Central Administrative Tribunal - Delhi
Y.P. Mittal vs Government Of India Through on 26 September, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No. 4091/2011 Reserved on: 16.05.2014 Pronounced on: 26.09.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Y.P. Mittal, 1192, Pocket B & C, Sector A, Vasant Kunj, New Delhi 110 070. Applicant (By Advocate: Sh. Abhay Kushwaha) Versus Government of India through Secretary, Central Water Commission, Ministry of Water Resources, Sewa Bhawan, R.K. Puram, New Delhi 110 066. Respondent (By Advocate: Sh. Krishna Kumar) O R D E R Dr. B. K. Sinha, Member (A):
The instant OA under Section 19 of the Administrative Tribunals, 1985 assails the order dated 04.11.2010 rejecting the applicants representation dated 01.07.2010 for upgradation of his below benchmark grading Good/ Average in respect of the period from 04.05.2001 to 31.03.2002; 02.05.2002 to 31.03.2003; 01.04.2003 to 31.03.2004; 20.08.2004 to 31.03.2005 and 01.04.2005 to 31.03.2006. 2. The applicant has prayed for the following main relief(s), by means of this OA:-
To quash and set aside impugned order contained No.7/36(ii)/2010-CM&V/851 dated 04.11.2010 of the Ministry;
To direct the respondents to include the name of the applicant in order No.3/6/2011-Estt.1 dated 14.07.2011 at the appropriate place for his upgradation to the pre-revised higher pay scale applicable to the post of Director at par with the officers mentioned in the above order;
To direct the respondent to revise the grade of pay of the applicant as applicable to the upgraded post that has been illegally denied to him;
To direct the respondent to issue necessary instructions to the concerned Authorities to revise the pension of the applicant accordingly and arrange to make payment of the arrears of pay and pension to the applicant.
3. The facts of the case, in brief, are that the applicant superannuated from the respondent organization on 30.11.2006 from the post of Deputy Director/Executive Engineer. On 17.06.2010, the respondent organization sent him the ACRs for the period from 04.05.2001 to 31.03.2002; 02.05.2002 to 31.03.2003; 01.04.2003 to 31.03.2004; 20.08.2004 to 31.03.2005 and 01.04.2005 to 31.03.2006 containing Good/Average gradings in all the ACRs for his comments, if any. On 01.07.2010, the applicant represented against the gradings given to him in the afore ACRs on ground of the law laid down by the Honble Supreme Court requiring for their communication. The grievance of the applicant is that on 14.07.2011, the Ministry granted Non-Functional Upgradation (hereinafter referred to as NFU) w.e.f. 01.07.2006 to others including his juniors, but he was overlooked for the same. Aggrieved, the applicant sent a legal notice dated 26.08.2011 in this regard to which the respondents did not respond thus was deprived of the benefit of NFU.
4. The ground adopted by the applicant in the OA is that the respondent authority failed to reveal the ACRs for the period under reference to the applicant during his service tenure, and the same were communicated only on 17.06.2010 after a lapse of period of 5-8 years. This act on the part of the respondent is stated to be in gross violation of clause (iii) of OM dated 30.01.1978 and, therefore, the afore mentioned ACRs need to be disregarded. No other grounds were urged by the applicant during the course of the arguments. However, the applicant referred to paragraph 2 of the judgment in U.P Jal Nigam and Others Versus Prabhat Chandra Jain and Others [1996 (2) SCC 363] and Dev Dutt Vs. Union of India & Others [2008 (8) SCC 725].
5. The respondent has filed a counter affidavit rebutting the points raised in the OA. The learned counsel for the respondent during the course of the arguments assailed the averments made by the applicant as being incorrect factually and on ground of law. The respondent submits that the DPC was held on 01.07.2011 and prior to that, the below benchmark gradings in ACRs under reference were communicated to the applicant, vide OM dated 17.06.2010 (page 131 of the paper book). The respondent further submits that prior to the period 2008-09, as per the existing instructions, only adverse ACRs were required to be communicated along with a mention of good points and qualities. It was only after the judgment in the case of Dev Dutt versus Union of India & Others (supra) that the OM dated 13.04.2010 came to be issued. Under this OM, the below benchmark ACRs were required to be communicated prospectively. However, where an employee is to be considered for the next promotion in a future DPC, his below benchmark ACRs, prior to the period 2008-09, were also to be communicated to the concerned employee by giving him an opportunity to represent. As there was no provision for communicating the below benchmark gradings in the ACRs to the concerned individual employee, the contentious ACRs under reference for about four years were communicated to the applicant, vide OM dated 17.06.2010 for considering him for grant of NFU as per the rules. The respondent further submits that the applicant submitted a single representation in respect of all the ACRs dated 01.07.2010, which was duly considered by the competent authority and the ACRs of the applicant were upgraded, wherever found deserving. The respondent has alleged that the applicant has deliberately not brought these facts on record. The parts of the ACRs of the applicant, which could not be upgraded for one reason or the other, were communicated to him, vide the impugned order dated 04.11.2010. The name of the applicant along with all other eligible candidates as per NFU rules was considered by the Screening Committee in its meeting held on 01.07.2011 but he was not found fit to be granted the NFU. Therefore, there is no substance in the contention of the applicant that he could have been granted the NFU. The respondent has relied upon a decided case of this Tribunal in the case of Dr. Vijendra Singh & Others versus The Chairman, Agricultural Scientists Recruitment Board & Others (OA Nos.1570/2006 and 495/2007 decided on 29.04.2008.
6. The only issue required to be adjudicated by us is as to whether the ACRs have been communicated as per the requirements of OM dated 13.04.2010 or there is any infringement of the OMs dated 30.01.1978 or of 13.04.2010 or of the pronouncements of the Honble Supreme Court in the two afore mentioned cases.
7. It is a well admitted fact that prior to the year 2008-09, the practice of communication of below benchmark gradings in the ACR did not exist under the Government instructions/guidelines. In this regard, the relevant portion of the OM dated 30.01.1978 is extracted hereinbelow:-
The Annual Reports should be recorded within one month of the expiry of the report period and delay in this regard on the part of the reporting officer should be adversely commented upon. If the officer to be reported upon delays submission of self-appraisal, this should be adversely commented upon by the reporting officer;
xxx xxx xxx All adverse remarks in the Confidential Reports of Govt. Servants, both on performance as well as on basic qualities and potential, should be communicated along with a mention of good points, within one month of their being recorded. The communication should be in writing and a record to that effect should be kept in the C.R. dossier of the Govt. servants concerned. In other words, clause (iii) of the above OM requires communication of the adverse remarks in the Confidential Reports of the Government servants both in terms of performance as well as basic qualities and potential. Clause (iii) further requires that good points and potential should also be communicated to the concerned Central Government employee. This OM nowhere requires the below benchmark ACRs to be communicated to the concerned employee. In the case of U.P Jal Nigam and Others Versus Prabhat Chandra Jain and Others (supra), the matter mainly related to communication of adverse entries and the Honble Supreme Court held that all what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. Otherwise, the adverse entries would need to be communicated as such. It was for the first time in the case of Dev Dutt versus Union of India & Others (supra), the Honble Supreme Court held that the ACRs, which were below benchmark, would also adversely affect the government employee as he would stand deprived of the benefit of promotion. Therefore, they were also required to be communicated in addition to adverse entries or where downgrading of ACRs was involved. The Honble Supreme Court in the case of Dev Dutt versus Union of India & Others (supra) observed and held as under:-
41. In our opinion, non-communication of entries in the Annual Confidential Re-port of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Divi-sion Bench.
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the 'good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation.If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.
44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Com-mittee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.
8. However, the case in hand is different. It is quite apparent from the papers on record that entries were communicated to the applicant vide Memo dated 17.06.2010. It is also an admitted fact that the applicant submitted his representation on 01.07.2010, which was duly considered by the competent authority and parts of which were rejected. The impugned order dated 04.11.2010 itself records the reasons for non-acceptance of the representation. The order clearly mentions in paragraph (a) & (b) [page 12 of the paper book] that the two ACRs for the period 20.08.2004 to 31.03.2005 and 01.04.2005 to 31.03.2006 could not be reviewed as the reviewing officer had since retired. The comments of the reporting officer on the representation of the applicant were obtained who mentioned that the applicant had not made any comment in the report on the actual entries in the CR nor expressed any disagreement with the entries and, therefore, he saw no reason to change the assessment.
9. Moreover, we are totally swayed by the fact that after the decision in Dev Dutt versus Union of India & Others (supra), the Government of India had issued OM dated 13.04.2010, which provides as under:-
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.
10. It transpires from the records that before the Screening Committee held on 01.07.2011, the below benchmark ACRs were communicated to the applicant vide OM dated 17.06.2010, his representation was received and the competent authority duly considered the same and disposed of appropriately. Therefore, to our mind, there is no irregularity committed on part of the respondent and/or any deviation from the provisions of OM dated 13.04.2010. We also find that the Screening Committee has duly considered the name of the applicant and found him unfit. Report of the Committee is placed at page 272 of the paper book. We further find that a coordinate Bench of this Tribunal in the case of Dr. Vijendra Singh & Others versus The Chairman, Agricultural Scientists Recruitment Board & Others (supra) has considered the similar issue and held as under:-
34. Further held in Marripati Nagaraja v. The Government of A.P., 2007 (11) SCR 506 that non-questioning the validity of selection process and participation in the selection without any demur estops and precludes a candidate to question the selection process.
35. In Union of India and others v. Vinodh Kumar and others, 2007 (2) SCC (L&S) 792 it is ruled that candidates having taken part in the selection process knowing full well the procedure laid down are estopped from challenging the selection.
43. In Secretary, Department of Home Secretariat, A.P. & others v. B. Chinnam Naidu, 2005 SCC (L&S) 323, as to the desirability of a person to be appointed in Government service it is ruled that whether a person is fit to be appointed or not, it is a matter within the special domain of the Government.
11. Having considered the submissions made and the material placed on record, we do not find any reason to interfere with the impugned order rejecting the applicants representation for upgradation of his below benchmark grading, nor we have noticed any infringement of the OMs dated 30.01.1978 or 30.04.2010, and, therefore, this Application is bereft of merit.
12. In the result, the instant Original Application fails and is dismissed but without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/