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2015 DIGILAW 114 (JK)

Ramesh Tiwari v. Union of India

2015-03-24

B.S.WALIA, MOHD.YAQOOB MIR

body2015
JUDGMENT : B.S. WALIA, J. 1. Prayer in this writ petition is for setting aside the judgment of the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the Tribunal) dated 29.04.2010 in OA No. 757/JK/2008 and for granting the relief prayed for in the OA as also for quashing the ACRs of the petitioner for the years 2000-2001, 2001-2002, 2002-2003 and 2003-2004, for directing the respondents to give benefits of, First Assured Carrier Progression Scheme (ACP) w.e.f. 25.08.2005 in the Pay Scale of Rs. 8000-13500 (Revised Pay Scale of Rs. 9300-34800 + Grade Pay of Rs. 5400), Second ACP from 01.09.2008 in the grade of Rs. 15600-39100 + Grade Pay of Rs. 6600 (and not the Pay Scale of Rs. 9300-34800 + Grade Pay of Rs. 5400 as had been granted by the department vide Office Order No. 23/2010 dated 06.04.2010) and for promotion to the post of Senior Marketing Officer w.e.f. 14.03.2008 as had been granted to his junior i.e. Shri S.C. Saha. 2. Claim of the petitioner before the Tribunal was that he was ignored for the grant of first ACP with effect from 09.08.1999, second ACP on completion of 24 years w.e.f. 01.09.2005 besides regular promotion as Senior Marketing Officer with effect from the date the same had been granted to his juniors vide Office Order No. 14.03.2008. The plea of the petitioner before the Tribunal was that he was fully eligible for the aforesaid benefits and it appeared that either his case had not been considered on account of non-availability of the ACRs or on the basis of adverse material available with the respondents which had not been brought to his notice, particularly grading in the ACRs. 3. In support of his contentions, the petitioner placed reliance on the decision of the Hon'ble Supreme Court in case titled as Dev Dutt vs. Union of India and Others, 2008 (3) SCT 429 , Abhijit Ghosh Dastidar vs. Union of India and Others, as also Writ Petition No. 4003-4004 of 2005 in the matter of Union of India and Another vs. Ranju Prasad decided by the Delhi High Court. 4. 4. The stand of the respondents before the Tribunal was that the petitioner was considered for promotion along with other eligible Officers in the feeder grade but was not found fit by the Departmental Promotion Committee (DPC) in view of his over all service record, that the petitioner had failed to fulfil the benchmark, educational qualifications mandatory for grant of ACP to the grade of Senior Marketing Officer (Group-III) in the Pay Scale of Rs. 8000-13500 (pre-revised), that even prior to the revision of rules, the petitioner was not possessing minimum qualification of Master Degree in Chemistry/Agricultural Chemistry/ Dairy Chemistry/Dairying from recognised University and he only possessed the educational qualification of B.Sc. (Chemistry) and M.Sc.(Botany), therefore, was not eligible for promotion to the post of Senior Marketing Officer (Group-III), that after the amendment of the rules with effect from 25.08.2005 whereby the requisite stipulated educational qualification was exempted for promotion of Officers holding the post of Marketing Officer (Group-III) with effect from the aforesaid date, the petitioner was considered for grant of ACP under rules but was not found fit by the DPC, therefore, he had no case in his favour and could not claim parity with his juniors, who fulfilled the prescribed benchmark for the purposes. 5. In the aforementioned background, on perusal of the record, the Tribunal came to the conclusion that it was a matter of record that the petitioner had been considered by the DPC for the first and second ACP along with his juniors but was not found eligible keeping in view that his grading for the ACRs from 2001-2004 was Average. However, in the year 1999-2000, the petitioner had been graded as Good therefore, by accepting the contention of the petitioner that poor/down grading of his ACR from Good to Average should have been communicated to him so as to enable him to improve himself, the Tribunal was of the view that the respondents were silent on the point as to whether the respondents had communicated the ACRs to the petitioner or not. 6. 6. The Tribunal held that the material available with the respondents to consider the case of the petitioner had been used for considering his case for promotion behind his back and without following the principles of natural justice as well as procedure laid down by the Hon'ble Supreme Court in Dev Dutt's case (supra) and that non conveying of the ACR's had adversely affect the petitioner's case and also resulted in the denial of an opportunity to him to make efforts to improve his efficiency in his working. 7. In the aforementioned backdrop, the OA was disposed of by directing the respondents to convey the down grading of ACRs to the petitioner for the relevant years within a period of one month from the date of receipt of copy of the order, whereupon the petitioner would be entitled to submit a representation to the competent authority, who, on receipt thereto, would examine the case of the petitioner and would pass appropriate orders and that if on such consideration, the petitioner's ACRs were upgraded, his case would be reconsidered for grant of the first and second ACP and also for promotion to the post of Senior Marketing Officer (Group-III) by holding the review DPC within a period of three months thereafter in view of the impending retirement of the petitioner on 31.08.2010. 8. In the writ petition before this Court, the stand of the petitioner is that pursuant to the directions of the Tribunal, the department conveyed the ACRs which were down graded i.e. for the years 2000-2001, 2001-2002, 2002-2003 and 2003-2004 but he had not been conveyed the ACR for the year 1999-2000 and that as per record, it was the admitted position that his ACR for the year 1999-2000 was Good. 9. 9. By referring to paragraph No. 13 of the writ petition, learned counsel for the petitioner contended that while in the ACRs for the years 2002-2003 and 2003-2004, the Reporting Officer had graded the petitioner as Good but the Reviewing Officer has downgraded the grading to Average without assigning any reason and without giving any opportunity of hearing to the petitioner or for that matter issuing any notice for the down grading; that the petitioner and similarly situated employees had to work under the supervision of the Reporting Officer who was having direct contact with the employee and who judged the day to day working of the employee; that the Reviewing Officer had no direct contact with the employee and if at all, had to disagree with the remarks of the Reporting Officer, he had to supervise the work of the employee and also give reasons for the same. It was further submitted that in the instant case, the Reviewing Officer had neither come in contact with the petitioner nor had given any counselling to him nor any reason for changing the ACR from Good to Average. Plea on behalf of the petitioner is that when the case for grant of ACP and subsequently, promotion was considered by the DPC, at that time, the norms were three Good ACRs out of five ACRs and that since the petitioner was having only one Good ACR for the year 1999-2000, therefore no ACP was granted. 10. It is submitted that although the petitioner was granted the benefit of first and second ACP vide Order No. 23 dated 06.04.2010 (Annexure-G) under modified ACP Scheme recommended by the 6th Pay Commission in the Grade Pay of Rs. 4800-5400 respectively for the first and second ACP yet he was entitled to first ACP in the grade pay of Rs. 5400 from 25.08.2005 as was granted to his junior Shri S.C. Saha in the Pay Scale of Rs. 8000-13500 (Revised Pay Scale of Rs. 9300-34800 + Grade Pay of Rs. 5400) and second ACP w.e.f. 01.09.2008 in the pay Scale of Rs. 15600-39100 + Grade Pay of Rs. 6600 and was also entitled for promotion w.e.f. 14.03.2008 as Sr. Marketing Officer vide Annexure J which was given to his juniors but not to him because of the ACRs which were wrongly down graded without any reason and without giving an opportunity of being heard. 11. 15600-39100 + Grade Pay of Rs. 6600 and was also entitled for promotion w.e.f. 14.03.2008 as Sr. Marketing Officer vide Annexure J which was given to his juniors but not to him because of the ACRs which were wrongly down graded without any reason and without giving an opportunity of being heard. 11. Learned counsel for the petitioner submitted that the record clearly shows that ACRs for the years 2002-2003 and 2003-2004 had been down graded without any reason and without adopting the procedure as laid down under law, therefore when the down grading was illegal, it clearly meant that the petitioner had three ACRs as Good out of five ACRs, therefore the petitioner was entitled for the first ACP with effect from 25.08.2005, second ACP w.e.f. 01.09.2008 has also promotion w.e.f. 14.03.2008 i.e. the date his juniors had been granted promotion. It has further been argued that since the record was available before the Tribunal, it ought to have examined the ACRs and granted the necessary relief to the petitioner itself since down grading of the ACRs was contrary to law and that the direction of the Tribunal to the authorities to re-examine the matter was not possible at this belated stage because a special procedure has been provided that the Officer would personally supervise the work and conduct of the employee which was not possible at this stage as the petitioner was on the verge of retirement and was going to retire on 31.08.2010, the Reviewing Officer of the relevant period of time had also retired and further that since the record was available before the Tribunal, it was obligatory on the Tribunal to have restored the grading Good as recorded by the Reporting Officer and to grant him relief prayed for. Learned counsel for the respondents has not been able to controvert the factual position as has been stated by the learned counsel for the petitioner. 12. We have considered the submissions made by learned counsel for the petitioner and find merit in the same. Admittedly, as per the law laid down by the Hon'ble Supreme Court in Dev Dutt's case (Supra) as well as subsequent decision of the Hon'ble Supreme Court in case titled as Sukhdev Singh v. Union of India and ors. 12. We have considered the submissions made by learned counsel for the petitioner and find merit in the same. Admittedly, as per the law laid down by the Hon'ble Supreme Court in Dev Dutt's case (Supra) as well as subsequent decision of the Hon'ble Supreme Court in case titled as Sukhdev Singh v. Union of India and ors. reported as 2013 (9) SCC 566 , it has been categorically laid down that every entry in the ACR of a public servant, whether recorded as Poor, Fair, Average, Good, Very Good, or Outstanding is to be communicated to the concerned employee within a reasonable period of time and that mere communication only of adverse entry is not enough. Relevant extract i.e. paragraph No. 8 of the decision of the Hon'ble Supreme Court in Sukhdev Singh's case is reproduced as under:- "In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for up-gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR "poor, fair, average, good or very good" must be communicated to him/her within a reasonable period." 13. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR "poor, fair, average, good or very good" must be communicated to him/her within a reasonable period." 13. As far as the plea of the petitioner that the Reporting Officer had recorded the remarks as Good for the years 2002-2003 and 2003-2004 but that the Reviewing Officer while agreeing with the said remarks had without giving any reason in respect thereto reduced the grading from Good to Average we indeed find it strange that while admittedly the petitioner worked under the Reporting Officer and on the basis of the assessment of the day to day working of the petitioner the Reporting Officer graded him as Good and the Reviewing Officer agreed with such reporting but changed the grading from Good to Average. In such circumstances, it belies comprehension as to on what basis the grading was reduced from Good to Average, particularly in view of the fact that the Reviewing Officer did not have the first hand information of the working of the petitioner. Moreover, the ACR for the year 1999-2000 was also recorded as Good. It has also not been pointed out from the record by the learned counsel for the respondents that any kind of advisory had been issued to the petitioner either by the Reporting Officer or by the Reviewing Officer during the period in question. 14. The Hon'ble Supreme Court in case titled S.T. Ramesh vs. State of Karnataka and Another, (2007) 9 SCC 436 in paragraph No. 41 was pleased to hold that the Court has to make an assessment as to whether the remarks were merited by the officer on account of his performance and further in paragraph No. 43 that on perusal of the entire service record of the appellant, it found that the remarks of the Reporting Officer for the period in question were contrary to the officers consistent performance. 15. A perusal of the decision of the Hon'ble Supreme Court in S.T. Ramesh's case (supra) reveals that it is open to the Court to go into the question whether the remarks made in the ACR of an Officer are warranted in the facts of the case. 16. 15. A perusal of the decision of the Hon'ble Supreme Court in S.T. Ramesh's case (supra) reveals that it is open to the Court to go into the question whether the remarks made in the ACR of an Officer are warranted in the facts of the case. 16. In the instant case, as has been noticed by us, the Reporting Officer who had opportunity to assess the work and performance of the petitioner on day to day basis had graded the petitioner as Good for the years 2002-2004 and that although the Reviewing Officer had agreed with the assessment of the Reporting Officer yet had reduced the grading in the ACR from Good to Average, that too, without giving any remarks/reasons, on the basis of which the grading was being reduced from Good to Average. Such an action is clearly, legally unsustainable. 17. Consequently, we hold that the action of the Reviewing Officer in reducing the grading from Good to Average that too without giving any reason whatsoever for reducing the grading from Good to Average while agreeing with the Good grading recorded by the Reporting Officer is legally unsustainable. Accordingly, we quash the reduction of grading in the ACR for the years 2002-03, 2003-04 from Good to Average and hold that the grading as Good given by the Reporting Officer as agreed by the Reviewing Officer would be the grading which will enure in favour of the petitioner. Resultantly, the respondents would take a fresh decision with regard to the entitlement of the petitioner for the grant of ACP as well as promotion with effect from the due dates by taking into account the fact that the grading of the petitioner in the ACR for the years 2002-2003 and 2003-2004 is Good Needful be done within a period of two months from the date of receipt of certified copy of the order. 18. On fresh assessment being made and it being found that the petitioner is entitled for the grant of benefits, the same would be admissible with effect from the date of entitlement to the same and the petitioner would be entitled to arrears on account of grant of said benefits. 19. The writ petition is allowed in the aforementioned terms. No order as to costs.