Central Administrative Tribunal - Delhi
Dr. Prem Chandra Gupta vs Director General on 17 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 3067/2011
With
OA No. 964/2012
And
OA No. 965/2012
And
OA No.966/2012
Reserved on:11.07.2013
Pronounced on: 17:07.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
OA No. 3067/2011
Dr. Prem Chandra Gupta
House No.384, Sector-30A,
Chandigarh-160030. Applicant
(By Advocate: Shri Atul Kumar)
Versus
1. Director General
ESIC Corporation,
Panchdep Bhawan,
CIG Road,
New Delhi.
2. The Secretary,
Union Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg,
New Delhi. Respondents
(By Advocate: Shri Sanjeev Kumar)
OA No. 964/2012
Dr. Bhagat
R/o Flat No.7,
ESIC, Tagore Garden Extension,
New Delhi-27. Applicant
(By Advocate: Shri Atul Kumar)
Versus
1. Director General
ESIC Corporation,
Panchdep Bhawan,
CIG Road, New Delhi.
2. The Secretary,
Union Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg,
New Delhi. Respondents
(By Advocate: Shri Sourabh Chaddha and Shri Sanjeev
Sahay)
OA No. 965/2012
Dr. R.K. Tara
IMO Incharge,
Flat No.458, Pocket-2,
Sector-9, Dwarka,
New Delhi. Applicant
(By Advocate: Shri Atul Kumar)
Versus
1. Director General
ESIC Corporation,
Panchdep Bhawan,
CIG Road, New Delhi.
2. The Secretary,
Union Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg,
New Delhi. Respondents
(By Advocate: Shri Sourabh Chaddha and Shri Sanjeev
Sahay)
OA No. 966/2012
Dr. Satish Kumar Azad
S/o Shri Ganga Dass
Age 56 years
R/o SC-208 Shastri Nagar,
Ghaziabad-201002 (UP). Applicant
(By Advocate: Shri Atul Kumar)
Versus
1. Director General
ESIC Corporation,
Panchdep Bhawan,
CIG Road, New Delhi.
2. The Secretary,
Union Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg,
New Delhi. Respondents
(By Advocate: Shri Sourabh Chaddha and Shri Sanjeev
Sahay)
ORDER
Shri G. George Paracken:
Issue in all these Original Applications being the same, they are being decided by this common order. According to the Applicants, they have been denied promotion illegally taking into consideration of their Annual Confidential Reports (ACRs for short) which were below benchmark without communicating them and without giving them an opportunity for making representations for their up-gradation within a reasonable time and thus violating the principles of nature justice.
2. The only difference in these cases is that while all the Applicants except Dr. Prem Chandra Gupta in OA No. 3067/2011 were furnished with copies of the relevant ACRs which were below the benchmark at a belated stage after denying them the promotions and their representations were rejected, in the case of Dr. Gupta, he obtained his below the benchmark ACRs under the Right to Information Act, 2005 and made a representation but the same was also rejected.
3. All the Applicants are working as Doctors in the Employees State Insurance Corporation (ESIC for short). The Government, while accepting the recommendations of the 6th Pay Commission, resolved in para 12 of the Resolution No.1/1/2008-IC dated 29.08.2008 that the Dynamic Assured Career Progression Scheme (DACPS for short) for Doctors has to be extended up to Senior Administrative Grade (SAG for short) (Grade Pay of Rs.10000/- PB-4) to all Medical Doctors without linkage to vacancies whether they belong to the organized services or holding isolated posts. The said Scheme was duly adopted by the ESIC in toto. Thereafter, they prepared a list of eligible Medical Officers in the Non Functional Selection Grade (NFSG for short) working as Deputy Medical Commissioner/Medical Superintendent/Director (Medical) Pay Band-4 with Grade Pay of Rs.8700/- including the Applicants for promotion to SAG Grade in Pay Band-4 with Grade Pay of Rs.10,000/- on regular basis on 18.12.2008 and vide their letter dated 16.01.2009, they forwarded the same to Regional Head to verify the period(s) of extra ordinary leave, if any, availed by them otherwise than on medical grounds/study purpose during the period of service with ESIC so that their cases may be placed before the Departmental Promotion Committee (DPC for short) in its next meeting. Thereafter, the DPC held its meeting on 18.2.2009 and considered the last 5 ACRs of the eligible candidates including those of the Applicants. The DPC fixed the benchmark Very Good for the purpose of placing the otherwise eligible Medical Officer of NFSG in the SAG Scale Pay Band-4. The Respondents-ESIC, thereafter, issued Office Order No.72 of 2009 dated 20.02.2009 containing the list of such Medical Officers who have been granted the said scale. According to the Applicants, they were shocked to see that their names did not figure in the aforesaid list despite the fact that all of them fulfilled all the requisite qualifications. They have also stated that they had unblemished record throughout their service and no adverse entries have ever been communicated to them. However, through unofficial sources they came to know that some of the ACRs considered by the DPC were below the benchmark of Very Good. They have, therefore, made representations/applications under Right to Information Act, 2005 and obtained copies of those ACRs which were graded below the benchmark. Thereafter, they made number of representations to the Respondent-ESIC stating that the uncommunicated ACRs which were below benchmark should not have been taken into consideration for granting them the SAG grade. They have also pointed out that some of the similarly placed persons who were denied promotion to SAG grade on the same ground of uncommunicated below benchmark ACRs, have been subsequently granted promotion to the said scale. In this regard they have cited the cases of Dr. S.C. Jain, Dr. Nirmal Singh and Dr. Krishna Awatar Gupta. They have, therefore, requested the Respondents to consider their cases also sympathetically and grant them promotion to the SAG grade from the due dates.
4. However, the Respondents informed the Applicants that their requests for upgradation of gradings were not acceded to by the competent authority. They have also informed them that the review DPC cannot be convened ignoring their below benchmark ACRs. It is in the above facts and circumstances that the Applicants have approached this Tribunal through these Original Applications seeking a direction to the Respondents-ESIC to place them in the SAG scale in Pay Band-4 with Grade Pay of Rs.10,000/- from due dates, with all consequential benefits.
5. The learned counsel for the Applicants Shri Atul Kumar relied upon an order of the co-ordinate bench of this Tribunal in OA No.43/2010 Dr. (Mrs.) Nirmal Singh Vs. Union of India through Secretary, Ministry of Labour and Another decided on 10.08.2010. The aforesaid employee was also working in the ESIC. When she was denied promotion to the SAG Grade on the ground that she did not fulfil the criteria of required benchmark for promotion whereas her juniors were promoted, she approached this Tribunal by the aforesaid OA. While allowing the said OA, this Tribunal directed the Respondents to ignore the below benchmark ACRs which had not been communicated to her and to consider the ACRs of the earlier years in place of the below benchmark ACRs and to convene review DPC for granting SAG Grade. The relevant part of the said judgment reads as under:-
11. We now advert to the settled position in law on the issues coming up before us for our consideration and determination.
12. With regard to the below benchmark and downgrading of ACRs, it is now legally well settled principle in the service jurisprudence that any grading in the Annual Confidential Report of an employee of the Government, (a) which is below the benchmark prescribed for promotion to a higher grade in the employees service; and (b) in case the Reviewing/Accepting Authority has down graded the grading given by the Reporting Authority, such ACR would be considered to be adverse remark. On the other hand, as per the extant practice if the Reviewing/Accepting Authority has upgraded the grading of the ACR which meets the benchmark prescribed for promotion the grading assigned by the Reviewing/Accepting Authority is considered by the DPC. In the context of below benchmark grading, the Honble Apex Court in U. P. Jal Nigam Versus Prabhat Chandra Jain reported in JT 1996 (1) SC 641 (para 3) laid the ratio that any grading which has adverse civil consequences for an employee should be considered as adverse remark/grading. If the grading given to an officer is Good and the benchmark is Very Good (this is the case in the present OA) and is not considered Fit for promotion on the basis of such grading that being below the prescribed benchmark should be considered as adverse grading. We take the extract of the Para 3 of the judgment of the Honble Supreme Court in U. P. Jal Nigam case (supra), which reads as follows :-
3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. 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. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court (emphasis supplied)
13. Though the above decision of the Apex Court remained confined to the employees of the U.P. Jal Nigam, the Honble Supreme Court in Dev Dutt Versus Union of India and Others [2008 (8) SCC 725] has taken up similar issues and in an elaborate judgment in a comprehensive manner decided that irrespective of the grading the employees should be given the ACRs in order to represent if they feel like against any of the entries to ensure fairness and transparency in administration. In Dev Dutt case (supra), the Honourable Supreme Court lays the law that non communication of below benchmark ACR is not only denial of opportunity to the employee but also illegal. We take the extract of paragraphs 10, 11 and 45 of the judgment which read as follows "10. In the present case the bench-mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appel-lant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable."
45. 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 fo 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.
14. In Dev Dutt case (supra) the Honourable Apex Court developing the new principles of natural justice has held that fairness and transparency in public administration requires that all en-tries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant must be communicated to him within a reasonable period so that he can make a representation for its up gradation. This in the opinion of the Honourable Apex Court is the correct legal position even though there may be no Rule / Government Orders requiring communica-tion of the entry, or even if there is a Rule / Government Order prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution requires such communication and Article 14 overrides all rules or gov-ernment orders. The same view was reiterated by the Honble Supreme Court in the case of Abhijit Ghosh Dastidar versus Union of India & Others decided on 22.10.2008 (Civil Appeal No.6227/2008).
15. Let us examine the legal position with regard to downgraded grading ACRs. A Larger Bench of this Tribunal considered the issue of downgrading of the grades by the Reviewing Officer in A. K. Aneja versus Union of India & Ors. decided on 7.05.2008 in OA NO.24/2007. In the said case, the Tribunal held that although the Reporting Officer had recorded Very Good grading, yet the officer reviewing the ACR had downgraded it to Good, which was below the bench mark of Very Good prescribed for promotion. The Tribunal took a view that such grading in the ACR was decidedly an adverse remark/grading and should be communicated to the Applicant, in that case, his representation be obtained and considered. The present case in this OA exposes that one of the ACRs were downgraded and as such the dicta in A. K. Aneja case (supra), would be applicable. We take the extract of Para 24 of the judgment which reads as follows :-
24. We have to presume that adopting a routine procedure; the downgrading of the entry for the year 2002-2003 brought about in respect of the applicant might have been for reasons, which have been considered as germane, adequate and relevant by the reporting authority. We can give them that much credit. In other words, he/she was of a definite opinion that markedly there occurred deficiency on the side of the applicant, either in the matter of work or conduct. When this surfaced, an assessment necessarily was to be incorporated in the service records as a truthful entry. On a corollary, if he had been maintaining his efficiency, there would not have been necessity for a downgrading. He was graded, therefore, as `Good. Although the term `Good cannot be considered as having a negative aura, the circumstances that it had replaced `Very Good amounted to downgrading, it was presumably for lapses detected, and necessarily it was, therefore, to be considered as adverse. The assessment Very Good, Good and Average are expressions, given in a nutshell, and it precedes opinions formed after a meticulous consideration. If the officer thought it fit not to give `Very Good and `Good alone, the opinion might have been formed only by a fall in the efficiency of the officer, of which he might not have been aware even. If the opinions formed were adverse, then alone, the final entry would have been the one, which in a syllable or two reflected the fall. Therefore, presence of adverse entries necessarily has to be inferred as available in the records. If that be so, the person concerned was not to be kept in dark about the assessment, we feel.
16. Shri A. K. Behera, the Counsel for the Applicant relied on the judgment of this Tribunal in Ram Pyare Versus Union of India and Otherss (OA No.1015/2009 decided on 25.02.2010) where one of us [Dr. Ramesh Chandar Panda, Member (A)] authored the orders, reliance was placed on the orders in the case of Shri Krishna Mohan Dixit Versus Union of India and Others in OA No.586/2009 decided on 25.8.2009 was relied on. We find that the issues involved in the present OA are similar to the said judgment Ram Pyare case (supra). In Shri Krishna Mohan Dixit (supra) the non-communicated below benchmark and downgraded ACRs were directed to be ignored and to consider the ACRs of preceding years. In Shri Krishna Mohan Dixit case (supra), reliance was placed on the orders passed by this Tribunal in Shri Sanjay Kumar Versus Union of India and others, decided on 5.08.2009, in which, after considering the judicial precedents of Abhijit Ghosh Dastidar (supra), this Tribunal took the view that the ACR for the year in which a grading of `Good was recorded in respect of the applicant therein, should not be considered. In Shri Sanjay Kumar case (supra), the Tribunal has also considered the OM dated 12.10.1990 of the DOP&T which prescribes that the DPC should consider ACRs for equal number of years in respect of all officers considered for promotion. In Shri Krishna Mohan Dixit case (supra), the Tribunal had directed that the DPC should go back to preceding years and consider the ACR of the Applicant, which does not contain any un-communicated below benchmark and downgraded ACRs.
17. The well settled legal position as spelt out by us was also taken up by this Tribunal in OA No.1142/2009 in the case of Ranjana Kale Vs. Chief Economic Adviser and another, in which placing reliance on the judgment as cited by us within namely Ashok Kumar Aneja (supra), Dev Dutt (supra), this Tribunal directed vide its order dated 10.09.2009 that the Respondents would communicate to the Applicant all such ACRs which may be below benchmark and considered by the DPC for promotion to Senior Administrative Grade and the Applicant would have a right to make representation against such reports which should be disposed of by the Respondents. If such reports are upgraded commensurate to the benchmark, review DPC should be convened within a month therefrom, wherein the Applicant would be considered for promotion to the post of Senior Administrative Grade. In Ranjana Kale case (supra) a Writ was filed before the Honble High Court of Delhi which was considered in the WP(C) No.13488/2009 and decided on 1.7.2010 in which the below benchmark issue decided in above terms by the Tribunal became the subject of adjudication. After hearing the parties, the Honble High Court of Delhi passed the following order :-
3. The case of the petitioner is fully covered by the judgment delivered in the case of V. K. Singhal (supra) as also in the case of Abhijit Ghosh Dastidar Vs. UOI & Ors. Delivered by the Honble Supreme Court in Civil Appeal No.6227/2008.
4. In these circumstances, we find it appropriate to modify the order of the Tribunal dated 10.09.2009 to the extent that instead of asking the petitioner to submit a representation and then pass orders about his ACRs for the year 2004-05 & 2005-06, the respondents will consider the issue of promotion of petitioner by convening a review DPC by taking into consideration the ACRs for the year 2000-01, 2001-02, 2002-03, 2003-04 & 2006-07 by ignoring ACRs of the two years namely 2004-05 & 2005-06.
18. Similar is the case in the present OA, where in the earlier order the Tribunal directed Respondents to communicate the below benchmark ACRs for soliciting representation from the Applicant. Consequently, the Respondents sent three years ACR 2000-2001, 2001-2002 and 2002-2003, to the Applicant on which the representations were received by the Respondents and the competent authority rejected the same and allowed the below benchmark gradings continuing for those 3 year ACRs.
19. The Honble High Courts direction is fully applicable in the present case where the Respondents have rejected the below benchmark ACR which was not earlier communicated and when communicated later on and the representations received, without the comments and view of the Reporting and Reviewing Officers, the Respondents maintained same below benchmark grading. We, therefore, are of the considered opinion that the ratio already laid in various judgments as cited within and the law reiterated by the Honble High Court of Delhi in its latest judgment of 1.7.2010 in the case of Ranjana Kale (supra) we have to direct the Respondents in the current OA to (a) ignore the ACRs of the Applicant for the year 2001-02 and 2002-03 and (b) to maintain the Very Good grading assigned in the ACR for the year 2000-01 (where the Reviewing Officer by downgrading has not given any reason).
20. In normal practice, when adverse remark or below benchmark grading or downgraded ACR is communicated to the officer who has received such remarks in his ACR, he submits the representation against such remarks to the Authority immediately superior to the Countersigning Authority. In 3 tier Confidential Report Assessment System, there are Reporting, Reviewing and Accepting Authorities. In a 2 tier assessment system there are Reporting and Reviewing Authorities, and no Accepting Authority. Thus, the countersigning Authority in such a system will be the Accepting Authority or Reviewing Authority. Therefore, the representation would lie to an authority who is superior to the countersigning authority (Accepting Authority or Reviewing Authority as the case may be). In case of the adverse remarks or below benchmark or downgraded grading in the ACR, where either the Reviewing or the Accepting Authority or both have not given their assessment on the officer, but only Reporting Authoritys grading exist in such an event, the superior to the Authority who has reported on the officer would be competent to receive the representation against such remarks. In Dev Dutt case (supra) Honble Supreme Court has observed that below benchmark ACRs have all the impact and civil consequences as that of the adverse remarks in the ACRs and, therefore, the concerned affected officer is entitled to not only receive the ACRs but has a right to represent on the same for consideration of the Competent Authority. This Tribunal in a Larger Bench in Ashok Kumar Aneja case (supra) has also decided that even the downgrading of the ACRs would have same purport and impact as that of adverse remarks in the ACRs of the officer. In these two situations (i.e. below benchmark or downgraded ACRs), the impact will be that of the adverse remarks and, therefore, the procedure prescribed by the Government for the adverse remarks must apply to such situation. It is appropriate for us to mention that the normal practice is that when a representation is received on such adverse remarks or below benchmark or downgraded ACRs, the same has to be transmitted to the officers who have reported/reviewed/accepted the performance assessment of the officer, offer their comments and observations if any on the said representation and thereafter, the authority superior to the countersigning authority would consider all aspects (the relevant ACR, representation of the officer, and the comments of the authorities who have reported , reviewed or accepted the ACR assessments) and take a final decision. In most of the cases, the Authority superior to the countersigning authority may not have an opportunity to know the performance of the officer who would submit his representation. Therefore, he would normally wait to receive comments on the representation, take into account such comments and observations received from the Reporting, Reviewing and Accepting Authorities and finally pass his well considered order. If the Reporting, Reviewing and Accepting Authorities or any of them have retired or are not available for any other reason to offer their comments and observations on the representation, it would be futile exercise to submit the representation to authority superior to the countersigning authority who may not have direct knowledge on the performance of the officer. The question is how and in what manner he would offer his decision in the matters of the officers representation. In this background only, the Tribunal in case of Shri Krishna Mohan Dixit Versus Union of India and Others (OA No.586/2009 decided on 25.8.2009), it was decided that such ACRs should be ignored and the previous years ACRs should be taken into account for consideration for promotion of the concerned officer. The same view was taken by the Honble Apex Court in the case of Abhijit Ghosh Dastidar case (supra) and by the Honble High Court of Delhi in Ranjana Kale case (supra).
21. Taking into account the facts and circumstances of the case, and the settled legal position on the issues dwelt within, we come to the considered conclusion that the Respondents have erred in the case of the Applicant insofar as her promotion to the SAG grade is concerned. Applicant having not been communicated initially with the below benchmark and downgraded ACRs, has not been given an opportunity to represent against the same and thereafter communicating those 3 years ACRs when Reporting and Reviewing Officers have retired, the action of the Respondent has prejudiced her and put her to the disadvantage over his juniors who were declared Fit. The Applicant succeeds insofar as the issues flagged by us in Paragraph 6 within.
22. Therefore, taking into account our above analysis, observations and directions; the settled legal position and relying on the judgment we direct the Respondents to adopt the following procedure in the present case:-
The Respondents are directed to ignore the below benchmark ACRs for the year 2001-02 and 2002-03;
to ignore the downgraded gradings given by the Reviewing Officer for the year 2000-01 and consider only the Very Good grading given by the Reporting Officer;
to consider ACR of earlier years in place of the below benchmark ACRs;
to convene Review DPC within a period of two months to find out the suitability and fitness of the Applicant to the SAG for the vacancy/ Panel year 2004-05 and subsequent years;
in the event, the Applicant gets selected and is found fit for promotion to the SAG level, she would be eligible to get her promotion w.e.f. the date on which her immediate juniors were promoted; and she would be entitled to all consequential benefits in respect of her seniority, pay and allowances and revised retiral dues, which shall be paid within 2 months after the review DPC meeting date.
23. In the result, in terms of the above directions, the Original Application having merits is allowed, leaving the parties to bear their own costs.
6. The learned counsel for the Applicant has also relied upon another judgment of the co-ordinate bench of this Tribunal in OA No.1617/2012 Dr. Shashi Aggarwal Vs. Union of India through Secretary, Ministry of Labour and ESIC decided on 20.03.2013. The said applicant was also an employee of the ESIC seeking placement in the SAG grade. She was also denied the SAG grade in view of the findings of the DPC that she had ACRs below the benchmark. Therefore, vide the aforesaid OA, she approached this Tribunal for granting SAG Grade. This Tribunal allowed the said OA with the directions to the Respondents to ignore those uncommunicated below benchmark ACRs and consider her previous ACRs as held by the Honble High Court of Delhi in the case of U.O.I. and Another Vs. V.S. Arora and Others. The relevant part of the said judgment reads as under:-
5. We have heard the learned counsel for the parties. When an order is passed by the higher authorities, we are bound to follow it. Therefore, the aforesaid order passed by the High Court and affirmed by the Apex Court, are to be followed in this case.
6. In view of the above position, we direct the respondents to ignore the ACR of the applicant for the year 2002-2003 as the adverse remarks therein were not communicated to her and consider her previous years ACRs as stated in the High Courts order in V.S. Arora and Others and connected cases (supra). The respondents, shall, therefore, convene a Review DPC and consider the case of the applicant within a period of two months from the date of receipt of a copy of this order. In case the Review DPC recommends the name of the applicant in view of the fresh assessment, she shall be given promotion and all the benefits as have been enjoyed by her juniors except back wages.
7. With the above directions, this OA is allowed. There shall be no order as to costs.
7. The Respondents in their reply have submitted that the settled position of law is that Applicants have no right for promotion but have only right for consideration for promotion. Since they have been duly considered by the DPC for promotion along with other similarly situated persons and found unfit for grant of SAG grade as they did not meet the required criteria of benchmark adopted by the DPC, they have no case to agitate. On merits, they have stated that though DACP Scheme for upgradation/promotion up to the grade of SAG is based on the length of service and is not linked with vacancies, yet it is the work and performance of the officers that matters and qualify them for future advancement for which ACRs are the criteria which have been relied upon. Again, according to them, the purpose of DACP is to eliminate stagnation and frustration but simultaneously promotion is considered as a reward for meritorious work in deserving cases which can be attained by meeting the defined standard for future advancement but the Applicants in these Original Applications have not been able to attain those standards and as such, they were not promoted. They have also submitted that the cases of Dr. S.C. Jain, Dr. Nirmal Singh and Dr. Krishna Awatar Gupta relied upon by the Applicants are totally different from the present cases as they had challenged their downgraded ACRs which were subsequently upgraded by the competent authority.
8. We have heard the learned counsel for the Applicants Shri Autul Kumar and the learned counsel for the Respondents Shri Sanjeev Kumar in OA No.3067/2011 and Shri Sourabh Chadha in OA Nos. 964/2012, 965/2012 and 966/2012. The issue raised in these OAs has already been settled by number of pronouncements by this Tribunal, Honble High Court of Delhi and the Apex Court. Without going into all the cases decided by different courts, it is suffice to consider the judgment of High Court of Delhi in Writ Petition (C) 5042/2002 and connected petitions U.O.I & Another Vs. V.S. Arora & Others etc., relied upon by this Tribunal in OA No. 1617/2012 (supra). The relevant part of the said judgment is as under:-
24.Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC shouldconsider the CRs of the years preceding the period in question and if in any case even these are not vailable, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
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25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above.
9. In the above facts and circumstances of the case, there cannot be any iota of doubt in the mind of anyone that the uncommunicated ACRs having adverse remarks/below benchmark gradings cannot be relied upon by a DPC. All ACRs with adverse remarks/below benchmark gradings are required to be communicated within a reasonable time and the employee concerned is to be given the opportunity to make representation to expunge those adverse remarks/upgrade below benchmark gradings. In all the present cases, the DPC considered the below benchmark ACRs of the Applicants and it was on that basis they were denied SAG Grade.
10. We, therefore, allow these OAs and quash and set aside the respective orders of the Respondents rejecting the requests of the Applicants for holding Review to consider their case ignoring the below benchmark ACRs. We further direct the Respondent-ESIC to ensure that a review DPC in the case of the Applicants shall be convened as early as possible but in any case within a period of 2 months from the date of receipt of a copy of this order and consider their cases ignoring their below benchmark ACRs but following the procedure prescribed by the Honble High Court of Delhi in the case of V.S. Arora and Others (supra). If the Review DPC find them suitable, they shall be placed in SAG Grade in Pay Band-4 with the Grade Pay of Rs.10,000/- with effect from the due dates with all consequential benefits.
11. There shall be no order as to costs.
Let a copy of this order be placed in all the case files.
(MR SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh