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2018 DIGILAW 2295 (ALL)

Union of India v. Vivek Balwant Rao Umap

2018-11-02

B.AMIT STHALEKAR, JAYANT BANERJI

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JUDGMENT : B. Amit Sthalekar, J. 1. Heard Sri Om Prakash Gupta, learned counsel for the petitioners and Sri. Shyamal Narain, learned counsel for the respondent no.1. 2. This is a writ petition filed on behalf of the Union of India, Ministry of Defence, Controller General of Defence Accounts challenging the order of the Central Administrative Tribunal dated 16.11.2017 whereby the Tribunal set aside the order dated 30.09.2011 by which the representation of the respondent no.1 was rejected and a direction was issued to the petitioner Department to consider his case for promotion to the post of Junior Administrative Grade by holding review DPC and further for the post of Non Functional Selection Grade keeping in view that his juniors have been promoted and he has also undergone the penalty imposed upon him. The second order dated 14.02.2018 is the order passed by the Central Administrative Tribunal dismissing the petitioner's review petition. 3. Briefly stated the facts of the case are that the respondent no.1 was awarded a minor penalty vide order dated 20/21.12.2005 whereby penalty of reduction in pay by one stage from Rs.10,875/-to Rs.10,650/-for a period of three years without cumulative effect with the further stipulation that the same would not adversely effect his pension was passed. His case was that when the respondent no.1 was undergoing the penalty the officers of his batch were appointed on the post of Junior Administrative Grade w.e.f. 01.04.2007 but he was not granted promotion on the ground that he was undergoing punishment and that he had also been awarded a grading of 'Good' in his ACR for the year 2005-2006. It is stated that on account of the penalty order awarded to the respondent no.1 a secret note regarding his integrity was placed in his ACR for the year 2003-04 and after the respondent no.1 completed his period of penalty the secret note was opened and the facts were recorded in his ACR and a certificate to this effect dated 26.08.2009 was communicated to the respondent no.1. It is stated that thereafter the batch immediately senior to respondent no.1 were appointed to the post of Non Functional Selection Grade in the Pay Scale of Rs.37400-67000/-plus Grade Pay of Rs.8700/-w.e.f. 01.01.2009 vide letter/order dated 19.12.2008. Thereafter the batch of respondent no.1 was also appointed to the post of Non Functional Selection Grade in the same Grade w.e.f. 01.01.2010 vide order dated 22.12.2009. Thereafter the batch of respondent no.1 was also appointed to the post of Non Functional Selection Grade in the same Grade w.e.f. 01.01.2010 vide order dated 22.12.2009. 4. The case of the petitioner-department is that the ACR grading of the respondent no.1 for the year 2005-06 was only a 'Good' which was below the bench mark of 'Very Good' and therefore, the respondent no.1 could not have been promoted in any case even if his penalty period was ignored. 5. The contention of respondent no.1 was that his penalty came to an end on 20.12.2008 and therefore, his claim for promotion to the post of Non-Functional Selection Grade should also have been considered by the petitioner-department alongwith his batch mates w.e.f. 01.01.2010 when the order of 22.12.2009 was passed and a review DPC should have been conducted to consider the claim of the respondent no.1. 6. Learned counsel for the petitioner-department submitted that the ACR of the respondent no.1 for the year 2005-06 was 'Good' which was adverse so far as the post of Junior Administrative Grade was concerned, since the minimum bench mark for the post of Junior Administrative Grade was 'Very Good' and therefore, in any case when the DPC met on 19.04.2008 he was declared unfit and he was declared unfit by the next 2 DPCs for the year 2009-10 and 2010-11 again for the reason that in his ACR the column of integrity was blank. 7. The learned counsel for the petitioners laid stress on the DOP & T letter dated 13.04.2010 and submitted that an employee who has to be considered for promotion in future DPC his ACR relevant for that DPC would be considered and there is no question of review DPC. 8. The undisputed facts between the parties are that the batch mates of respondent no.1 became qualified for promotion to the post of Junior Administrative Grade of IDAS on 01.01.2008 on completion of 5 years of regular service in STS as per the Recruitment Rules, 2000. The DPC was constituted for the year 2008-09 to consider eligible officers for promotion to the Junior Administrative Grade. The respondent no.1 was considered but declared unfit by the DPC held on 19.04.2008 and he was again considered unfit in the next two DPCs for the year 2009-10 and 2010-11. The DPC was constituted for the year 2008-09 to consider eligible officers for promotion to the Junior Administrative Grade. The respondent no.1 was considered but declared unfit by the DPC held on 19.04.2008 and he was again considered unfit in the next two DPCs for the year 2009-10 and 2010-11. The respondent no.1 was communicated the entry of 'Good' for the year 2005-06 only after he submitted a representation dated 10.05.2010 and thereafter vide communication letter dated 12.08.2010 informing him that entry of 'Good' for the year 2005-06 had been upgraded to 'Very Good' and thereafter he was considered by the DPC for the year 2011-12 held on 01.03.2011 and then promoted to the Junior Administrative Grade w.e.f. 01.04.2011. 9. Again for the next promotion to the post of Non-Functional Selection Grade of the Junior Administrative Grade the respondent no.1 was considered by the DPC for the year 2012-13 but it was noted that in his Annual Performance Appraisal Report (APAR) for the year 2010-11 his integrity column has been left blank and a secret note had been attached. The respondent no.1 therefore, submitted a representation on 12.07.2011 which was rejected by the Controller General Defence Accounts (CGDA) Delhi, Cantt. vide his letter dated 14.09.2011 stating that there was no such recommendation of the DPC in his case. He was also intimated vide letter dated 30.09.2011 that there was no provision in the Rules for holding a review DPC consequent upon upgradation of the ACR as per DOP & T Office Memorandum dated 13.04.2010. 10. Sri Shyamal Narain, learned counsel for the respondent no.1 per contra submitted that the said respondent was awarded a penalty on 20/21.12.2005 which was a minor penalty for a duration of 3 years and come to an end on 20.12.2008 and therefore, the respondent no.1 was fully eligible to be considered for promotion alongwith his batch mates to the post of Junior Administrative Grade when the DPC met w.e.f. 01.01.2010 vide order dated 22.12.2009. His further submission was that the entry of 'Good' which was awarded to him for the year 2005-06 would be an adverse entry because the bench mark for the post of Junior Administrative Grade was 'Very Good' and therefore, the entry of 'Good' being an adverse entry ought to have been communicated to him. 11. His further submission was that the entry of 'Good' which was awarded to him for the year 2005-06 would be an adverse entry because the bench mark for the post of Junior Administrative Grade was 'Very Good' and therefore, the entry of 'Good' being an adverse entry ought to have been communicated to him. 11. He further submitted that this entry of 'Good' was never communicated to him and it is only when he made a representation on 10.05.2010 against his non promotion alongwith batch mates that this entry was communicated to him under covering letter dated 12.08.2010 with the remark that the entry of 'Good' had been reviewed for the year 2005-06 and it had been upgraded to 'Very Good', therefore, the submission of the learned counsel for the respondent no.1 is that in any case once the entry of 'Good' for the year 2005-06 was upgraded to 'Very Good' may be in 2010 the said entry would relate back to the year 2005-06 and therefore, after completion of the period of minor penalty on 20.12.2008 the respondent no.1 was eligible to be considered for promotion with his batch mates to the post of Junior Administrative Grade. 12. His next contention is that merely saying that after completion of the period of penalty when his service record was examined by the subsequent DPCs it was found that in the column of integrity the same was blank and therefore he could not be promoted was also absolutely illegal and erroneous for the reason that when there is no remark regarding integrity awarded then it cannot presumed that his integrity was not certified. 13. The Supreme Court in (2016) 15 SCC 399 (Shakti Kumar Gupta Vs. State of Jammu & Kashmir and Another) in para 11 has held as under: “11. The annual confidential report being bereft of any assessment of the work and conduct of the petitioner for the period from 2.1.2009 to 31.12.2009, the same is liable to be treated as no report, for all intents and purposes. In view of the above conclusion, it is also imperative for us to further hold, that treating the work and conduct of the petitioner as “Average” for the years 2010, 2011 and 2012 on the basis of the report for the year 2009 is therefore, also not sustainable in law. 14. In view of the above conclusion, it is also imperative for us to further hold, that treating the work and conduct of the petitioner as “Average” for the years 2010, 2011 and 2012 on the basis of the report for the year 2009 is therefore, also not sustainable in law. 14. We find from the documents on record particularly the documents filed at page 236 of the paper book that the respondent no.1 was awarded the entry of 'Good' for the year 2003-04, 2004-05 and 2005-06 (which was later upgraded to 'Very Good' vide order dated 12.08.2010 and again for the year 2006-07 when he was undergoing penalty he was awarded the entry of 'Very Good'. 15. Reliance has also been placed on the judgment of the Supreme Court in the case of Dev Dutt Vs. Union of India and Others reported in (2008) 8 SCC 725 in which the Supreme Court in paragraphs 9, 10, 13 and 17 has held as under: 9. 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. 10. 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 199394 should be upgraded from 'Good' to 'Very Good'. 10. 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 199394 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 appellant 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. 11............ 12........... 13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a ‘good' or ‘average' or ‘fair' entry certainly has less chances of being selected than a person having a ‘very good' or ‘outstanding' entry. 14............ 15........... 16........... 17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.” 16. The Supreme Court in the case of Abhijit Ghosh Dastidar vs. Union of India and Others reported in (2009) 6 SCC 146 in paragraphs 4 & 5 has held as under: (4) It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. 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 ACR 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 for promotion or get 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 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. (5) Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules. 17. 17. Learned counsel for the respondent no.1, however submitted that the contention of the Department that in view of the DOP & T Office Memorandum dated 13.04.2010 no review DPC can be held and that if an employee is to be considered for promotion in future DPC and his ACRs for the period relevant to that DPC alone would be reckonable for assessment of his fitness is an absolutely illegal assumption of law. 18. We have considered the submission of the learned counsel for the parties and perused the documents on records. What we notice from the pleadings and documents on record and what is also un-disputed between the parties is that the respondent no.1 was awarded a minor penalty vide order dated 20/21.12.2005 which came to an end on 20.12.2008. The DPC which considered his batch mates met on 19.04.2008 when he was declared unfit and his batch mates were promoted to the post of Non Functional Selection Grade w.e.f. 01.01.2008. It is also not disputed that for the year 2005-06 the respondent no.1 was awarded the entry of 'Good' which was below the bench mark of 'Very Good' as required for promotion to the post of Junior Administrative Grade. Admittedly, this entry was 'Good' was never communicated to the respondent no.1 and it was only when he made a representation on 10.05.2010 that in reply he was informed that he had been awarded the entry of 'Good' but thereafter it was reconsidered by the authorities and the entry of 'Good' was upgraded to 'Very Good' for the year 2005-06. 19. We are therefore of the firm opinion, that the entry of 'Good' where the required bench mark is 'Very Good' would amount to an adverse entry and therefore it ought to have been communicated to the respondent no.1 at the relevant point of time in 2005-06 itself. Having failed to communicate the said entry to the respondent no.1 the said entry could not have been used to obstruct his promotion to the post of Junior Administrative Grade. Having failed to communicate the said entry to the respondent no.1 the said entry could not have been used to obstruct his promotion to the post of Junior Administrative Grade. Even otherwise the said entry of 'Good' stood upgraded to 'Very Good' for the year 2005-06 and therefore on whatever future date the entry of 'Good' may have been upgraded to 'Very Good' it would relate to the back of the year 2005-06 and therefore that would be the relevant entry for consideration for promotion of the respondent no.1 to the post of Junior Administrative Grade when the DPC first met to consider his batch mates on 19.04.2008 having said that we find that the respondent no.1 on that date was unfit for the reason that he was still under minor penalty the effect of which came to an end on 20.12.2008 and therefore a review DPC ought to have been held. 20. The contention of the petitioner department that even against future DPCs it was found that the entry against the column of integrity was blank we find that if an entry for a particular year has not been given at all it cannot be an impediment or a hurdle in consideration of the respondent no.1 for promotion and the Department will in such circumstances have to consider the claim of the respondent no.1 on the basis of the entries existing in the ACR or in the previous ACRs. 21. In the present case since the entry for the year 2005-06 stood upgraded to 'Very Good' the respondent no.1 would be entitled to the benefit thereof and in pursuance of that entry he would be deemed to be fit for promotion subject to such other condition which may otherwise disqualify him. 21. In the present case since the entry for the year 2005-06 stood upgraded to 'Very Good' the respondent no.1 would be entitled to the benefit thereof and in pursuance of that entry he would be deemed to be fit for promotion subject to such other condition which may otherwise disqualify him. As regards the contention of the petitioner-department that in view of the DOP & T Office Memorandum dated 13.04.2010 that if an employee is to be considered for promotion in future DPC then only the below bench mark entries for the period relevant to such promotion need to be communicated and not the below bench mark entries for the previous years, we may referred to Office Memorandum dated 13.04.2010 which reads as under: "No. 210111112010-Estt.A Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training ***** North Block, New Delhi Dated the 13th April, 2010 OFFICE MEMORANDUM Subject: Below Benchmark grading in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading. The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years. 2. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years. 2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-a-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion. 3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority. (C.A. Subramanian) Director" 22. In our opinion, the Office Memorandum dated 13.04.2010 cannot be interpreted to mean that an employee who had a below bench mark entry in his ACR the same cannot be communicated to him. Moreover, if such ACR is subsequently upgraded its benefit would be available for consideration by future DPCs. Any interpretation to the contrary would be in the teeth of the judgment of the Supreme Court in the case of Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra). 23. Moreover, if such ACR is subsequently upgraded its benefit would be available for consideration by future DPCs. Any interpretation to the contrary would be in the teeth of the judgment of the Supreme Court in the case of Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra). 23. We, therefore are of the opinion that the respondent no.1 is entitled for promotion to the post of Junior Administrative Grade alongwith his batch mates w.e.f 20.12.2008 and in the Non Functional Selection Grade w.e.f. 01.01.2010 as claimed by him in his relief in the Original Application subject to such other condition which may otherwise disqualify him. 24. Therefore, on a conspectus of facts and the law laid down in the case of Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra), we do not find any illegality or infirmity in the impugned orders dated 16.11.2017 and 14.02.2018. 25. The writ petition lacks merit and is accordingly dismissed.