Central Administrative Tribunal - Delhi
Debabrata Das vs Union Of India Through on 31 August, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3568/2013
Reserved on 22.05.2015
Pronounced on: 31.08.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Debabrata Das
Working as Adviser
Perspective Planning Division
Planning Commission,
215, Yojana Bhawan,
Sansad Marg, New Delhi. Applicant
(By Advocate: Ms. Harvinder Oberoi)
Versus
1. Union of India through
Secretary,
Ministry of Finance,
Department of Economic Affairs,
IES Cadre Division,
North Block, New Delhi.
2. Chief Economic Adviser,
Ministry of Finance,
Department of Economic Affairs,
North Block, New Delhi.
3. Union Public Service Commission through
Secretary,
Dholpur House, Shahjahan Road,
New Delhi 110 011. Respondents
(By Advocates: Mr. Gyanendra Singh and
Sh. Ravinder Aggarwal)
O R D E R
By Honble Dr. B.K. Sinha, Member (A):
In the instant OA, the applicant is aggrieved by the impugned order dated 11.06.2012 whereby his claim for promotion with retrospective effect has been rejected.
2. The facts of the case, in brief, are that the applicant was working in the Junior Administrative Grade (hereinafter referred to as JAG) as Director in the Indian Economic Service and became eligible for being promoted to the SAG in the year 2006. In 2006, DPC considered the applicant for promotion but declared him unfit. On 13.04.2010, the DOP&T issued OM directing communication of below benchmark ACRs prior to 2008-09 to the employee concerned by giving an opportunity to represent against the same. For the sake of clarity, the relevant portion of the OM dated 13.04.2010 is reproduced hereunder:-
Subject: Below Benchmark gradings in ACRs prior to the 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.
The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-a-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting / Reviewing Officers if they are still in service. The Commission has further observed that in majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries / Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting / Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority.
The below benchmark ACR for the year 1999-2000 was communicated to the applicant on 19.05.2010 in accordance with the above OM dated 13.04.2010. The applicant represented against the aforesaid below benchmark ACR on the ground of having been given by incompetent authority, which was accepted and his ACR was upgraded to Very Good vide OM dated 02.06.2010 and the applicant was promoted to SAG on 19.01.2012.
3. The applicant has sought the following relief(s):-
A. To call for records of the case.
B. To quash and set aside the impugned order dated 11.06.2012 directing the respondents to convene a review DPC for considering promotion of applicant from retrospective date i.e. from the date of promotion of his immediate juniors;
C. To allow the Original Application, with all consequential benefits to the applicant, including seniority and arrears of pay with interest @ 12% per annum.
D. To grant cost of the applicant.
E. Any other relief which this Honble Tribunal may deem fit may also be granted.
4. The applicant has relied upon the decisions of the Honble Supreme Court in Dev Dutt versus Union of India & Ors. [2008 (8) SCC 725] and Abhijit Ghosh Dastidar versus Union of India & Ors. [2009 (16) SCC 146] to contend that once his below benchmark ACR has been upgraded, the same should have been placed before a review DPC constituted for this purpose which had originally denied promotion to the applicant on the basis of the below benchmark ACR. It is the case of the applicant that upgradation of ACR entitles him to get scrutinized by a DPC which has once declared him unfit on account of his ACR being below benchmark. The applicant has also relied upon the observation of the DPC, which reads as under:-
Review DPC will be held only if the DPC has not taken all material facts into consideration or if certain facts have not been brought to the notice of DPC or there have been grave errors in the proceedings of the DCP. The applicant has, therefore, represented for conducting a review DPC which has been rejected vide the impugned order dated 11.06.2012. The applicant has further relied upon the scope of review DPC as pointed out by him, which reads as under:-
Review DPCs should be convened also to rectify unintentional mistakes such as
(a) Where eligible persons were omitted to be considered;
(b) Where ineligible persons were considered by mistakes;
(c) Where the seniority of a person is revised with retrospective effect resulting in variation with the list placed before the DPC;
(d) Where some procedural irregularity was committed by DPC;
(e) Where adverse remarks in the APARs of an officer were toned down or expunged after the DPC had considered his case;
(f) Where certain vacancies had not been reported due to error or omission of vacancies that existed at the time of holding of DPC.
5. The respondent nos.1 & 2 have filed a joint counter affidavit while the respondent no.3 has filed a separate counter affidavit. The respondents have submitted that the ACR gradings of the applicant for the year 1998-99 and 1999-2000 were below benchmark. Since prior to issue of DOP&T OM dated 13.04.2010 there was no provision for communicating below benchmark grading in the ACR, the same was not communicated to the applicant. They have further submitted that the applicant had been considered for promotion from JAG/NFSG to SAG by the DPCs held on 12.07.2006, 12.07.2007, 03.07.2008 and 02.03.2009 but was declared unfit on account of his below benchmark ACR grading for the years 1998-99 and 1999-2000. It is an admitted fact that on 19.05.2010, below benchmark ACR for the year 1999-2000 was communicated to the applicant which was reckonable by the DPC held on 24.10.2011 for the vacancy year 2010-11 with instructions that he can file representation directly to the Ministry/ Department/Organization concerned. His ACR for the period 1999-2000 was upgraded to Very Good in consideration of the representation and he was declared fit by the DPC held on 24.10.2011, and was accordingly promoted to SAG vide DEA Order No.13016/2/2011-IES dated 19.01.2012. The respondents have further submitted that as per DOP&T OM dated 13.04.2010 if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee would be given an opportunity for filing representation against the same on communication. In case his below benchmark ACRs are upgraded, he would be considered by a review DPC for future promotion only where the ACRs are reckonable for such promotion. The respondents have contended that OM dated 13.04.2010 does not provide that all such cases where the ACRs are upgraded will entitle the employee to have a review DPC conducted.
6. The sole issue to be considered by us is as to whether the upgradation of ACR for the period 1999-2000 would entitle the applicant to have a review DPC conducted to antedate his promotion in terms of the DOP&T OM dated 13.04.2010?
7. The respondents have further contended that the upgraded ACRs were reckonable for future promotions only, and, therefore, denied that they were considered by the DPC held for the vacancy year 2010-11. It has been further emphasized in the additional affidavit filed on behalf of the respondents that the applicant was not considered for Non Functional Upgradation (hereinafter referred to as NFU) to Higher Administrative Grade (hereinafter referred to as HAG) level. The respondents further contended that in accordance with Schedule-V of Indian Economic Service Rules, 2008 (as amended on 16.02.2010), the eligibility criteria for promotion/NFU to HAG, provides as under:-
An officer in the Senior Administrative Grade with three years of regular service in the grade or officers with twenty five years of regular service in Group-A post in the Service out of which at least one year of regular service should be in the Senior Administrative Grade.
8. The aforementioned Service Rules further provide that first January of the year to which the vacancies pertain shall be the date for determining the eligibility of officers for promotion to various grades. One Avatar Singh Sahota was considered for NFU to the HAG level by the Screening Committee held on 12.09.2012 for the year 2013-14. The relevant date for determining the eligibility of officers for promotion to various grades for the year 2013-14 is, therefore, 1st January, 2013. Since the applicant has been promoted to SAG Grade of IES w.e.f. 19.01.2012, he was not eligible for NFU to the HAG level for the year 2013-14 as he had not completed one year of qualifying service at SAG level.
9. The applicant finds support from a decision of the Honble High Court of Delhi in case of Union of India & Another versus V.K. Vashisht [WP(C) No.5036/2012 decided on 19.12.2012] wherein the orders of constituting DPC passed by this Tribunal had been in challenge on the basis of decision in Dev Dutt versus Union of India & Ors.s case (supra). In that OA, the petitioners had submitted two points that the issue regarding the consideration of promotion retrospectively was pending before a Larger bench of the Honble Supreme Court in the matter of Union of India versus A.K. Goel & Others [SLP (C) No.15770/2009] and, therefore, the Tribunal should have awaited the decision of the Honble Supreme Court; in the second place, the upgradation of ACRs of the employee would be considered for promotion in a future DPC only and would not re-open the past. The Honble High Court held in para 16 as under:-
16. The said OM has been issued pursuant to the instructions of DOP&T and has come in compliance of the judgments rendered by the Supreme Court as noted above. It cannot be interpreted to mean that an employee, who had below benchmark ACRs prior to the declaration of law, upon upgradation of those ACRs would be entitled to consideration for promotion in future alone. Such an interpretation would defeat the very purpose of the benefit intended to be given. The fact that below benchmark ACRs are upgraded pursuant to a representation made in that behalf goes to show that the concerned authority recognizes and subsequently corrects an erroneous assessment made by it at the first instance. To restrict the benefit of such an admitted correction for the purpose of future DPCs would deprive the concerned employee of valuable rights. It is an admitted position that the respondent was considered unfit for promotion on 3 different occasions and thereby deprived of legitimate promotion for 3 years. The benefit thus accrues to him from the date he was first denied promotion on the basis of the erroneous assessment. The Honble High Court in Union of India v. K.K. Vashisht (supra) that case has also relied upon the decision in Union of India & Ors. versus Krishna Mohan Dixit & Ors. [WP (C) No.6013/2010 decided on 08.10.2010) and Union of India & Ors. versus Haldhar Prasad [WP(C) No. 3937/2012 and WP(C) No. 3970/2012 decided on 18.07.2012. In para 18, the Honble High Court held as under:-
18. In another case reported as Union of India and Ors vs. Haldhar Prasad, WP(C) No.3937/2012 and WP(C) No.3970/2012, decided on 18.07.2012, a similar case of subsequent upgradation of below benchmark ACRs was considered by this Court and it was observed:
4. We have heard counsel for the parties at some length. We find that the below benchmark ACRs had not been communicated. The Supreme Court in Dev Dutt vs. Union of India and Ors., (2008) 8 SCC 725, was of the opinion that the non-communication of ACRs would be arbitrary and as such would be violative of Article 14 of the Constitution of India. That decision had come on 12.05.2008. After that, it was well known that the below benchmark ACRs ought to have been communicated before they were to be considered against the incumbent. The fact that they were not communicated, and, it is because of that Dr Prasad was found unfit in the DPC held in 2009, meant that the valuable rights of Dr Prasad had been violated. Consequently the Tribunal has provided relief to Dr Prasad by directing that a review DPC be constituted particularly in view of the fact that subsequently those very below benchmark ACRs have been upgraded by the competent authority.
5. We see no reason to interfere with this finding of the Tribunal. We also see no reason to alter the direction given by the Tribunal that in case Dr Prasad is found fit for promotion to the post of Senior Administrative Grade, he would be paid actual wages. The Tribunal was right in directing that his pay would be fixed notionally on the promotional post. In view of the foregoing, both the writ petitions are dismissed. There shall be no order as to costs. Likewise, coordinate Bench (Jabalpur Bench) of this Tribunal in Neeraj Khare versus Union of India & Ors. (OA No.845/2011 decided on 12.09.2013] has taken a similar stand, relevant portion whereof is being extracted herein below:-
8. A larger Bench of the Honble Supreme Court in the matters of Sukhdev Singh Vs. Union of India and others, AIR 2013 SC 2741, on reference by a Bench consisting of two Honble Judge of Supreme Court, has affirmed the view taken in the matters of Dev Dutt (supra) and held that every entry in ACR poor, fair, average, good or very good must be communicated to him/her within a reasonable period and further held that the decision of the Honble Supreme Court in the matters of Satya Narain Shukla Vs. Union of India and others, (2006) 9 SCC 69 and K.M.Mishra Vs. Central Bank of India and others, (2008) 9 SCC 120, and other decisions of the Honble Supreme Court taking a contrary view, are declared to be not laying down a good law.
10. The respondent no.3 (UPSC) has relied upon a decision of the Honble High Court of Delhi in Union of India versus S.S. Bansal [WP(C) No.3269/2010 decided on 25.10.2010] where the respondent in that case joined service as an Assistant Engineer in the year 1968 and earned promotion to the post of Executive Engineer in the year 1980. His claim for second upgradation under the ACP Scheme matured in the year 1999. The Screening Committee considered the ACRs of the respondent for preceding 5 years and found him unfit for the reason that prescribed benchmark was 3 Very Good reports which was not achieved. The Screening Committee had met on 25.02.2000. It was noted that by the time the Screening Committee met, two disciplinary proceedings were pending against the respondent; one of which resulted in a penalty of severe displeasure being conveyed to the respondent vide order dated 25.02.2000, and the other being dropped vide order dated 16.01.2003. In the meanwhile, the respondent superannuated from service on 31.07.2000. The issue involved was as to whether on the facts of the case the ratio of law in Dev Dutts case (supra) can be applied. The Honble High Court held as under:-
14. Dev Dutts case (supra) decision cannot be interpreted to upset events of the past as also such departmental actions which were predicated on the law as it was founded in the past. The Departmental Screening Committee in the instant case had met on 25.2.2000. The Review Screening Committee had to consider the candidature of the respondent as of said date and we see no reason as to why law as understood as on said date be not followed.
15. Accordingly, we hold that in view of the special facts of this case which we have noted hereinabove, the Tribunal has seriously erred in directing compliance with the ratio of law laid down in Dev Dutts case (supra). However, the ratio in afore cited case is different from the one under consideration because there is no departmental proceedings contemplated against the applicant. It will appear from para 15 of the aforesaid judgment that it was rendered in the special facts of that case, and as such, in our view, it is of no help to the applicant, the facts of the instant case not being identical.
11. We further find that the Honble Delhi High Court in V.K. Vashisht (supra) relying on its two previous judgments, i.e. UOI v. Krishna Mohan Dixit (supra) and UOI v. Haldhar Prasad (supra) upheld the direction of this Tribunal to hold review DPC after upgradation of the ACRs which were below benchmark. The contention of the respondents that the words of the OM dated 13.04.2010 imply in such a manner that application of upgraded ACRs would only be reckonable for future promotion, in our view, does not find support because the fact remains that previous promotion had been made on the basis of ACRs, which stood scrutiny. Therefore, it would be illogical and against the principles of equity to deny him promotion from the date he had been reckoned and promotion had been denied.
12. In view of the enunciation of law by the Apex Court as well as the High Court, we are of the view that there is no point to deny promotion to the applicant with retrospective effect i.e. from the date of promotion of his immediate juniors by convening a review DPC. We order accordingly directing the respondents to comply with the above directions within a period of three months from the date of receipt of certified copy of this order. Accordingly, the instant OA stands disposed of with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/