Central Administrative Tribunal - Gauhati
Dr. Ajoy Roy vs Union Of India (Uoi) And Ors. on 27 July, 2004
Equivalent citations: 2005(1)SLJ243(CAT)
ORDER K.V. Sachidanandan, Member (J)
1. The applicant who is a Divisional Medical Officer in the Railway Hospital was not considered for the Junior Administrative Grade as per Annexure-I order of the Railway Board dated 18.3.2002 and his juniors were promoted and included in the list and his legitimate claim for the promotion was rejected without slating any valid reason. His representation dated 3.5.2002 was replied to by the Board slating that taking into account all the relevant factors the DPC did not find him suitable for empanelment/promotion to JA Grade. Aggrieved by the action of the respondents the applicant has filed this O.A. seeking the following reliefs:
"It is, therefore, prayed that Your Lordships would be pleased to admit the application, call for the entire records of the case, including the ACRs of the applicant and the minutes of the DPC held on 15.11.01, ask the respondents to show cause as to why the applicant should not be promoted to the Junior Administrative Grade and after perusing the cause shown, if any and after hearing the parties direct the respondents to promote the applicant to the next higher post of Junior Administrative Grade from the date when his Juniors were so promoted with all consequential benefits and/or pass any other order/orders as Your Lordships may deem fit and proper so as to grant adequate relief to the applicant."
2. The applicant further averred in the O.A. that the next higher post after Senior Scale in Divisional Medical Officer (DMO for short) is Junior Administrative Grade (JAG for short) which is required to be filled up by promotion. The applicant has completed five years of service as required by the recruitment rules in the Senior Scale on 25.2.2001 and nothing adverse in the ACR was communicated to him. The Railway Board vide Annexure-1 dated 18.3.2002 promoted ninety-two DMOs, out of which eighty-six were juniors to the applicant to JAG superseding the just and legitimate claim of the applicant to be so promoted. His juniors like Dr. Gautam Bhandopadhyay, Dr. S.K. Mukhopadhyay. Dr. Bhaskar Basak, R. Prabit Kr. Deb etc., who were juniors were promoted and his representation was also rejected on the ground that the DPC did not find him suitable. According to the applicant the selection must be on merit from amongst the officers ordinarily with not less than five years of service in the Senior Scale, But in this case the Board had constituted a DPC which considered the candidates on the basis of scrutiny of ACRs of the last five years preceding the dale of selection. Nothing adverse also was communicated to him.
3. The respondents have filed a detailed written statement contending that the selection was conducted under Rule 203 of Indian Railway Establishment (IREC for short) which are statutory rules framed under Article 309 of the Constitution of India. The posts in Administrative Grades are Selection posts. It is made wholly by selection and mere seniority does not confer any claim for such promotion. The procedure is laid down by the Ministry of Railways by letter dated 16.9.1989 (Annexure-R1) according to which advancement in an Officer's career should not be regarded as a mailer of course, but should be earned by dint of hard work, good conduct and result-oriented performance and potential for shouldering higher responsibilities, as reflected in the Annual Confidential Reports, and it should he based on a strict and rigorous selection process. Confidential Rolls are the basic inputs on he basis of which assessment is to be made by the Selection Committee. The applicant was considered, but not found suitable for empanelment for JAG taking into account all the relevant factors including his overall performance. The right of the applicant is limited to be being considered for promotion and not to promotion itself. He was not found fit on the basis of the performance as reflected in his ACRs and he would be continued to be considered in the future JAG panels, The mere absence of adverse entries in the ACRs does not mean that the applicants otherwise fit for promotion. Such entries in the ACR which are considered to adverse are only required to be communicated and in the absence in any such entries or remarks the question of communicating docs not arise. Being a selection post it is the comparative merit of all officers which are taken into consideration by the DPC. The applicant has not impleaded the other promoted officers who may be adversely affected in case his claim is accepted. Therefore, there is legal lacuna of non-joinder of parties.
4. Mr. G.K. Bhattacharyya and Mr. B. Choudhury appeared for the applicant and Mr. J.L. Sarkar and Mr. S. Sarma appeared for the respondents. The learned Counsel have taken us to the various pleadings placed on record, The learned Counsel for the applicant submitted that having fulfilled all the conditions, eighty-six juniors have superseded the applicant and the respondents having violated the procedure in not communicating the entries in the ACRs which has turned adversed to the applicant. The learned Counsel for the respondents, on the other hand, submitted that this being a process of selection and the bench mark for such selection has been fixed as 'Very Good'. The applicant has secured only 'Good/ which is not invariably an adverse remark, had not been selected to the post. The ACR entries all through the years of the applicant being 'Good' cannot be said to be adverse and that need not be communicated, but however, he has not reached the bench mark of 'Very Good' for considering for selection.
5. We have heard the learned Counsel for the parties and given due consideration to the arguments. When the matter came up for hearing the learned Counsel for the respondents produced the selection records for the verification of the Court and on perusal of the same we have seen that the ACR entries of the applicant is 'Good', whereas the Selection Committee had fixed the bench mark as 'Very Good' for selection. The learned Counsel for the respondents has taken our attention to circular dated 26.9.1989 of the Railway Board in regard to procedure for promotion for the Administrative Grades wherein Clause (d) of Assessment of Confidential Rolls reads as follows:
"The Selection Committee would not be guided merely by the overall assessment, if any, that may be recorded in the CRs. but will make its own assessment on the basis of the entries in the CRs."
Again, on the down bottom regarding the procedure for selection the following observation is made:
"For the purpose of promotion from J.A. Grade to S.A. and S.A. Grade to Additional Secretary's Grade (Rs. 7300-7600), the bench mark shall be 'Very Good'. For this purpose, the Selection Committee will grade the officers who are considered suitable for promotion as 'very good' or 'outstanding' Officers graded 'outstanding' will rank senior to all those who are graded 'very good' and placed in the select panel accordingly. Officers with the same grading will maintain their existing inter-se seniority."
Further, the learned Counsel for the respondents had also taken us to the circular dated 3.6.2002 under reference No. 2002/SCC/3/1 on the very same subject issued by the Railway Board in Para 9 it is stated as follows:
"The DPC would not be guided merely by the grading, if any, recorded in the ACRs but should make its own assessment on the basis of the entries in the ACRs, including the various parameters and attributes. The Committee shall also take into account whether the officer has been awarded any major or minor penalty or whether any displeasure of any superior officer or authority has been conveyed to him, as reflected in the ACRs. The DPC should also have regard to the remarks on the column of integrity."
Apart from that as per the circular Clause 12 (a) the bench mark for promotion from Senior Scale to JAG and SC would be 'Good.'
6. The learned Counsel for the applicant submitted that he has no quarrel with regard to the purpose for which these circulars are issued, but his contention is that though the circular dated 3.6.2002 cannot be strictly applied to in this case because the subject matter of the selection in the given case was on 15.11.2001 and the bench mark could have been 'Good' instead of 'Very Good.' His argument is that the Selection Committee had not applied its mind nor made any independent assessment on the merits of the candidates which should have been done as per these circulars. But the Committee has adopted once the ACR entries of the applicant as such without any further verification. Further, the case of the applicant is that even assuming that the entries of the applicant is 'Good' and the bench mark has been fixed as 'Very Good' that has adversely affected his consideration for promotion and it should have been communicated to him. We are fully aware of the dictum laid down by the Supreme Court that it is not the function of the Court to hear appeal over the decision of the Selection Committee and scrutinise the relative merit of the candidate since the Selection Committee is an expert body on the subject and such decisions can be interferred only when the procedure adopted is illegal and irregular affecting the selection.
(Ref. Durga Devi and Anr. v. State of Himachal Pradesh and Ors., AIR 1997 SC 2618).
Then what the Court has to evaluate is whether there is any illegality in the procedure adopted in the selection.
7. The guidelines for the preparation of Confidential Rolls are statutorily delineated in the IREC Vol. I which is reproduced as under:
"1607. Confidential reports on gazetted Railway servants must contain a full and frank appraisal of his work during the year, the trails of character whether pleasant or unpleasant, aptitude, personality and bearing, and etc,, which contribute to quality of his work as a gazetted Railway servant and his fitness for shouldering larger executive and administrative responsibilities. The reports must not be confined merely to general marks and off hand impressions so brief and casual as to convey little or no real meaning and the assessment must be based on failure of excellence in the work entrusted to the gazetted Railway servant.
1608. A gazetted Railway servant shall not ordinarily be given on unfavourable confidential report before an opportunity has been taken, preferably at a personal interview or, if that is not practicable, by means of a personal letter pointing out to him the direction in which his work has been unsatisfactory or the faults of character or temperament, &c. which require to be remedied. The manner and method of conveying to the gazetted Railway servant that his work needs improvement in certain directions must be such that the advice given and the warning or censure administered, whet her orally or in writing, shall, having regard to the temperament of the gazetted Railway servant, be most beneficial to him. If, inspite of this there is no appreciable improvement and an adverse confidential report has to he made, the facts on which the remarks are based should be clearly brought out.
1609. As a general rule, in no circumstances, should a gazetted Railway servant be kept in ignorance for any length of limes that his superiors, after sufficient experience of his work, are dissatisfied with him where a warning might eradicate a particular fault, the advantages of prompt communication are obvious. On the other hand, the communication of any adverse remarks removed from their context is likely to give a misleading impression to the gazetted Railway servant convened, The procedure detailed in Rule 1610 should therefore, be followed."
8. On going through the records submitted by the respondents and selection proceedings' we find that the applicant has acquired grading as 'Good.' whereas the bench mark for such selection as per the circular and by the Selection Committee has been laid down as 'Very Good'. Then the question that comes is whether the ACR 'Good' is adverse or not. Learned Counsel for the applicant has taken us to a decision reported in 1996(2) SCC 363 in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., in which the Supreme Court has observed that "Confidential report-Adverse remarks-Downgrading of the entry-When can be adverse?" The gradation falling from 'Very Good' to 'Good' that may not be ordinarily an adverse entry since both are positive grading. Even a positive confidential entry can perilously be adverse and to say that an adverse entry should he quantitatively damaging may not be true and the entry 'Good' which is perse not adverse will amount to be adverse when the bench mark is being put as 'Very Good'. Such a stale of affairs should not be permitted. Therefore, such information should have been informed to the employee and communicated the same. To fortify the above, it is also" to notice a decision of this Tribunal reported in (1996) 33 ATC 802 of the Central Administrative Tribunal, Allahabad Bench of a similar and identical case and held that "Remarks which have potential of adversely affecting and employee's career, held on facts, are adverse- Such remarks have to be communicated to the employee-Grading an employee as 'Good' and 'Average' when bench-mark for promotion is 'Very Good', held, are adverse remarks which should have been communicated to the applicant." Admittedly, the same position prevails in this case and the confidential report of the applicant is 'Good' which was not communicated at any point of lime to the applicant has adversely and prejudicety affected the selection of the applicant. We also find from the record that the Selection Committee which consisted of only Railway Officials without even a single member from the Medical Service has evaluated without any application of judicious mind and found the applicant unfit. On going through the entire record we could not find any cogent reason recorded except the gradation of ACR in the non-selection of the applicant. The legal position of such an entry in the ACR should have been communicated is not, admittedly, done in this case which is patent irregularity in the selection process, nor the Selection Committee made its mind applied. Therefore, we are of the considered view that the declaration that the applicant is unfit will not stand in its legs and the impugned action is to be set aside.
9. Regarding the other contention that the other selected candidates who may be adversely affected have not been made party to this O.A. also will not stand for the reason that the applicant is only challenging the matter of selection and he has no grievances against the other candidates.
10. In the conspectus of facts and circumstances we are of the considered view that the non-selection of the applicant on the basis of an uncommunicated adverse entry is not justified as per the legal position discussed above. Therefore, without disturbing the other selected candidates we direct the respondents to consider the case of the applicant afresh by holding a review DPC taking 'Good' as the bench mark for selection in the case of the applicant and pass appropriate orders within a time frame of three months and grant the applicant all consequential benefits. In any case if the applicant is found fit for such a selection he may be promoted to the next higher post from the date when his immediate juniors in the selection list is promoted with all consequential benefits.
The O.A. is allowed with the above observations. In the circumstances no order as to costs.