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2023 DIGILAW 11 (JHR)

Kumar Krishnanand Bhagat v. Union of India

2023-01-03

APARESH KUMAR SINGH, DEEPAK ROSHAN

body2023
JUDGMENT : Petitioner approached this Court with the following prayers. a) For quashing the order dated 13.2.2017 passed in O.A No.051/00217/2015 by the learned Central Administrative Tribunal (CAT), Patna Bench, Circuit Court at Ranchi; whereby the Original Application preferred by the petitioner has been dismissed. (ii) For a direction upon the respondents to grant the promotion to the petitioner to the post of Post Master General (SAG) with effect from 2007 i.e., from the date of the entitlement of promotion of the petitioner to the said post along with the consequential benefits by ignoring the entries made in the ACR communicated to the petitioner on 29.6.2011 and 28.09.2011 as the same was not communicated to the petitioner within the reasonable period of time. (iii) For a direction upon the respondents to grant the promotion to the petitioner to the post of Chief Post Master General with effect from 2012 i.e., from the date when the batch mates of the petitioner have been promoted to the said post along with all consequential benefits. 2. The brief fact of the case as revealed in the instant writ application is that the petitioner, a member of Indian Postal Services, 1984 Batch while he was posted at Kolkata, was served with a charge-memo on 5.9.2003 and disciplinary proceeding was initiated against him, which subsequently culminated into exoneration of the petitioner on 30.9.2010. The petitioner was due for his promotion in the year 2007 for the post of Postmaster General (SAG) but since the departmental proceeding was pending against the petitioner, his case was put under ‘sealed cover’ by the DPC which was held on 5.2.2007. Since the petitioner was exonerated from his Departmental proceeding on 30.9.2010, he filed a representation for granting him promotion to the post of Postmaster General (SAG) w.e.f. 2007, the date on which he was entitled for his promotion to the said post. Surprisingly, respondent authorities issued a letter dated 29.6.2011 to the petitioner asking him to submit his representation within fifteen days against his ACR for the period 1.4.2004 to 11.7.2004; 12.7.2004 to 31.3.2005 and for the assessment year 2005-06 and 2006-07. The respondent authorities yet again issued another letter to the petitioner on 28.9.2011 for submitting his representation within 15 days. 3. The respondent authorities yet again issued another letter to the petitioner on 28.9.2011 for submitting his representation within 15 days. 3. Learned counsel for the petitioner submits that since the promotion of the petitioner to the post of Postmaster General could not be granted to him on 12.1.2011 and 10.6.2011, he submitted representation dated 10.6.2011 before the departmental authority explaining his grievances and requested for granting him promotion due to him along with his batch mates from the year 2007 and also relied on the notification dated 11.5.1990 issued by the DOPT which specifically stipulates the guidelines that if the remarks has been recorded in any of the CRs pertaining to three immediately preceding years prior to the year in which the DPC is held, the Cadre Controlling Authority concerned shall communicate the adverse remarks to the officers concerned so that he may have an opportunity to make a representation against the same. He further submitted that it is well settled law that no adverse entry made in the character roll of the person can be utilized against him unless the same is communicated. Recently on 23.2.2017, the petitioner was granted promotion to the post of Postmaster General (SAG) and is presently working in the said post at Varanasi Region, Varanasi (U.P.). 4. The specific grievance of the petitioner is that the persons junior to the petitioner have already been granted promotion and are working on the post of Chief Postmaster General. For grant of his promotions, the petitioner moved before the learned CAT, Patna Bench, Circuit Court at Ranchi. The learned Tribunal has rejected the claim of the petitioner vide order dated 13.2.2017 (Annexure-5). 5. Learned counsel for the respondent-Union of India submits that the existing practice of communication only reckonable below benchmark ACRS/APARS concerning the period prior to 2008-09 to the reported officer was introduced vide DoP&T OM No.21011/I/2010-Estt.A, dated 13.4.2010 in compliance of the Apex Court judgment dated 12.5.2008 in the case of Dev Dutt Vs. Union of India in Civil Appeal No.7631 of 2002. The aforesaid O.M. dated 13.4.2010 is applicable in future Departmental Promotion Committees only i.e., before consideration of the officer’s fitness for promotion. Union of India in Civil Appeal No.7631 of 2002. The aforesaid O.M. dated 13.4.2010 is applicable in future Departmental Promotion Committees only i.e., before consideration of the officer’s fitness for promotion. Accordingly, when the DPC for the vacancy years 2010-11, 2011-12 and 2012-13 was held on 15.09.2012, the ACRs for the period 2004-05, 2005-06 and 2006-07 (reckonable ACRS) were communicated to the petitioner vide letter dated 29.6.2011 with a request to make representation, if any, against the below benchmark grading. In response, the representation made were decided by the competent authority in accordance with the present instruction of DoP&T. The other ACRs/APARs (i.e., prior to 2004-05) were not communicated to the petitioner as the aforesaid instruction came into force on 13.4.2010 and only ACRs/APRs for the year 2004-05 onwards were reckonable for DPC held after 13.04.2010. As per the O.M. No.21011/1/2005-Estt. (A) (Pt-II) dated 14.5.2009 from 2008-09 onwards, all the entries in the APARs are being communicated for representation, if any, to the competent authority. Accordingly, all the ACRs/APARs since 2008-09 have been communicated to the petitioner. Learned counsel further submitted that the petitioner was in the zone of consideration (ZOC) of the DPC held on 05/02/2007 for promotion to the Senior Administrative Grade (SAG) of the Indian Postal Service Group ‘A’ for supplementary vacancies for the 2006-07 and regular vacancies for the years 2007-08 for the first time. Learned counsel contended that vide Memo No.22-42/MC/2000-Vig.dated 30/09/2010, the charges framed against the petitioner were dropped. As per para-3 of the DoP&T OM No.22011/4/91-Estt. (A), dated 14.9.2022 “on the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the government servant, the sealed cover or covers shall be opened. Thereafter, the recommendations of the DPCs which were kept in sealed were opened in the Department on 11th October, 2010. The other ACRs/APARs (i.e. prior to 2004-05) were not communicated as these instructions came into force on 13.04.2010 and only ACRs/APARs for the year 2004-05 onwards were reckonable for DPC held after 13.04.2010. The below benchmark reckonable ACRs for the period 2004-05, 2005-06 and 2006-07 were communicated to the petitioner one year prior to the actual date of DPC for promotion to SAG for the vacancy year 2010-11, 2011-12 & 2012-13 i.e., 15.09.2012 in terms of DoP&T OM No.21011/1/2010-Estt. A, dated 13.4.2010 and the petitioner’s allegation of non-communication of ACRs within the reasonable time is misconceived 6. A, dated 13.4.2010 and the petitioner’s allegation of non-communication of ACRs within the reasonable time is misconceived 6. We have considered the submissions of learned counsel for the parties and taken note of the materials relied upon from the record. It clearly transpires from the pleadings on record that the petitioner’s promotion in 2007 was indeed considered but the results were kept in a sealed cover on account of pendency of disciplinary proceedings which had been initiated against him in 2003. Further, a perusal of the order exonerating the applicant dated 30.09.2010 also clearly indicate that the disciplinary proceedings were dropped with the following observations: …since the recommendation is for minor penalty to be imposed and since his promotion is withheld for nearly 6 years, I feel he has been penalized enough. Hence no further penalty be imposed”. Therefore, it is noticeable that this is not a case of exoneration on merit but a case of dropping the proceeding on compassionate consideration. 7. It is further evident from the pleadings that once the disciplinary proceedings were dropped, the applicant’s ACRs stood in the way of his promotion since had been declared ‘Unfit’ on account of poor ACR grading. It is also apparent that the practice of communicating ACRs commenced only by virtue of DOPT’s circular in 2009 and 2010. As such, the respondents were clearly not at fault for not communicating ACRs grading of the petitioner prior to issuance of these orders since the practice itself was not so stipulated. The records clearly show that after issuance of DOPT instructions/guidelines in 2009 and 2010, the petitioner was given an opportunity to represent against his ACRs grading and that he did so. Further, these representations have been duly considered but the conclusion has not resulted in up-gradation of his grading barring modification for one year only. 8. Accordingly, the petitioner cannot claim denial of due opportunity or observance of procedural fairness in this regard. There are also no provisions under the rules / guidelines for fresh reconsideration of the matter. As such, the stand of the respondents that petitioner’s claim for fresh consideration is not maintainable is correct. In addition, no mala-fide or procedural violations have been established. 9. There are also no provisions under the rules / guidelines for fresh reconsideration of the matter. As such, the stand of the respondents that petitioner’s claim for fresh consideration is not maintainable is correct. In addition, no mala-fide or procedural violations have been established. 9. Having regards to the discussion made hereinabove, we are of the considered opinion that learned Tribunal has not committed any error calling for interference by this Court in exercise of power under Article 226 of the Constitution of India. The learned Tribunal has rightly refused to grant any relief to the petitioner. Accordingly, this writ application stands dismissed.