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2004 DIGILAW 42 (GUJ)

UNION OF INDIA v. AJITKUMAR SINGH

2004-01-30

BHAWANI SINGH, H.K.RATHOD

body2004
H. K. RATHOD, J. ( 1 ) HEARD learned advocate Mrs. Mauna M. Bhatt appearing on behalf of the petitioner and the Party-in-person Mr. Ajitkumar Singh appearing as the respondent. Whether reporters of Local Papers may be allowed to see the Judgment? ( 2 ) PRESENT petition is directed by the Union of India challenging the order passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in O. A. No. 459 / 2002 dated 30th September, 2003 whereby, the tribunal has quashed the orders of competent authority and further directed the petitioner to promote the respondent from 1st December, 1995 from the date his juniors were promoted and further directed to complete the exercise within six weeks from the date of receipt of the order. Thereafter, the petitioner had moved one Misc. Application No. 700 / 2003 for extension of time which was also rejected by the Tribunal on 1st December, 2003. ( 3 ) THE brief facts giving rise to the present petition are as under : the respondent was recruited on the basis of combined Civil Service Examination 1990 on 1st January, 1992. After undergoing the training period, the respondent was posted as an Assistant Commissioner of Income Tax at Allahabad on 13th April, 1993. Thereafter, he was transferred as Assistant Commissioner of Income Tax, Varanasi on 21st July, 1993. The Deputy Commissioner of Income Tax, Varanasi range and Commissioner of Income Tax are the reporting and reviewing authorities respectively. The Deputy Commissioner of Income Tax of Varanasi Range and Commissioner of Income Tax recorded certain adverse remarks in the Annual Confidential Report of the respondent and those remarks were communicated to the respondent on 14th July, 1995. Against which, a representation was made by the respondent to the Chief Commissioner of Income Tax on account of malafides on the part of the Deputy Commissioner of Income Tax, Varanasi range and the Commissioner of Income Tax as the respondent had refused to accommodate them by passing certain favourable orders in certain specific cases. The said representation remained pending for more than two years and thereafter, he made request on 4th November, 1997 to expedite the decision on the representation. By letter dated 13th November, 1997 it was informed to the respondent by the authority that his representation has been rejected and authority had declined to interfere with the adverse remarks recorded by the concerned authority. By letter dated 13th November, 1997 it was informed to the respondent by the authority that his representation has been rejected and authority had declined to interfere with the adverse remarks recorded by the concerned authority. Therefore, the respondent had filed application being O. A. No. 755 / 1997 before the Central Administrative Tribunal challenging the order of adverse remarks. The Central Administrative Tribunal vide order dated 2nd December, 1998 held that the order could not be sustained and the same was quashed and it was directed to the petitioner to re-examine the matter again with application of mind and come to a proper finding in respect of the adverse remarks and to communicate the decision to the respondent by a speaking order. Thereafter, the respondent had received a message from the office of the authority on 10th March, 1999 requesting the respondent to say in support of his representation. Thereafter, the competent authority has passed the order on 12th March, 1999 holding that out of 14 remarks, 9 were expunged, three were retained and one was directed not to be treated as adverse remarks. The said order was challenged by the respondent before the Central Administrative Tribunal by filing O. A. No. 369 / 1999 but the Tribunal has dismissed O. A. vide order dated 2nd February, 2000 sustaining the order of the competent authority dated 12th March, 1999. 2. 1 it is relevant to note that when the tribunal has passed an order in O. A. No. 755 / 1997 on 2nd December, 1998, the tribunal has quashed the order of Chief Commissioner, Ahmedabad and directed him to consider the matter afresh and to communicate the decision by speaking order. The tribunal further directed that if there was substantial changes in the Annual Confidential Report, the Department was also to take steps for convening the meeting of review DPC for considering his case of promotion to the senior scale from the date on which his juniors were promoted. 2. 2 it is also necessary to note that the Chief Commissioner, thereafter vide detailed order dated 12th March, 1999 expunged remarks in respect of nine out of fourteen items and one remark was treated as not adverse. The Chief Commissioner also held that it will not therefore be proper to term his overall performance inadequate and the said remarks are therefore also expunged. The Chief Commissioner also held that it will not therefore be proper to term his overall performance inadequate and the said remarks are therefore also expunged. One remark had been dropped because the order were held to have been passed within jurisdiction and not without jurisdiction as mentioned in the Annual Confidential Report. The respondent being aggrieved by non expungement of remaining remarks, he filed O. A. No. 369 / 1999 wherein, the tribunal held that no infirmity could be found with the order of the Chief Commissioner, the respondent had filed a writ petition being Special Civil Application before this Court in S. C. A. No. 2428 / 2000 and this Court has also dismissed the said Special Civil Application on 29th July, 2002. 2. 3 the petitioner, thereafter, convened the meeting of review DPC in forms of the order passed in O. A. No. 759 / 1999 and promoted the respondent to the Senior Scale with effect from 1st April, 1999. Then, the respondent filed O. A. No. 875 / 1999 challenging the said decision. The tribunal by order dated 5th October, 2000 quashed the recommendations of the review DPC and order of the competent authority and remanded the matter back for fresh consideration. The review DPC which met by circulation has considered the matter and has found no reason to interfere with the earlier decision and the competent authority has also agreed with it. Thereafter, again the respondent has challenged the said order in O. A. No. 459 / 2002 which is a subject matter of the present petition. ( 4 ) LEARNED advocate Mrs. Mauna Bhatt has raised contention that once the order passed by the Tribunal in O. A. 369 / 1999 and the Tribunal has dismissed the O. A. on 2nd February, 2000, which order has been challenged before this Court and this Court has also dismissed the petition in Special Civil Application No. 2428 / 2000, and therefore, the respondent is not entitled to challenge again the same cause of action before the Tribunal. She also submitted that the Central Administrative Tribunal is not an appellate authority and cannot have any jurisdiction to interfere with such orders passed by the petitioner. She also emphasised that afterall, the respondent is entitled to promotion or not, for which, the DPC is final authority and against which, no further interference is called for on judicial side. She also submitted that the Central Administrative Tribunal is not an appellate authority and cannot have any jurisdiction to interfere with such orders passed by the petitioner. She also emphasised that afterall, the respondent is entitled to promotion or not, for which, the DPC is final authority and against which, no further interference is called for on judicial side. She also submitted that this is not punishment imposed by the petitioner and therefore, interference by the Tribunal is also without jurisdiction. Therefore, according to her submission, the tribunal has committed gross error in relying on the decision of the Apex Court in case of B. C. Chaturvedi vs. Union of India, AIR 1996 SC 484 . Except the contentions and submissions noted above, no other and further submission made by the learned advocate Mrs. Mauna Bhatt before us. ( 5 ) THE respondent who is party-in-person is personally present before us at the time when the hearing is taken place before this Court and he, however, supported the order passed by the tribunal. ( 6 ) WE have carefully considered submissions made by the learned advocate Mrs. Mauna Bhatt on behalf of the petitioner. We have perused the order passed by the Central Administrative Tribunal. It requires to be appreciated that this is forth round of litigation on the very subject matter based on the different orders passed by the petitioner. The question is that on 12th march, 1999, the Chief Commissioner had passed an order expunging the remarks in respect of nine out of fourteen and one remark was treated as not adverse. The Chief Commissioner also held that it will not therefore be proper to term his overall performance inadequate and the said remarks are also therefore expunged. One remark had been dropped because of the orders were held to have been passed within jurisdiction and not without jurisdiction as mentioned in the ACR. Therefore, considering the said order of the Chief Commissioner, the net effect would be that all the adverse confidential report has to be read in entirely and it was not open to the petitioner to consider unexpunged remarks in isolation and deny promotion to the respondent. Therefore, considering the said order of the Chief Commissioner, the net effect would be that all the adverse confidential report has to be read in entirely and it was not open to the petitioner to consider unexpunged remarks in isolation and deny promotion to the respondent. The tribunal has considered the decision of Principal Bench of the Administrative Tribunal in S. N. Sharma v. Union of India reported in 1988 [7] ATC 372, wherein the Government instructions regarding evaluation of the ACRs by the DPC has been interpreted. The tribunal has also considered one more decision in case of S. D. Sachdeva v. D. G. BESIC reported in 1988 [8] ATC 93, wherein the Principal Bench has observed in para-11 that normal practice is that overall grading is based on grading for three years out of five years. This is the practice followed by the DPCs with which the Union Public Service Commission is associated. The tribunal has also considered Swamys compilation on seniority and promotion as well as instructions issued on functioning of the DPC by the Department of Personnel and Training. The principle which has been decided by the Principal Bench of the Administrative Tribunal in case of S. D. Sachdeva as referred to above, since relevant observations, quoted as under :"the DPC must have considered the confidential reports of the last five years, as is the normal practice. In the instant case, as the original DPC met in December, 1982, the reports to be considered by it were for the years 1977 to 1981. According to the normal practice, the overall grading of an officer would be based on the same grading for three out of five years. For instance, if an officer has been graded as "very Good" in three out of five reports, his overall grading will be "very Good". This is the practice followed by the DPCs with which the Union Public Service Commission is associated. " ( 7 ) THEREFORE, the whole purpose is while evaluating ACRs that in case if three ACRs are "very good" out of five reports, then, his overall grading will be "very good". This is the practice being followed by DPC with which UPSC is associated. Similar is the situation in the facts of the case at hands. " ( 7 ) THEREFORE, the whole purpose is while evaluating ACRs that in case if three ACRs are "very good" out of five reports, then, his overall grading will be "very good". This is the practice being followed by DPC with which UPSC is associated. Similar is the situation in the facts of the case at hands. The order passed by the Chief Commissioner on 12th March, 1999 expunging nine remarks out of fourteen and one remark was treated as not adverse. Not only that but the Chief Commissioner has held that it will not therefore be proper to term his overall performance inadequate and the said remarks are therefore also expunged. One remark had been dropped because the orders held to have been passed within jurisdiction and not without jurisdiction as mentioned in ACR. Looking to the orders passed by the Chief Commissioner on 12th March, 1999, in our opinion, nothing remains adverse against the respondent which disqualify or declare unfit the respondent for being considered for promotion on the date on which his juniors were promoted. Therefore, the view, has rightly been taken by the tribunal. ( 8 ) IT also requires to be appreciated that the tribunal has considered minutes of the DPC wherein, one Member has recorded that 1994-95 report continues to be adverse. He also taken note of the decision of three earlier DPC which held in February and December, 1996 and July, 1998. The other Member has taken note of unexpunged remark in personal treats and general observation that performance of the Officer is considered as inadequate. Bare perusal of the minutes of DPC, seems to be contrary to the order passed by the Chief Commissioner dated 12th March, 1999, wherein such adverse remarks were already expunged. The general observations from ACRs, then, overall ACR could have been treated as an adverse to the respondent. ( 9 ) IT is contention raised by the learned advocate Mrs. Mauna Bhatt that the tribunal has no jurisdiction to act an appellate authority and to have interference with such orders passed by the petitioner and this being not a punishment. The general observations from ACRs, then, overall ACR could have been treated as an adverse to the respondent. ( 9 ) IT is contention raised by the learned advocate Mrs. Mauna Bhatt that the tribunal has no jurisdiction to act an appellate authority and to have interference with such orders passed by the petitioner and this being not a punishment. The respondent in light of the order passed by the Chief Commissioner on 12th March, 1999 entitled to promotion on the basis of the service rules and guidelines and the DPC has applied wrong criteria and observations are contrary to the order of the Chief Commissioner dated 12th March, 1999. If an employee having legal right to be considered for promotion and according to the service rules and guidelines, he entitled to promotion, but the same has been denied without any legal justification by the petitioner, then, certainly it amounts to unjust and unfair action on the part of the petitioner which amounts to punishment to the employee, who is, otherwise, entitled to promotion as per the service rules and guidelines. In such circumstances, when the tribunal has considered the matter after detailed examination including the minutes of the DPC and the order of Chief Commissioner dated 12th March, 1999, according to our considered opinion, the tribunal has rightly considered the matter and relied upon the decisions of the Apex Court in case of B. C. Chaturvedi that if any action of the petitioner has shocked the consciece of the Court being unjust and arbitrary and contrary to the Rules, then, certainly while exercising the powers of judicial review, the tribunal can interfere with such case to shorten the litigation and to pass appropriate orders according to the service rules and guidelines. For that, the tribunal has not committed any error. ( 10 ) THE concept of punishment has been misunderstood by the learned advocate Mrs. Mauna Bhatt. It is not always linked with the misconduct. Some times, a decision or action of the Department which is contrary to the Service Rules, arbitrary and unjust as well as without justification, then such decision or action normally considered to be punishment imposed by the Department on the concerned employee. For example, in case of transfer, some time, power of transfer is exercised with a view to punish the employee. For example, in case of transfer, some time, power of transfer is exercised with a view to punish the employee. Similarly, suspension and in this case, denial of legitimate legal right of respondent for promotion on the date on which, the juniors were promoted. Therefore, not to grant a benefit to the concerned employee as per the Service Rules without any justification, can be said to be punishment imposed by the Department without any legal base. Therefore, in that sense, if such action or decision even shocked the conscience of the Court or the tribunal, then, certainly the tribunal / Court can interfere with such decision or the order either by modification of such decision or order or to remand the matter back to the Department for reconsideration. Looking to the facts of the case at hands, once the Chief Commissioner expunged nine adverse remarks, one was dropped and overall performance is not considered to be inadequate, then, nothing adverse remains against the respondent. In such situation, the DPC ought to have considered the case of the respondent in light of the order passed by the Chief Commissioner on 12th March, 1999. But not to consider the case of the respondent in proper perspective and promotion has been given with effect from 1st April, 1999 and denial of promotion with retrospective effect to the respondent when his juniors were promoted without any legal base, amounts to punishment imposed by the Department, which naturally shocked the conscience of the Tribunal. That has been rightly dealt with and corrected by the Tribunal while passing the order which is impugned in the present petition. ( 11 ) THE Department has violated the guidelines of evaluating the ACRs which has rightly been appreciated by the Tribunal. Looking to the order of the Chief Commissioner dated 12th March, 1999, nothing adverse remains against the respondent. Therefore, we fail to understand as to why the retrospective effect should not be given for promotion to the respondent. As such, no explanation, nor any reply has come forward from the ends of the petitioner and learned advocate Mrs. Mauna Bhatt has failed to point out so. The method of evaluation of ACRs is well known to DPC. If out of fourteen, nine adverse remarks have been expunged, one was dropped and remaining treated as "inadequate", then the natural result would be that nothing adverse remains against the respondent. Mauna Bhatt has failed to point out so. The method of evaluation of ACRs is well known to DPC. If out of fourteen, nine adverse remarks have been expunged, one was dropped and remaining treated as "inadequate", then the natural result would be that nothing adverse remains against the respondent. Therefore, in given circumstances, obviously, no ground for the petitioner for denying promotion from the date the juniors were given promotion. Therefore, according to our opinion, the tribunal has rightly passed the effective order. ( 12 ) THE contention that this Court has already decided the writ petition viz. Special Civil Application and dismissed it but thereafter, this being fresh cause of action on the basis of the order, meeting of the review DPC in forms of the order passed in the O. A. No. 759 / 1999 and promoted the respondent to the senior scale with effect from 1st April, 1999. Therefore, earlier decision of this Court would not come in the way of the respondent for challenging the order of review DPC granting promotion to the respondent in the senior scale with effect from 1st April, 1999. Therefore, this being separate and independent cause, for which, the respondent is entitled to challenge the same before the Central Administrative Tribunal. When apparently the decision of the petitioner is contrary to the order passed by the Chief Commissioner dated 12th March, 1999, then naturally, interference by the Tribunal granting full relief in favour of the respondent is a proper relief, which has been rightly granted by the tribunal. As such, the tribunal has not committed any error while passing the order impugned in this petition while exercising the powers of judicial review. If the Court feels that there is injustice caused by the employer to the employee, in that case, it is the duty of the Court to consider and examine the same and if it found that there is real injustice caused by the petitioner to the respondent, then same requires to be interfered with and proper relief ought to be granted in favour of the respondent, and that has been rightly done by the tribunal with full application of mind and that too with cogent reason in support. Therefore, according our opinion, the tribunal has rightly dealt with the matter in proper perspective manner and for that, no error has been committed and it was within the jurisdiction of the tribunal to pass such orders and hence, no interference of this Court is called for while exercising the powers under Articles 226 and 227 of the Constitution of India. ( 13 ) THE Union of India has challenged the order of Central Administrative Tribunal before us. We cannot act as an appellate authority. We cannot reappreciate the same evidence again which was already appreciated by the tribunal. Even in case two views are possible, no interference can be made and nor even permissible. The scope of judicial review has been recently been examined by the Apex Court in case of SYED T. A. NAQSHBANDI AND OTHERS V. STATE OF JAMMU and KASHMIR AND OTHERS reported in [2003] 9 SCC 592. The relevant observations made by the Apex Court in Head Note [h] is referred to under :"judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the material by the Courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions. Grievances must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the court in exercise of its powers of judicial review. Unless the exercise of power is shown to violate any other provision of the Constitution of India or any of the existing statutory rules, the same cannot be challenged by making it a justiciable issue before Courts. "in view of our discussion in aforesaid foregoing paragraphs, there is no substance in the present petition and the same deserves to be rejected. In the result, present petition fails and the same is rejected accordingly. No order as to costs. .