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2013 DIGILAW 199 (ORI)

SANJAYA KU. MOHARANA v. COLLECTOR

2013-07-09

A.K.RATH, M.M.DAS

body2013
JUDGMENT : 1. Though the matter is listed for admission, but with the consent of the learned counsel for the parties, it is taken up for final disposal. The petitioner, who is a retired Doctor of the Central Government Health Services has approached this Court challenging, inter alia, the order dated 21.12.2011 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 404 of 2010 whereby and whereunder, the learned Tribunal dismissed the said O.A. and thereby confirmed the order dated 26.4.2010 passed by the Under Secretary to the Govt. of India, Ministry of Health and Family Welfare refusing to upgrade his ACRs for the period 2002-03 & 2003-04. 2. This case has a chequered history. Since the petitioner was not promoted to the post of Senior Administrative Grade (SAG), when his juniors were promoted, he filed O.A. before the Central Administrative Tribunal, Principal Bench, New Delhi, which was registered as O.A. No. 427/2008. The said O.A. was disposed of on 19.12.2008 directing the opp. parties to convey the petitioner his ACRs for the years 2002-03 and 2003-04 within a period of one month. Liberty was granted to the petitioner to file a representation against such ACRs. It was, inter alia, observed that if the petitioner succeeds in upgrading his aforesaid ACRs, he shall be considered for promotion to the post of Senior Administrative Grade by the review DPC. In M.A. 419/2009, as a last chance, the opp. parties were given 15 days' time to communicate to the petitioner the ACRs for the aforesaid period. But then, the opp. parties filed a writ application being W.P. (C) No. 9044 of 2009 before the High Court of Delhi. By order dated 19.05.2009, the said writ application was dismissed. On 24.08.2009, the ACRs of the petitioner for the years 2002-03 and 2003-04 were communicated to him. On 25.09.2009, he filed a representation. The said representation was rejected on 26.4.2010. While the matter stood thus, he retired from services on attaining the age of superannuation on 8.7.2010. Thereafter, he filed an O.A., being O.A. No. 404/2010 before the Central Administrative Tribunal, Cuttack Bench, Cuttack to quash the order dated 26.4.2010 passed by the Under Secretary to the Govt. of India, Ministry of Health and Family Welfare vide Annexure-7. Pursuant to issuance of notice, the opp. party no. 1 entered appearance and filed counter affidavit. Thereafter, he filed an O.A., being O.A. No. 404/2010 before the Central Administrative Tribunal, Cuttack Bench, Cuttack to quash the order dated 26.4.2010 passed by the Under Secretary to the Govt. of India, Ministry of Health and Family Welfare vide Annexure-7. Pursuant to issuance of notice, the opp. party no. 1 entered appearance and filed counter affidavit. In paragraph 1 of the said counter affidavit, it is stated that the opp. parties have received the representation dated 25.9.2009 of the petitioner for upgradation of his ACRs for the years 2002-03 and 2003-04 from "Good" to Outstanding/very good. The said representation along with the photocopies of his ACRs for the aforesaid periods were sent to the concerned reporting and reviewing officers for their comments. However, the representation of the petitioner could not be sent to the reviewing officer for the year 2002-03 as his whereabouts was not known after his retirement. For the period 2002-03, it is stated that since the whereabouts of the reviewing officer was not known after retirement, his comments could not become available. So far as the period for the year 2003-04 is concerned, it is stated by the reviewing officer in his comment that the ACRs of the petitioner was done as Good keeping in view the self appraisal of the officer and comments of the reporting officers and that he had also personally gone through the working of the officer and found that he was performing the routine duties and nothing extraordinary to his credit. Considering the representation of the petitioner in the light of the available records and comments of the reporting and reviewing officers, the ACRs of the petitioner was not upgraded. Accordingly, the decision of the competent authority was communicated to the petitioner on 26.4.2010. 3. Learned Tribunal dismissed the O.A. No. 404 of 2010 holding, inter alia, that the Tribunal lacks jurisdiction to interfere in the assessment/recording/grading given/made in the ACRs of an employee except when it is conclusively established that such remarks were recorded in violation of the statutory rules, tainted with malice or for that matter the authority who reported upon such remark/grading is not competent to do so. The Tribunal further observed that interfering in the grading/recording as a matter of routine by the Tribunal would tantamount to acting as an appellate authority of the authority competent to record the remarks. The Tribunal further observed that interfering in the grading/recording as a matter of routine by the Tribunal would tantamount to acting as an appellate authority of the authority competent to record the remarks. The Tribunal further held that except bald allegation of bias, no unimpeachable material had been produced by the petitioner in support of his allegation. Though a contention was raised by the petitioner that the bench mark very good was introduced vide Annexure-7 dated 8.2.2008, i.e., much after the DPC, the DPC ought not to have refrained from recommending the case of the petitioner for promotion due to lack of bench mark 'very good', but the same was negatived. 4. We have carefully and meticulously perused the pleadings of the parties. We have dispassionately heard the arguments advanced by the counsel for the respective parties. 5. In Abhijit Ghosh Dastidar Vs. Union of India (UOI) and Others the Hon'ble Apex Court in paragraph 8 of the said judgment held as follows:- 8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such Violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case, SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. 6. The specific case of the petitioner is that the ACRs for the period from 2002-03 and 2003-04 were not communicated to him pursuant to the direction issued by the Central Administrative Tribunal, Principal Bench, Delhi. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. 6. The specific case of the petitioner is that the ACRs for the period from 2002-03 and 2003-04 were not communicated to him pursuant to the direction issued by the Central Administrative Tribunal, Principal Bench, Delhi. Thus, when the case of the Juniors of the petitioner were considered for promotion to the post of Senior Administrative Grade from 2006, the petitioner was not aware of the said ACRs. We find that for the year 2002-03 the whereabouts of the reviewing officer was not known after his retirement, his comments could not be obtained. For the year, 2003-04, the reporting and reviewing officers commented that it is not possible on his part to give comment as the reporting officer in 2004 as the matter is too old and that he has no objection, if the petitioner is considered for the promotion to the post of Senior Administrative Grade. But then the reviewing officer observed that the ACRs of the petitioner was done as good keeping in view the self appraisal of the officer and comments of the reporting officers. He further stated that he had personally gone through the working of the officer and found that he was performing the routine duties and nothing extraordinary was found to his credit. 7. In paragraph 3 of the counter affidavit filed before the Central Administrative Tribunal, Cuttack Bench, Cuttack, it is stated that as per the office order dated 18.2.2008, all ACRs of 05 (five) years under consideration for promotion to the Joint Secretary level and the same should be "Very Good". The ACRs of the petitioner for the years 2002-03 and 2003-04 were assessed as "Good". Since the petitioner was considered for promotion to Senior Administrative Grade by the DPC (Departmental Promotion Committee) in the meeting held on 2nd, 3rd an 4th July, 2007, the DPC assessed the petitioner as "UNFIT". We fail to understand as to how the ACRs for the period 2002-03 were assessed as "Good" in the absence of the comments of the reporting and reviewing officers. 8. The submission of the petitioner that the ACRs of previous assessed year were outstanding is neither denied nor disputed. We fail to understand as to how the ACRs for the period 2002-03 were assessed as "Good" in the absence of the comments of the reporting and reviewing officers. 8. The submission of the petitioner that the ACRs of previous assessed year were outstanding is neither denied nor disputed. So far as the ACRs for the period 2003-04 is concerned, we find that the same has been done pursuant to the order of the learned Tribunal, where the commenting officer reported that it was not possible on his part to give comment for the year 2004 as the matter is too old. 9. Furthermore, the circular dated 18.2.2008 issued by the Govt. of India, Ministry of Personnel, Public Grievances and Pensions providing 'Benchmark' for assessment of performance 'very good' is applicable to all promotions at the level of Deputy Secretary and above was issued much after the meeting of DPC held on 2nd, 3rd and 4th, July, 2007. Thus the same has no retrospective effect. 10. Considering the present case on anvil of the decision cited supra, we are of the considered opinion that the ACRs of the petitioner for the period 2002-03 was done in a lackadaisical manner. We are of the view that the petitioner has been wrongly deprived of the promotion to the post of Senior Administrative Grade. Since the petitioner has retired in the meanwhile, we think it proper that he should be promoted to the post of Senior Administrative Grade on the date when his juniors were promoted, but he shall not entitle to any salary for that period. The notional promotion given to the petitioner shall be counted for fixing his pension. 11. As a sequel, the order dated 21.12.2011 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 404 of 2010 and the order dated 26.4.2010 passed by the Under Secretary to the Govt. of India, Ministry of Health and Family Welfare vide Annexure-7 are quashed. 12. The writ petition is allowed. There shall be no order as to cost. Urgent certified copy of this order be granted on proper application. Final Result : Allowed