.07.2009 and nothing in rebuttal has been filed by the petitioner in counter to justify for upgradation of his ACRs, indicated in para-3 of the reply and that being so, the grading of ACRs certainly disentitles him to be considered for promotion under the merit-promotion scheme where all the factors including the grading of ACRs are paramount consideration in evaluating the overall performance of the individual employee for promotion under the merit- promotion scheme.
As per the circular issued by the department, while filling the Confidential Report the practice was to communicate the ACR where adverse entries are recorded to the reportee for affording opportunity to him, whether it relates to integrity or any other adverse entry which can be noticed from para-19 of the circular, being relevant is reproduced ad infra:-
"19. Communication of adverse entries.- All adverse entries in the confidential report of Government servant, both on performance as well as on basic qualities and potential should be -9- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
communicated along with a mention of good points within one month of their being recorded. This communication should be in writing and a record to that effect should be kept in the CR Dossier of the Government servant concerned.
Only such of the adverse entries as are accepted by the countersigning authority, if any, need be communicated. The countersigning authority should, therefore, normally indicate whether it agrees or disagrees with the remarks of the reporting officer. It should also record additional remarks, wherever necessary, if the report is too brief, cryptic or vague. Along with the adverse entry, the substance of the entire report including what may have been stated in praise of the officer should also be communicated. The improvements made in respect of the defects mentioned in the earlier report should also be communicated to the officer in a suitable form. A copy of the letter communicating the adverse remarks duly acknowledged by the official concerned should be kept in the CR file and the fact of communication of the entries should be recorded in the report itself by the authority communicating them.
Great attention should be paid to the manner and method of communication of adverse remarks in order to ensure that the advice given and warning or censure administered whether orally or in writing shall, having regard to the temperament of the officer concerned, be most beneficial to him. The memo, forwarding the adverse remarks to the officer reported should be couched in such a language that it does not produce a sense of resentment in the officer reported upon and that it makes it clear to him that the intention of communicating these defects to him is that he should try to improve himself in respect of those defects. Remarks about the physical defects of the officers noted in the confidential reports need not be communicated. The grading of officers being done on the basis of the general remarks in the report should not also be communicated, even if it is adverse."
The Apex Court in Dev Dutt Vs. Union of India & Others reported in (2008) 8 SCC 725 examined the effect of entry which is below the benchmark and observed that it is an adverse factor since it eliminates the candidate from being fairly considered for promotion and irrespective of the nomenclature of the remarks/entry the effect of it is very much relevant as it determines whether it causes any prejudice to him while being considered for promotion. At the -10- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
same time, the rigours of the entry is important & not the phraseology.
In the given point of time, the grant of 'good' entry may not be of satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances of fair consideration for promotion and examining the scheme of Rules and principles of service jurisprudence observed under para Nos.16, 17 & 18 ad infra:-
"16. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. 'poor' entry) need to be communicated and not 'fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or to get some other benefit. For example, if the benchmark is that an incumbent must have 'very good' entries in the last five years, then if he has 'very good' (or even 'outstanding') entries for four years, a 'good' entry for only one year may yet make him ineligible for promotion. This 'good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.
17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1)Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India that arbitrariness violates Article 14 of the Constitution.
18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be -11- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
communicated since that would boost the morale of the employee and make him work harder."
This view was further confirmed by the Apex Court in Abhijit Ghosh Dastidar Vs. UOI & Others reported in (2009) 16 SCC 146 and para No.8 being relevant is reproduced ad infra:-
"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly, the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case, SCC p.738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
Later the Apex Court in Prabhu Dayal Khandelwal Vs. Chairman, UPSC & Ors. reported in 2015 (6) Supreme 692 and after judgment of the Apex Court the departments are certainly under obligation to communicate each of the remarks irrespective of the fact whether it is adverse or come in way of his promotion recorded in the ACR of the reportee.
Indisputably, what has been recorded in his ACR for the period in question is consistent from 2001-02 to 2006-07 and he is much below the benchmark and after the judgments of the Apex Court, of which reference has been made (supra), each of the remarks regardless of the fact whether it is adverse remark -12- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
or not has to be communicated but when his consideration was made for promotion to the post of Scientific Officer 'F' by the Standing Selection Committee from 01.07.2009 for the period in question, no error was committed by the department in not communicating the remarks since what is recorded was not adverse remarks & as per the practice being followed in terms of the circular at the relevant time and the ld.Tribunal was very conscious of the fact that since in the light of law laid down by the Apex Court each remark recorded in the ACR which is below the benchmark has to be communicated, department was granted opportunity to communicate the remarks/entry/grading recorded in the ACR of the petitioner of the preceding years which are under consideration and in compliance thereof, were communicated with liberty to the petitioner to make representation and after submission of representation that has been examined and rejected and as informed the petitioner has availed the remedy available to him & if not still can avail remedy but that is not open for consideration in the instant writ petition.
The Apex Court in the judgment reported in Prabhu Dayal Khandelwal (supra) while dealing with the question has not permitted now to call upon in communicating the ACR of the year 1997-98 & 1999-2000 for the reason that at such a belated stage much water has flown from the date of consideration and passing of judgment by the Apex Court in -13- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
July, 2015 and has been noticed by the Apex Court in para Nos.7 & 8 of the judgment assigning reason for which communication at such a belated stage may not going to serve any purpose but that is not in the instant case. At the same time in compliance of the order impugned communication was made and representation has been rejected by the department which is the subject matter of challenge in separate Original Application before the ld.Tribunal and is certainly open to be examined on merits without being influenced/inhibited by the observation made, independently in accordance with law.
The judgment of the Apex Court in the case of P.C.Wadhwa (supra) may not be applicable because it was a case where the Apex Court was examining the question as to whether the Home Secretary to the Government of Haryana was competent to write the ACR as reporting authority of the reportee who was none other than the Inspector General of Police, Haryana at the material time. At the same time, it was a case where adverse remark was recorded in the ACR of the reportee and communicated to him after 2 years & 3 months at the relevant point of time but the principal issue under consideration was the competence of the reporting authority in recording the adverse remark in the ACR of the reportee who was Inspector General of Police, Haryana.
After taking note of the submissions made, we find no error in the order impugned of the ld.Tribunal which may call -14- D.B. CIVIL WRIT PETITION NO.13291/2014 Jamuna Prasad Vs. UOI & Others.
for our interference.
Consequently, the instant writ petition is bereft of substance, accordingly stands dismissed. No costs. (DINESH CHANDRA SOMANI),J. (AJAY RASTOGI),J. Solanki DS, P.S.