Central Administrative Tribunal - Ernakulam
P.P. Lonappan vs The Controller General Of Accounts on 20 November, 2015
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No. 818 OF 2012
Friday, this the 20th day of November, 2015
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
P.P. Lonappan, S/o. P.A. Pappu,
Retired Assistant Accounts Officer,
Central Public Works Department,
Residing at 31/848, Ponnurunni,
Vyttila (P.O), Cochin - 19. . . . . . Applicant
(By Advocate Mr. Biju Abraham)
Versus
1. The Controller General of Accounts,
Ministry of Finance, Department of Expenditure,
New Delhi - 110 003.
2. Union of India, represented by the
Secretary to the Government of India,
Ministry of Finance, Department of Expenditure,
New Delhi - 110 003.
3. The Executive Engineer,
Kottayam Central Division,
Central Public Works Department,
Public Library Building, Shashtri Road,
Kottayam - 686 001. ..... Respondents
(By Advocate Mr. N. Anil Kumar, Senior PCGC)
The application having been heard on 04.11.2015, the Tribunal on
20.11.2015 delivered the following:
ORDER
Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER The applicant herein was the applicant in O.A No. 69/2005, decided by this Tribunal. The applicant approached the Tribunal against the denial of promotion to the next higher grade of Pay and Accounts Officer in the scale of pay of 7500-250-12000 and consequential benefits in preference to his juniors in the cadre of Assistant Accounts Officer in the scale of pay 7450-225-11500. The O.A was disposed of by the Tribunal by order dated 07.11.2006, directing the respondents to communicate all the entries below the benchmark grading for the check period for promotions, considered in the DPC meeting held on 31.03.2003 and 19.05.2004, within a period of two months from the date of receipt of a copy of this order. In respect of each one of them, the applicant shall submit his representations within one month of receipt of the ACRs. Such representations shall be duly considered and decision taken by the appropriate authorities within one month of receipt of such representations in the light of the prevailing rules, regulations, instructions and orders. Within three months of such decision having been made, an adhoc DPC should be held to consider the case of the applicant and final decision taken without causing any prejudice to the persons already promoted. If the applicant is promoted as a result of decisions taken in pursuance of the above exercise, he shall be duly entitled to all consequential benefits.
2. In the O.A No. 69/2005, applicant had contended that the basis for promotion to the post of PAO was seniority cum fitness. The respondents did neither contest nor challenge this plea. As the respondent did not comply with the direction issued by the Tribunal, applicant filed a Contempt Petition as CP(C) No. 43/2007. While the Contempt Petition was pending consideration before this Hon'ble Tribunal the 1st respondent filed W.P(c) No. 22718/07 before the Hon'ble High Court of Kerala with the plea to set aside the entire decisions/direction of this Hon'ble Tribunal, on the basis of Recruitment Rules, 2000 for the post of PAO and Para 6.3.1 of Swamy's Manual on Establishment and Administration indicating that the Benchmark for promotion to the post of PAO is 'good' and selection cum seniority and not 'very good' and seniority cum fitness.
3. The Hon'ble High Court did not accept any of the pleas of the respondents in this writ petition and accordingly dismissed the same on 12.11.2008. In support of their pleas in the writ petition, the respondents had produced a copy of Recruitment Rules 2000 for the post of PAO, notified vide Notification No. GSR 750 (E) dated 25.09.2000 indicating the basis for promotion to the post of PAO as Selection cum Seniority and not by Seniority cum Fitness, as contended by the applicant in the Original Application and as per relevant Rules the benchmark grading applicable is only 'Good' and not 'Very good', as erroneously surmised by this Hon'ble Tribunal. This Hon'ble Tribunal may be pleased to note the fact that the applicant filed the Original Application only in the year 2005, whereas the Recruitment Rules were notified in 2000. The applicant caused a notice for the implementation of the O.A order by his representation dated 09.12.2008. The respondents forwarded an office memorandum dated 19.01.2009 communicating adverse remarks in the ACRs of applicant and to file representation, if any. The applicant moved a Contempt Petition before the Central Administrative Tribunal, Ernakulam Bench on 02.02.2009 as C.P (C) 22/09 which was dismissed by the Tribunal against which the applicant had filed W.P (C) No.21227/09. The Hon'ble High Court without entertaining the challenge against the dismissal of the contempt directed the applicant to make a reply to the communication dated 18.03.2009. The applicant sent a detailed representation dated 12.09.2009. The applicant approached the Tribunal for the implementation of the Annexure -1 order by filing M.A No. 640/2010. After filing of the implementation petition as directed by the Tribunal it was informed by the respondent to the applicant through their counsel appearing before the Tribunal on 18.02.2011 to the effect that the DPC had considered promotion case of the applicant and the recommendations are submitted to the competent authority for approval. Thereafter, the respondent by its communication dated 02.05.2011 further informed the applicant that the promotion of the applicant shall be on notional basis with effect from 05.06.2003 and he shall be entitled to seniority and notional fixation of pay in the grade without arrears of salary. The Annexure A-7 order did not say anything about the further promotion which was legally due to him as per Annexure A-1 order of CAT specifically directing to grant all consequential benefits to the applicant. Immediately thereafter applicant filed a contempt petition against the respondent as CP(C) 49/2011 before this Tribunal. In the contempt application the applicant contended that the consequential benefits as contemplated by Annexure A-1 order includes further promotion to the next higher post of Senior Accounts Officer and all monetary benefits. The Tribunal was pleased to dismiss the contempt petition directing the applicant to file a fresh representation to the 1st respondent for his promotion and salary.
4. Aggrieved by Annexure -10 order the applicant approached the Hon'ble High Court by filing O.P (CAT) No. 3063/2011. The Hon'ble High Court was pleased to give a direction to the 1st respondent to grant all consequential benefits in the light of Annexure -1 within time fixed by the Hon'ble High Court with a direction to the applicant to submit a detailed representation showing the benefits required as per Annexure -1 order. Based on the direction in Annexure - 11 judgment by the Hon'ble High Court applicant had submitted a representation to the 1st respondent ventilating his grievance with request to grant all consequential benefits which includes arrears of salary and consequential promotion as Senior Accounts Officer. The 1st respondent without considering anything contained in Annexure A-1 order and Annexure 10 & 11 judgment of this Hon'ble Tribunal and High Court rejected the request of the applicable and did not grant any benefit even as found by this Hon'ble Tribunal.
5. The prayer of the applicant in this O.A filed is to 'direct the 1st respondent to promote the applicant to the post of Pay and Accounts Officer with effect from 30.04.2003 and grant him consequential promotion to the post of Senior Accounts Officer, with effect from 01.04.2006 with all salary, service pensionary benefits.'
6. The respondents in their reply statement submit that the applicant already stands promoted as Pay & Accounts Officer retrospectively from 05.06.2003 and he has been found unfit for further promotion as Senior Accounts Officer with effect from 01.04.2006, on account of adverse entries in his ACRs for the period 2002-2003 and 01.04.2003 to 27.01.2004, which were duly communicated to him. The applicant's case in the present O.A is that his promotion as Pay & Accounts Officer should be antedated from 05.06.2003 to 30.04.2003, and he should be further promoted as Senior Accounts Officer with effect from 01.04.2006. It is submitted that the relief claimed by the applicant are barred by res judicata and limitation as the applicant in his previous O.A No. 69 of 2005 filed before this Hon'ble Tribunal had claimed that he should be promoted as Pay and Accounts Officer from the date of promotion of his immediate junior. The applicant has accordingly been promoted as Pay & Accounts Officer with effect from 05.06.2003 that is from the date of promotion of his immediate junior, Ms. Sarasa Guruswamy. It is only after this Hon'ble Tribunal's order dated 07.11.2006, the applicant raised the issue that he should be given promotion from a date anterior to 05.06.2003 which is barred by res judicata. Further, the applicant's non-promotion as Senior Accounts Officer is a direct outcome of adverse entries in his ACRs for the year 2002-03 and 01.04.2003 to 27.01.2004, which were duly communicated to him and his representation was considered and rejected. The adverse remarks have attained finality and therefore, the applicant cannot claim promotion as Senior Accounts Officer in the face of these adverse entries.
7. The applicant while working as Assistant Accounts Officer in the office of the Executive Engineer, Kottayam Central Division, CPWD during the period 2003-2006 was considered for promotion to the grade of Pay and Accounts Officer in March 2003. The DPC meeting held on 31.03.2003 declared the applicant unfit for promotion. Aggrieved, applicant filed O.A No. 69 of 2005 before this Hon'ble Tribunal. This Hon'ble Tribunal after hearing the parties passed Annexure - I order vide judgment dated 07.11.2006. The Hon'ble Tribunal directed the respondents to communicate all the entries below the benchmark grading for the check period for promotions considered in the DPC meeting held on 31.03.2004 and 19.05.2004, consider his representation, hold adhoc DPC and if promoted grant all consequential benefits. The respondents challenged the decision of this Hon'ble Tribunal before the Hon'ble High Court of Kerala vide WP (C) No. 43 of 2007. The Hon'ble High Court stayed the operation of the orders of the Hon'ble Tribunal. On 12.11.2008 Hon'ble Court dismissed the Writ Petition on the ground that the Hon'ble Supreme Court decided in the case of Dev Dutt v. Union of India that below benchmark grading should be communicated to the Government servant. On receipt of the judgment of the Hon'ble High Court the respondents communicated all adverse remarks and below bench gradings to the applicant vide Annexure 3 order. The applicant submitted his representation after nine months on 12.09.2009. The representation was examined carefully by the competent authority and it was decided to convene a review DPC to consider the promotion of the applicant to the grade of PAO. The review DPC met on 17.02.2011 found the applicant fit for promotion as PAO. Accordingly, the applicant was promoted as PAO with effect from 05.06.2003 i.e from the date of promotion of his immediate junior Ms. Sarasa Guruswamy vide order dated 27.04.2010. Hence, necessary orders promoting the applicant as Pay & Accounts Officer on notional basis (as the applicant had since retired from government service with effect from 30.04.2006) was issued on 27.04.2011.
8. The respondent convened review DPC to consider the promotion of the applicant as Senior Accounts Officer on 19.05.2011 with effect from 01.04.2006 the date on which his junior Ms Sarasa Guruswamy was promoted and found him unfit for promotion after considering the records i.e ACRs of the applicant for the period from 2000-2001 to 2004-2005. The applicant was also informed accordingly. The allegations of the applicant that review DPC was never convened is baseless. The petitioner in O.A No. 69/2005 filed before the Hon'ble Tribunal sought the following relief:
'Direct the respondents to consider the applicant for promotion as Pay and Accounts Officer, in preference to his juniors and to grant him the consequential benefits of promotion as Pay and Accounts Officer with effect from the date of promotion of the applicant's next junior.' Ms. Sarasa Guruswamy was the next junior of the applicant and the respondent promoted the applicant from the date of promotion of his next junior. His seniority has not been disturbed. The seniority of the Pay and Accounts Officer is maintained on the basis of the seniority of the officer as Assistant Accounts Officer irrespective of his date of joining as Pay and Accounts Officer. The Pay and Accounts Officer namely Mr. R.S. Suyal and Mrs Usha Khanna who were promoted as Pay and Accounts Officers from earlier date i.e 30.04.2003 were placed below the petitioner in the seniority list of Pay and Accounts Officer. This seniority is counted for further promotion to the grade of Senior Accounts Officer. The petitioner was given notional promotion as Pay and Accounts Officer with effect from 05.06.2003 i.e from the date of promotion of his immediate junior and was given due seniority and notional fixation of pay in the grade. The date of promotion of Pay and Accounts Officers differs as some officers had joined the post earlier and some joined the post later due to non-relieving from the present post held by them and other circumstances but they were placed in the seniority list of Pay and Accounts Officer as per their seniority list in the grade of Assistant Accounts Officer irrespective of their date of joining as PAO.
9. The applicant submitted a representation against the said adverse remarks on 03.10.2005 (Annexure R-2). Accordingly, the competent authority i.e Pr. CCA, Central Board of Excise & Customs after considering the representation of the applicant decided that those entries in ACRs for the year 2002-2003 and 01.04.2003 to 27.01.2004 be treated as adverse vide letter dated 02.03.2006 / 06.03.2006 (Annexure R-3). The respondents fully complied with the directions of the Hon'ble Tribunal and passed reasoned orders in this regard.
10. Heard the learned counsel for the applicant and respondent and the written submissions made.
11. The respondent in his detailed reply produced copies of confidential reports wherein it is observed that adverse remarks have been made. We have perused the respondent's correspondence with the applicant regarding communication of adverse remarks as directed by the order of this Tribunal in O.A 69/2005 for period from 1998-99, 1999-2000, 2000-2001 and 2001-2002 and the further communication of adverse remarks for the year 2002-2003 and 2003-2004 prior to considering his case in the review DPC for promotion to Senior Accounts Officer (SAO) held on 19.05.2011.
12. The applicant's prayer for ante dating his promotion as Pay and Accounts Officer (PAO) from 05.06.2003 to 30.04.2003 is barred by res judicata and limitation. The applicant had in earlier O.A 69/2005 prayed for promotion as PAO from the date of his immediate junior. This has already been complied with retrospectively from 05.06.2003, the date of promotion of his immediate junior Ms. Sarasa Guruswamy.
13. Th applicant's second prayer is for consequential promotion to the post of SAO with effect from 01.04.2006. The respondent argues that the applicant is unfit for promotion as SAO on account of adverse entries in his Annual Confidential Reports for period 2002.2003 and 2003-January,2004.
Copies of the ACR produced by the respondent as Annexure R-2 was perused. The adverse entires were communicated vide letter of R2 (38) and R2 (39) on 10.11.2004 to the applicant. The applicant instead of representing his case against adverse entries, challenged the communication of adverse entries by an incompetent authority. Applicant was informed on 23.09.2005 that the Principal Accounts Officer having administrative control can communicate the adverse remarks as the reviewing authority had retired and he was once again requested to furnish a reply to the communication of the adverse entries. In view of non-receipt of communication from the applicant the entries in the ACR were treated as adverse with the approval of Pr. CCA /CBEC on 06.03.2006. On a perusal of the photocopies of ACR produced as Annexure R2/6-2/17 it is noted that on account of the adverse entries the applicant has been graded as 'average' in the two years with appropriate entries in the relevant columns. A review Departmental Promotion Committee Meeting was held on 19.05.2011 which considered 48 deferred cases, 3 cases for vacancy for year 2010- 2011 and the case of the applicant. Minutes of the Review DPC at Annexure R2/2 were perused. The DPC considered the case of the applicant and found him 'unfit' for promotion.
14. Hence, the respondent has considered the case of applicant for promotion to PAO and promoted him with effect from the date of his immediate junior. The respondent has also considered the case of applicant for promotion to the post of Senior A. O and found him unfit for promotion on account of adverse remarks noted thereon and the 'average' grading. There is no illegality in those orders / proceedings.
15. The Original Application is dismissed. No order as to costs.
(Dated, the 20th November, 2015.)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax