Document Fragment View

Matching Fragments

2. The Original Application No. 553 of 2014 was filed by the respondent aggrieved of the orders dated 22.10.2010, 06.11.2012, 23.01.2014 and 04.04.2014 and seeking direction to promote him at Senior Administrative Grade (SAG) level for the panel year 2008-09. The respondent was initially appointed as Medical Officer, Central Government Health Scheme and in due course, he was promoted in Junior Administrative Grade. The petitioners published a list of eligible candidates in the month of January/February, 2010 for consideration of their promotion to SAG, in accordance with the eligible criteria. The respondent was served with a letter issued by the petitioner indicating that he has been assessed 'Good' by the Reporting and Reviewing Officer in the ACR for the year 2006-07, which is below the benchmark for promotion to Super Time Grade. The respondent preferred representation against the said below benchmark remark in the ACR, which, apparently, remained pending. However, on 22.10.2010, the petitioners published a list of 533 Medical Officers, who were promoted to the post of SAG for the panel year 2008-09, whereby large number of juniors to the respondent were allowed promotion. However, the same was denied to the respondent on the ground that his ACR for the year 2006-07 was assessed as 'Good', which was below the benchmark, i.e., 'Very Good' for promotion to the post of SAG. Whereafter, vide Office Memorandum dated 07.07.2011, it was indicated that the competent authority has considered the representation for upgradation of below benchmark grading of ACRs, whereby the grading of the respondent as 'Good' for the year 2006-07 was retained. The respondent preferred a fresh representation for upgrading the below benchmark ACR. However, by communication dated 06.11.2012 the respondent was informed that there was no ground for upgradation of below benchmark grade of ACR for the period of 2006-07 and that the view of Reporting/Reviewing Officers are to be taken into consideration only when they are in service and not after their retirement. Further communications made also pertaining to the grading of the year 2007-08, met the same fate. Feeling aggrieved, the present OA was filed.

4. Submissions have also been made that uncommunicated ACRs were required to be ignored in view of the law laid down by Hon'ble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India and others : (2009) 16 SCC 146.

5. Counter was filed by the petitioners, inter alia, indicating that on account of failure of the respondent to meet the requisite benchmark for promotion to SAG, his candidature was rightly rejected by the DPC. Submissions were made that the representation made by the respondent was appropriately considered by the competent authority and his grading was retained as 'Good'. Further submissions have been made that the instructions issued vide DoPT OM No. 21011/1/2006 dated 28.03.2006 specifically provide that below benchmark gradings were not required to be communicated and therefore, non-communication in this regard was of no consequence.

7. It was vehemently submitted by learned counsel for the petitioners that though the DPC for promotion at SAG level was held on 26.05.2010, and those found fit were recommended for promotion by the DPC and were promoted. However, in terms of the OM dated 13.04.2010, cases of doctors whose recommendable ACRs were having below benchmark grading, were returned by UPSC for taking necessary action and the case of the respondent was also returned by the Commission as his ACR for the year 2006-07 was graded below benchmark. Whereafter, based on the directions contained in OM dated 13.04.2010, the below benchmark grading was communicated to the respondent on 29.07.2010 and after consideration of his representation, the same was retained by order dated 07.07.2011. Based on the determination made on 07.07.2011, the UPSC considered the case of the respondent in the DPC held from 12 to 15 of December, 2011 and assessed him unfit and therefore, the plea sought to be raised regarding consideration of uncommunicated ACR by the DPC, apparently, has no substance. Further submissions have been made that the determination which was made by the competent authority on the representation of the respondent against below benchmark ACR is based on the material available and therefore, the same could not have been disturbed only on account of the fact that the Reporting/Reviewing Officers had since retired and therefore, the order impugned passed by the Tribunal deserves to be set aside.

13. Besides the above, the rejection order dated 06.11.2012, inter alia, reads as under:

"OFFICE MEMORANDUM Subject: Representation of Dr. P.K. Tandon, CMO (NFSG) against retention of grading in below benchmark ACR for the period 2006-07-reg.
-------
The undersigned is directed to refer to a letter dated 27.09.2012 from Dr. P.K. Tandon, CMO (NFSG) on the subject mentioned above and to say that the representation agains the below benchmark ACR are considered as per the Deptt. Of Personnel & Trg. O.M. No. 21011/1/2010-Estt.A dated 13.4.2010. The below benchmark ACR gradig in Competent Authority and since there were no grounds for upgradation of below benchmark grading of ACR for the period 2006-07 it was decided to retain the grading as "Good" after evaluating the ACR in a objective manner. The view of Reporting/ Reviewing Officers are to be taken into account only when they are in service and not after their retirement. Since the due process of action with regard to Deptt. Of Personnel & Trg. O.M. No. 21011/1/2010-Estt.A dated 13.4.2010 has been completed and therefore, there is no ground for re-consideration. No appeal lies under the aforesaid O.M. after the Competent Authority has given the decision on the representation.