Central Administrative Tribunal - Delhi
Dr. R.S. Ahlawat vs Union Of India Through on 10 February, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1483/2008
New Delhi this the 10th day of February, 2009.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K. Joshi, Vice-Chairman(A)
Dr. R.S. Ahlawat,
Associate Professor,
Department of Medicine,
Maulana Azad Medical College & LNH
Hospital,
(Govt. of National Capital Territory of Delhi),
New Delhi-2.
R/o A-65, Sector-41,
Noida-201301(UP). . Applicant
(Applicant in person with Sh. Sher Singh, authorized representative)
Versus
1. Union of India through
Secretary,
Ministry of Health and Family Welfare,
Nirman Bhawan,
New Delhi-1.
2. Ministry of Personnel through
Secretary,
North Block,
New Delhi-1.
3. Govt. of National Capital Territory of Delhi
through Principal Secretary,
Department of Health,
New Delhi-2.
4. DEAN,
Maulana Azad Medical College & LNH Hospital,
(Government of National Capital Territory of Delhi),
Bahadur Shah Jafar Marg,
New Delhi-2.
5. Dr. Ashok Grover,
the Then Associate Professor,
Department of Medicine,
GTB Hospital, Delhi-95.
(through Respondent No.1)
6. Dr. T. Sundaraman,
Professor, Department of Medicine,
Jipmer, Pondicherry,
(through Respondent No.1)
7. Dr. M.K. Daga,
Professor, Department of Medicine,
Maulana Azad Medical College & LNH Hospital,
(Government of National Capital Territory of Delhi),
New Delhi-2.
(through Respondent No.1) . Respondents
(through Sh. V.S.R. Krishna, Advocate)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A) Dr. R.S. Ahlawat, Associate Professor of Medicine Maulana Azad Medical College under the Government of NCT of Delhi, the Applicant herein, is aggrieved that he has not been promoted as Professor of Medicine in the teaching sub-cadre of Central Health Services (CHS), whereas his immediate juniors, the sixth and seventh Respondents in this Application, have been promoted with effect from 21.10.1999. The following relief is asked for:
a. To issue an order directing the respondent to conduct a review DPC without further delay and to consider the case of the applicant for such promotion to the post of Professor from the date due for his promotion, i.e. 11-10-1998 and to grant all consequential benefits to the applicant from the date of promotion as further delay will be detrimental to the interests of the applicant and of justice.
2. The relevant undisputed facts, as gleaned from the OA and the reply of the Respondents disclose that the Applicant was appointed as Assistant Professor of Medicine in the Specialist Grade II of the teaching sub-cadre of the CHS and posted at Maulana Azad Medical College, New Delhi with effect from 11.10.1990. He was promoted with effect from 11.10.1992 to the post of Associate Professor. The sixth and the seventh Respondents were promoted by the same order as the Applicant with effect from 8.01.1993 and 9.01.1993 respectively (Annex A-4). The Applicant was selected for a foreign assignment and approval of the competent authority was communicated to him by letter dated 28.01.1998 (Annex A-6). Initially it was for a period of three years, which was later curtailed to one year by corrigendum dated 13.02.1998 issued by the first Respondent (Annex R-II). The Applicant joined his assignment in Malaysia on 12.02.1998. The Applicant was served a Memorandum of Charge dated 5.12.2000, alleging unauthorized absence from 11.02.1999 as he did not return from his foreign assignment after one year. He eventually returned to India on 12.08.2002. The enquiry culminated in major punishment of reduction of pay by two stages in the time scale of pay for a period of three years with further direction that he would earn increments of pay during the period of such reduction and the reduction will not have the effect of postponing the future increments of his pay. The order of the President, imposing the penalty is dated 13.08.2007.
3. Meanwhile, the Applicant became eligible for promotion to the post of Professor in 1998, after completing eight years of service. The Departmental Promotion Committee (DPC) met in 1999. As noted above, the sixth and the seventh Respondent were recommended for promotion and were promoted with effect from 8.01.1999 and 9.01.1999 respectively. The Applicant was not promoted. There were subsequent meetings of DPCs in 2003, 2004 and last on 21.08.2007, yet the Applicant has still not been promoted.
4. It has been submitted on behalf of the Applicant that the Respondents have been giving contradictory reasons for not promoting him by stating that (i) his Annual Confidential Reports (ACRs) have not been available; (ii) he was not found fit by the DPC; and (iii) he has not been promoted because of pendency of some enquiry against him. There was no enquiry pending against the Applicant at the time he became eligible for promotion. Our attention has been drawn to paragraph (d) of the Applicants rejoinder, which reads thus:
(d) their own contradictory and changing from one reply to another, containing in totality that the applicant was considered by DPC held on 25.6.1999, 4.5.2000, 25.5.2001 and found unfit by those DPC and in DPC held on 21.8.2007 his case was deferred due to non-availability of ACRs for the relevant years and also due to imposition of penalty for three years w.e.f. 13.8.2007.. It is further contended that any adverse remark in his ACRs has never been communicated to him. Any remark below the prescribed bench mark was also not communicated to him.
5. The Applicant has also relied on this Tribunals order dated 7.11.2007 in Rajeev Chauhan Vs. Govt. of NCT of Delhi and others, OA No. 134/2007 to buttress his argument that the OA, challenging the Applicant not being promoted in 1998, would not become barred by time and that the Applicant cannot be visited with adverse civil consequence because of the Respondents negligence in not maintaining the ACRs for the period of consideration by the DPC.
6. Yet another contention on behalf of the Applicant is that the expression fit means that there should not be any adverse entry in the character roll of the concerned person at least for last three years and no disciplinary proceedings should be pending against him. It is stated thus in the rejoinder affidavit, to which our attention was drawn by the Applicants authorized representative:
On the other hand the respondents have never communicated to the applicant any adverse remarks/downgrading below bench mark or non-availability of ACRs and further not honouring the decision of the apex court the Regarding (sic) the term Fit or not yet Fit in UOI (sic) V. Administrator Delhi Administration & Others, 1991 Supp. (2) SCC 635 [correct reference is Dharam Vir Singh Tomar Vs. Administrator, Delhi Administration and Others] holding that the expression fitness means that there should not be any adverse entry in the character role (sic) of the concerned person at least for last three years and no disciplinary proceedings should be pending against him.. It is argued that there has never been any adverse entry in the Applicants ACR since the beginning of his career and no disciplinary proceeding was pending against him in 1999, when the DPC met to consider promotion to the post of Professor.
7. Strong reliance has also been placed on the common order dated 15.09.2006 in Dr. Sudarshan Mondal & Ors. V. Union of India and Others in a batch of OAs No. 755, 756 and 1131 of 2005 of the Kolkata Bench. We shall consider this later in this order.
8. The learned counsel for the Respondents, on the other hand, would argue that there was no contradiction in the stand taken by the Respondents. The Applicant was not promoted at different times for different reasons. He was not promoted in 1999 because the DPC, which met in 1999 did not consider him fit for promotion. The learned counsel contended that he was not considered fit in that year owing to the fact that his ACRs did not meet the prescribed bench mark. The Applicant was considered by the subsequent DPCs also but was found unfit. It is further stated that in the DPC held on 21.08.2007, the name of the Applicant was deferred due to non-availability of ACRs for the relevant years and also because of punishment awarded to him by order dated 13.08.2007 in a departmental proceeding pending since 5.12.2000.
9. We have given our anxious consideration to the arguments advanced on behalf of the parties and minutely perused the pleadings.
10. The Applicant was eligible for promotion in 1998. He was not found fit by the DPC, which considered his case in 1999 because his ACR gradings did not meet the bench mark for promotion. The Applicant was aware of the fact that he had been overlooked for promotion, at least from the year 2002 when he returned to India yet he did not approach the Tribunal for relief for six years. The order of this Tribunal in Rajeev Chauhan Vs. Govt. of NCT (supra), which he has cited in his cause to advance the argument that the case would not be barred by limitation, if the decision of the D.P.C. was taken due to the fact that ACRs were missing would have no application in the instant case. First, in this case that is not the stand of the Respondents that some ACRs were missing in 1999 and in subsequent DPCs and these have been stated to be missing for the DPC of 21.08.2007 only. Second, the Applicants contention is based on total misreading of the order in Rajeev Chauhan (supra) case. In that case the Applicant had not been considered for promotion in 1997 because his ACRs were not available. He was not considered unfit. He was pursuing his case and was assured by the respondents therein that they were trying to locate his ACRs. In these circumstances, this Tribunal held that limitation, as prescribed in Section 21 of Administrative Tribunals Act, 1985, would not bar the OA from consideration because final order has never been passed in regard to the Applicants promotion.
11. The Applicants reliance on Dharam Vir Singh Tomar (supra) is also utterly misplaced. It has been wrongly assumed that the Honourable Supreme Court has laid down the law that fitness means that the employee should not have adverse entry in ACR for at least last three years and no disciplinary proceeding is pending against him. This is specifically in the context of grant of Selection Grade to the teachers, which was to be given on the basis of seniority subject to Fitness. The issue in this case was also not regarding the definition of fitness. The appellant before the Honourable Supreme Court had been overlooked for grant of Selection Grade on the ground that he had become surplus. The Supreme Court noted that petitioners junior had been promoted. He had better educational qualifications than his junior and as per the prescribed conditions, he was fit because there were no adverse entries in his ACRs for last three years and no departmental proceedings were pending. This case would thus not in any way help the cause of the Applicant because in the case in hand the prescribed condition is that the employee should meet the prescribed bench mark to be eligible for promotion.
12. We have perused the order of the Kolkata Bench in Dr. Sudershan Mondal and others. Although the proceedings of the DPC in this case were set aside on several grounds, yet it also mentioned that the applicant in one of the OAs therein had not been communicated the gradings in the ACRs, which were below the prescribed bench mark. It held that these should have been communicated and the DPCs recommendation was vitiated due to this.
13. We are not inclined to give the Applicant any benefit on this account. In Ashok Kumar Aneja Vs. Union of India and others, OA No.24/2007, a larger Bench of this Tribunal, in its order dated 7.05.2008 had held that gradings in the ACRs of an employee, which are below the prescribed Bench mark should be communicated to the employee and his representation should be considered. However, it was also held that the order would not provide unrestricted licence for litigation by reopening old cases. It held that [P]ast cases where decisions have been taken by the DPC and supersession brought about, are not to be permitted to be reopened. But where such decisions have already been subjected to challenge before the Tribunal or where the decision of the DPC had been arrived at only on or after 07.05.2007, such restrictions may not be applicable. The Applicant was considered unfit by the DPC held in 1999. Even if he did not come to know about it in that year as he was on an overseas assignment, he came to know about it in the year 2002. He has taken no action to challenge his being overlooked for promotion. The Applicant has approached this Tribunal only on 16.07.2008. The ACRs pertain to a period before 1997-98. Even if Applicant were to give his representation after more than a decade, how would it be practical for those who recorded the ACRs, if they are still in service, to respond to the representation. The Applicants OA suffers from serious delay and laches.
14. Non-availability of ACR after the year 2000 would be of no consequence because the Applicant had been served a Memorandum of Charge in the year 2000 itself, which culminated in major penalty by order dated 13.08.2007, as mentioned in a preceding paragraph. However, it has been contended that he was considered in later years also but was found unfit. In 2007, he could not have been considered by the DPC, held on 21.08.2007 as a major penalty had been inflicted on him on 13.08.2007. He could now be considered only after his punishment has run its course in three years from 13.08.2007.
15. On the basis of the above discussion, we find no merit in the OA, which is dismissed. No costs.
(L.K. Joshi) (V.K. Bali) Vice-Chairman (A) Chairman /dkm/