Central Administrative Tribunal - Delhi
Dr. (Mrs.) Amrita Gupta vs Director General on 5 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.4346 of 2012 Orders reserved on :25.2.2014 Orders pronounced on : 05.03.2014 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) Dr. (Mrs.) Amrita Gupta, w/o Dr. S.K. Gupta, 7303 Prem Nagar, Shakti Nagar, Delhi-110007. .Applicant (By Advocate : Shri W.N. Gujaral) versus Director General ESI Corporation Panchdeep Bhawan, CIG Marg, New Delhi-110002. Union of India, Represented By, The Secretary, Ministry of Labour, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001. .Respondents (By Advocate: Shri Ankur Chhibber) O R D E R SHRI SHEKHAR AGARWAL, MEMBER (A) :
Following relief has been sought in this case:-
issue a direction to the respondents that the applicant herein be granted the SAG grade w.e.f. the date on which her juniors have been conferred the SAG grade.
2. The facts of the case are that the applicant is working as Insurance Medical Officer with the respondents. She joined service on 2.6.1980 and is presently working as Chief Medical Officer (NFSG) w.e.f. 2.1.2004. Thus, she has been continuously with the respondents for more than 32 years. Her contention is that as per the extant rules, she is entitled to be promoted to the SAG grade w.e.f. 29.10.2008 under the Dynamic Assured Career Progression Scheme (DACP). She has stated that she was first considered for promotion in the DPC held on 18.2.2009 but was not promoted. Therefore, she filed an OA bearing No.3327/2009 before this Tribunal along with some other members jointly who were aggrieved by the decision of the DPC. This OA was decided on 29.7.2010 whereby the said OA was dismissed as withdrawn with liberty given to file separate OAs for getting benefits of SAG. The applicant has separately made RTI queries through which she came to know that her ACRs for the years 2002-03, 2003-04, 2004-05 and 2006-07 have been graded as Very Good, but her ACR for the year 2005-06 has been graded as Good. The applicant filed a representation on 8.3.2009 in which she contended that since she had four Very Good ACRs and one Good ACR, she should be promoted to SAG level. She again represented on 26.4.2010 emphasizing that the promotion to SAG level under DACP Scheme is time bound and that she fulfilled all the criteria for such promotion. While no reply was received to her representation, the applicant received a letter dated 12.7.2011 on 22.7.2011 from the respondents by which she was intimated that her ACR for the years 2005-06 and 2007-08 have been graded as Good and that if she so desires she could submit a representation within 10 days against these gradings, as the next DPC was scheduled to be held on 4.7.2011. The applicant submitted her representation on 16.8.2011 in which she requested that her ACRs for the years 2005-06 and 2007-08 may be ignored as invalid and infructuous. However, the applicant again received a letter dated 12.7.2011 on 25.8.2011 in which it was mentioned that her ACRs for the years 2005-06 and 2007-08 have been graded as Good and she was again given 10 days time to make a representation. The applicant replied to the same informing that she had already submitted her representation. She received a letter on 14.2.2012 in which it was acknowledged that her representation dated 16.8.2011 will be placed before the DPC. The respondents issued Office Order No.531/2012 dated 4.10.2012 in which Medical Officers juniors to the applicant were promoted but the applicant was ignored. The contention of the applicant is that the applicant has been discriminated against as one Dr. Satya Bansal who had average record was promoted to SAG grade vide Order No.442 of 2011 dated 27.7.2011. The applicant also stated that in OA 4173/2010 in the case of Dr. Shubh Chand Jain vs. DG ESI Corporation and another, this Tribunal, vide its Order dated 10.5.2011, issued directions to the respondents to convene review DPC to consider the case of Dr. Shubh Chand Jain for his placement in SAG grade. Similarly in the case of Dr. (Mrs.) Nirmal Singh vs. DG ESI Corporation and another (OA No.43/2010), this Tribunal directed on 10.8.2010 that the respondents ignore the below benchmark ACRs for the years 2001-2002 and 2002-03, ignoring the downgrading given by the reviewing officer for the year 2000-01, consider ACRs of earlier years in place of below benchmark ACRs and convene review DPC to assess the suitability of the applicant for placement in the SAG grade. The applicant has also drawn our attention to the judgment of the Honble Supreme Court of India in the case of Abhijit Ghosh Dastidar vs. Union of India and others in Civil Appeal No.6227 of 2008 dated 22.10.2008 to say that the Honble Supreme Court has directed that below benchmark entries should not have been taken into consideration for promotion as they had not been communicated to the applicant. The Honble Apex Court had directed to consider the grading of previous years and give retrospective promotion to the applicant therein. Further the applicant has stated that in OA No.1644/2009 in the case of Dr. V.P.S. Punia vs. Union of India and others decided on 16.2.2010, the Tribunal had considered the question of non-communication of adverse remarks in the ACR and directed to ignore the same for considering the case of the applicant for promotion to SAG grade. On the basis of above submissions, the applicant has pleaded that similar directions be issued in her case as well.
3. The contention of the applicant is that no benchmark is prescribed for granting SAG grade to those who had completed 20 years of regular service. Therefore, the DPC should have appreciated this. Moreover, as laid down by the Honble Supreme Court in the case of Abhijit Ghosh Dastidar (supra), the DPC should have ignored the below benchmark ACRs which had not been communicated to the applicant and should have considered her case by assessing ACRs of previous years. By not doing so, they have violated the law laid down by the Honble Supreme Court. On these grounds, the applicant has pleaded for allowing her OA.
4. In their reply, the respondents have opposed the averments of the applicant. They have stated that though DACP Scheme upto the grade of SAG is based on length of service without linkage to vacancies, yet it is the work and performance of a candidate that qualifies him for future advancement. Further, they have stated that all their Office Orders issued on recommendations of DPCs held on 18.2.2009, 19.3.2010, 21.7.2011 and 6.9.2012 are in order. These promotion orders were issued after the DPCs recommended promotion of those candidates based on their work and performance for the relevant period. The applicant was not meeting the eligibility criteria. The applicant was having record which was below benchmark and hence, could not be promoted. Her name had in fact been considered by the DPCs held in February 2009, March 2010, July 2011 and September 2012. However, the DPCs held in February 2009 and March 2010, assessed her as unfit. The DPCs held on 21.7.2011 and 6.9.2012 deferred her promotion case.
5. The respondents have further stated that the competent authority examined her representation and did not accede to her request of upgradation of her below benchmark APARs. Thereafter, a review DPC was held on 6.9.2012 which decided that current DG, ESIC and member of DPC may make a recommendations about below very Good grading and deferred her case. Therefore, review DPC in her case for the year 2010-11 is yet to be held.
6. As regards promotion of certain other candidates while leaving out the applicant is concerned, the respondents have stated that DPC itself a quasi judicial body which makes its own objective assessment in respect of cases under consideration. It is free to devise its own method of assessment based on remarks on ACR/APAR. In the case of the applicant, DPCs were held on different dates under chairmanship of different officers but none of them found the applicant fit for promotion. The respondents have, therefore, pleaded that this OA be dismissed.
7. We have considered the submissions made by both the sides and have perused the material on record.
8. First of all, the contention of the applicant that promotion to SAG grade be made on the basis of her length of service without assessment of her performance as reflected in her ACRs is not acceptable. As pointed by the respondents in their reply, the placement in SAG is on the basis of length of service without linkage to vacancy but only the candidates having suitable performance are to be promoted. There performance is to be assessed by the DPC as reflected in the ACRs. The benchmark prescribed for such promotion is Very Good and this is usually followed. Hence, this contention of the applicant that she be promoted purely on the basis of length of service is unacceptable.
9. We also cannot accept the averment of the applicant that since one Dr. Satya Bansal, who has average record was promoted, she also should be given the same benefits. The respondents have clearly stated that all promotions have been made pursuant to the recommendations of the DPCs only. Dr. Satya Bansal was thus assessed as fit for promotion by the DPC. This Court cannot sit in judgment over the assessment of the DPC.
10. From the facts narrated above, it is clear that two of the ACRs of the applicant, namely, for the years 2005-06 and 2007-08 were below benchmark. These were first communicated to the applicant vide letter of respondents dated 12.7.2011. The applicant submitted her representation on 16.8.2011. Thus, it is clear that when DPCs were held on 18.2.2009 and 19.3.2009 and 21.7.2011, the below benchmark ACRs had not been communicated to the applicant and her representation against the same had not been decided. It was only in the DPC held on 6.9.2012 that the case of the applicant was considered after the competent authority had examined her representation and not acceded to her request for upgradation of below benchmark APARs. This review DPC has yet to give its finding as on 6.9.2012. It had decided to defer her case. It is thus clear that the respondents have yet to take a final decision regarding the applicants promotion. They have stated that review DPC to consider her case for the year 2010-11 is yet to be held.
11. Regarding her prayer for ignoring the below benchmark APARs and considering the remarks of preceding years in accordance with the directions of the Honble Supreme Court in the case of Abhijit Ghosh Dastidar (supra), learned counsel for the respondents argued that the Honble Supreme Court in their subsequent judgments in Civil Appeal No.5892 of 2006 in the case of Sukhdev Singh vs. Union of India and others decided on 23.4.2013 and in Civil Appeal No.2872 of 2010 and other connected cases in the case of Union of India vs. A.K. Goel and others decided on 20.11.2013 have held that the law laid down in Abhijit Ghosh Dastidar (supra) was not a good law. Hence, the applicant cannot now claim relief on the basis of the judgment in the case of Abhijit Ghosh Dastidar (supra). Further, counsel for the respondents relied on the judgment of the Honble High Court of Delhi in Writ Petition (Civil) No.6013/2010 and other connected cases in the case of Union of India vs. Krishna Mohan Dixit decided on 8.10.2010 in which the following has been observed:-
12..Abhijit Ghosh Dastidars case, as noted by us hereinabove follows the law laid down in Dev Dutts case, but makes a departure with respect to the final direction issued for the reason the Supreme Court found that Abhijit Ghosh Dastidar had superannuated and it was in said context the Supreme Court did not direct further follow up action as per the law laid down by the Supreme Court in Dev Dutts case. It is apparent that the direction in Abhijit Ghosh Dastidars case has to be traced through the power of the Supreme Court under Article 142 of the Constitution of India.
16. A reading of the Tribunal?s order in Krishna Mohan Dixit case and the other cases goes to show that in all these cases, the Tribunal with respect to the Annual Confidential Reports which were adverse and which were prior to three years of the date of DPC, has directed to ignore the same (if they were below the bench mark and to go back relying upon Abhijit Ghosh Dastidars case which as stated above was an observation in the peculiar facts of that case and does not lay down any binding precedent.
12. Thus, it is clear that the accepted law now is that the directions of the Honble Supreme Court given in the case of Abhijit Ghosh Dastidar (supra) were only in the context of the facts of that case and can be traced through the power of the Apex Court under Article 142 of the Constitution of India. These directions cannot be applied to other cases.
13. It is true that following the judgment of the Honble Supreme Court in the case of Abhijit Ghosh Dastidar (supra), this Tribunal had decided several cases by giving directions to ignore the below benchmark ACRs and consider record of preceding years. Many of the cases such as the cases of Dr. Shubh Chand Jain (supra), Dr. (Mrs.) Nirmal Singh (supra) and Dr. V.P.S. Punia (supra) fall in that category. The applicant has pleaded for similar relief. However, now following the judgments cited above by the respondents, the position has changed. It is now incumbent on the authorities to communicate the below benchmark APARs and give an opportunity to the person concerned to make a representation against the same. In case, there is the representation is accepted and entries are upgraded then the authorities are under obligation to hold a review DPC. Now they are no more required to ignore the below benchmark APARs and consider the remarks of preceding years even if the recording/reviewing officers have retired. In the instant case, we notice that the respondents have communicated the below benchmark APARs to the applicant, though belatedly, and have also considered her representation against the same. They have also placed the matter before review DPC which deferred its decision. Thus, the only requirement now is to reconvene the review DPC so that final decision in the case of the applicant can be taken.
14. In our opinion, this OA can be disposed of by giving direction to the respondents to convene the review DPC within a period of two months from the date of receipt of a copy of this order. Ordered accordingly. Thereafter, further action be taken as per the findings of DPC. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
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