Bom OA 442 of 2011 on 15-03-2013

Bom OA 442 of 2011 on 15-03-2013

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION No.442/2011

Dated this Friday, the 15th day of March, 2013.

CORAM: HON'BLE SMT LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT.CHAMELI MAJUMDAR, MEMBER (J)

Ms. Sushama V. Dabak,
Principal Accountant General
(Audit), Haryana,
Plot No.5, Dakshin Marg,
Sector-33-B,
Chandigarh-160020.

R/at B-5, Bagyoday,
Linking Road Extension,
Santacruz (W),
Mumbai 400 054.     ...   Applicant

(By Advocate Shri R.R. Shetty)

VERSUS

1. The Union of India,
through The Comptroller and
Auditor General of India,
    10, Bahadur Shah Zafar Marg,
  New Delhi 110 124.

2. Shri Gautam Guha,
Director General of
Audit Defence Services,
L-II Block, Brassey Avenue,
New Delhi 110 001.

3. G.N. Sunder Raja,
Pr. Accountant General (Civil
& Coml Audit), Kerala,
Thiruvananthapuram 695 039. ...   Respondents

(By Advocate Shri V.B. Joshi)

O R D E R
Per: Smt. Leena Mehendale, Member(A)
      This Original Application has been filed on 10.05.2011 under Section 19 of the Central Administrative Tribunals Act, 1985 with the main prayer as below:-
“(a)  This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the impugned communications dated 21.4.2010, 21.09.2010 & 17.01.2011.

(b)  This Hon'ble Tribunal may further be pleased to direct the Respondent that the ACRs of un-communicated years be ignored by the DPC and if the Applicant therein was found to be fit for promotion by the DPC, she was to be promoted from the date her immediate junior was promoted in the grade of PAG (Principal Accountant General) w.e.f. 29.5.2008 with restoration of her seniority over her junior officers.  With all consequential benefits such as arrears of pay with interest.”
2. Brief facts as stated by the Applicant are that the Applicant was due for promotion as PAG (Principal Accountant General) but was denied the same while two of her junior officers were promoted by the impugned order dated 29.05.2008 (Annexure A-10 and A-11).  They are not impleaded as applicant has nothing against their promotion.  Annexure A-7 the seniority list of Group 'A' Officers of Indian Audit and Accounts Department as on 01.08.2007, and applicant's name appears at Sl.No.70 whereas the two junior colleagues appear at Sl.No.71 and 72, hence it cannot be denied that she is senior.  On coming to the knowledge of promotion orders in Annexure A-10 and A-11 she realized that a DPC (Departmental Promotion Committee) held for this purpose on 26.05.2008 has not considered her fit for promotion as PAG, she made a representation dated 02.06.2008 (Annexure A-12) which was rejected by the Assistant CAG (Assistant Comptroller and Auditor General) of India vide his letter dated 19.06.2008 (Annexure A-14) on the ground that the DPC did not find her fit for promotion with reference to the prescribed benchmark.  It is pertinent to note that as per O.M.F.No.35034/7/97-Estt(D) dated 08.02.2002 (Annexure A-6), a benchmark of “Very Good” in ACR alone will make candidate eligible for promotion.  However, no ACR remark was communicated to her prior to the date of DPC so as to alert her that her performance was below the benchmark.  Hence she filed O.A.No.410/2008 before Bombay bench of CAT.  During the pendency of that O.A., the Government of India issued Notification O.M.No.21011/1/2005-Estt(A)(Pt-II) dated 14.05.2009 directing that the ACR (Annual Confidential Reports) be renamed as APAR (Annual Performance Appraisal Reports) and that copy of that APAR be provided to the concerned officials.  It is important to contrast the new O.M. With the earlier practice of not communicating the ACRs unless they contained an “adverse” entry.
3. It is further stated by the Applicant that she also made query under RTI (Right to Information Act) on 14.03.2009 which was partly allowed to the extent that she could go through the file of APAR and read and note the remarks.  This is how she noted that out of her past 5 years' APARs there were two remarks that could be construed as below the benchmark as they mention her performance as “Good”.
4. Under these facts the Applicant challenges the order dated 29.05.2008 in respect of Respondent Nos.2 and 3 and also the communications dated 21.04.2010 (Annexure A-1), 01.09.2010 (Annexure A-2 and 17.01.2011 (Annexure A-3) all rejecting her applications to give her promotion as PAG with effect from 29.05.2008.
5. The Applicant submits a chart for the grading given to her by the Reporting and Reviewing Officers as noted down by the Applicant from which it is seen that her grading from 01.06.2003 to 01.01.2004 and again from 03.02.2006 to 31.01.2007 that is 6 months in the first instance and 7 months in the second instance have come as “Good”.  The second entry for 7 months has been modified by Reviewing Officer as “Very Good”.  It is also seen that through out the period from 01.04.2002 to 31.03.2007 it is the same Reviewing Officer Mr.Kaul, the CAG.  We reproduce the chart here:-
Sr.No
Period covered by ACR
Status
Grading by Reporting Officer(Name)
Grading by Reviewing Officer

1.4.2002 to 30.6.2002
Gapsheet


2

1.7.2002 to 31.12.2002
6 Months
Very Good- Khandelwal-ADAI
Very Good-CAG Kaul
3

01/01/03 to 31.3.2003      
3 Months
Very Good- N Sundarajan ADAI
Very Good- CAG Kaul
4
1.4.2003 to 31.5.2003
Gapsheet


5
9.6.2003 to 1.1.2004
6 Months
Good- Satyamurthy ADAI
Good CAG- Kaul
6
1.1.2004 to 31.3.2004
3 Months
Very Good- Ganapathy
Very Good  CAG-Kaul
7
1.4.2004 to 18.10.2004
7 Months 17 days


8
19.10.2004 to 31.3.2005
5 Months 13 days
Outstanding- Sriniwasan
Very Good Kaul
9
1.4.2005 to 26.9.2005
About 6 months
Very Good- Sriniwasan
Very Good Kaul
10
27.9.2005 to 31.3.2006
6 months
Very Good- Basu
Very Good Kaul
11
1.4.2006 to 3.7.2006
3 months
Very Good- Basu
Good
12
3.7.2006 to 31.1.2007
7 months
Good Bhattacharya
Very Good- CAG Kaul
13
1.2.2007 to 31.3.2007
Gapsheet


6. It is also submitted that even though the DPC of 29.05.2008 did not consider her to be “fit” for promotion, the next DPC after one year held on 30.07.2009 found her suitable, and in so doing they were bound to ignore the remark of “Very Good” received for 2002-2003 and take into consideration the remark for 2007-2008 and must have noticed the same “Good” ACRs given to her for part period in 2003-04 and 2006-07.  Thus, if she is “fit” by the DPC standards for  2009, then she must also be “fit” for the DPC of 2008.  Hence she must be held eligible for promotion even for a purpose of DPC of 2008.
7. Another ground raised by the Applicant is that the O.M. dated 08.02.2002 declares that “Very Good” will be the benchmark for promotion.  It is, therefore, obvious that an entry of “Good” will adversely mar the prospects of promotion which are so crucial for any officer of her rank and, therefore, must be communicated.  The DOP&T after declaring “Good” to be below the benchmark should also have notified that a “Good” remark should be communicated, just as a remark of 'adverse' or 'average' was communicated in the earlier era.  The Applicant cites the Hon'ble Supreme Court's judgment reported in 2008 (8) SCC 725, Dev Dutt Vs. Union of India in which it was held -

“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 1993-1994 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 (through of course in a fair manner), but at least an opportunity of making such 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 done in this case. Hence, we are of the opinion that the non-communication of 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. ....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.

45. 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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.”
Finally,
“whether an entry is adverse or not, depends upon its actual impact on employee's career and not on its terminology So even a “good” entry can be adverse in the context of eligibility for promotion.”

This judgment has been delivered on 12.05.2008 that is before the DPC took place on 26.05.2008.

8. The learned counsel for the Applicant also cited the judgment of N.K.Bhola Vs. Union of India & Others in O.A.No.2330/2009 decided by the Principal Bench on 11.01.2010. The PB has relied on the judgment in Dev Dutt Vs. Union of India and given relief to the Applicant of that OA who also had not met the benchmark of “Very Good” for the preceding 5 years but had been graded as “good” which was below the benchmark but which was not communicated to him.  Accordingly, the Respondents of that OA were directed to hold a review DPC for considering the Applicant for promotion from previous years. The Principal Bench also directed the Respondents to ignore the non-communicated “below the benchmark remarks” as well as down-graded ACRs and directed to consider the ACRs of earlier period to find out the suitability and fitness of the Applicant.
9. The Applicant also refers to another batchmate Shri Balvinder Singh who appears at Sl.No.63 of the seniority list at Annexure A-7 who was given promotion by order dated 24.09.2010 but the said order was modified on 27.09.2010 and Shri Balvinder Singh was given notional promotion in the rank of PAG with effect from 29.05.2008 which is the date of promotion as PAG for his immediate junior Shri Rakesh Jain. His case however appears to be irrelevant. The reason for giving retrospective promotion to Shri Balvinder Singh with effect from 29.05.2008 appears to be the fact that he was on study leave w.e.f. 01.08.2007.  This does not appear to be a case of denying promotion on ground of below benchmark entry.  His notional promotion is as per exact rules.
10. The Argument of the Respondents Department is that as per the O.M. dated 18.02.2008 it is provided that the benchmark of “Very Good” should be achieved in all ACRs of 5 years under consideration and these instructions have come in force for the panel year 2008-2009.  Accordingly DPC held on 26.05.2008 did not find the Applicant suitable in view of some of the APARs marked as “Good”. The Applicant had filed O.A.No.410/2008 before Mumbai Bench to claim her promotion with effect from 29.05.2008 but took permission to withdraw the same as she was promoted to PAG with effect from 31.07.2009.  She then filed another O.A.No.946/2011 before the Principal Bench for same relief but again took permission to withdraw it with liberty to file OA at the Bombay Bench. Accordingly, the present O.A.No.442/2011 has come to be filed for the same relief and hence the Applicant is now estopped for claiming the same relief by way of challenging DPC decision of 2008.  Similarly, the issue of delay will also arise since the Applicant is challenging the letter dated 21.04.2010 through the present O.A. which is filed on 10.05.2011.
11. On the question of merit, the Respondents submits that the decision in the case of Dev Dutt vs. Union of India is under consideration of the Larger Bench of the Hon'ble Supreme Court and is contrasted with the judgment in-
2006 (9) SCC 69 the matter of Satya Naraain Shukla Vs. Union of India and

2008 (9) SCC 120 K.M. Mishra Vs. Central Bank of India.

The Respondents also cited SLP(C) 29515/2010 in the case of Union of India Vs. Uttam Chand Nahta     by which both the parties have been directed to maintain status-quo in view of the issue being pending before the Larger Bench.
12. On merit the Respondents also claim that in terms of earlier O.M. of DOP&T No.21011/1/2006-Estt.(A) dated 28.03.2006, only “adverse” remarks in the ACR were necessary to be communicated. The over all grading was not required to be communicated even if such grading was below the benchmark assessment for promotion. It is only after the DOP&T's OM dated 13.04.2010 that the communication of all the gradings below the benchmark has become mandatory.  Hence the non-communication of below the benchmark grading of “Good” cannot come to the rescue of the Applicant.  Her representation dated 02.06.2008 in this regard was also considered and decision communicated vide office letter No.3218-GE-I/S-208/Pt.III dated 19.06.2008.
13. It is, therefore, submitted that the Applicant is estopped from raising the issue once again in 2011.  She was found unfit by the two DPCs held on 26.05.2008 and 30.03.2009 respectively.  But was found fit only by the third DPC dated 30.07.2009 whereafter she was given promotion as PAG.  Her representation for giving her promotion with effect from 29.05.2008 was also considered and rejected. In view of this, the OA should be dismissed.
14. We have gone through all the records submitted by both the sides and the arguments made by both the learned counsel. It is mentioned by the respondents that OA No.410/2008 which agitates the cause of non- promotion for the year 2008 was withdrawn as applicant was promoted to the Grade of PAG for the year 2009. This indicates that before a decision could be taken in OA No.410/2008, the applicant received her promotion with effect from 31.07.2009 and must have required to completely change her line of arguments. She seems to have done so by seeking permission to withdraw OA No.410/2008 and filing a fresh OA No.946/2011 before Principal Bench of CAT but withdrew the same with the liberty to file a fresh OA before Bombay Bench. Therefore, the doctrine of res judicata as pleaded by
the respondents does not arise in this matter. Similarly, the issue of delay does not arise since the applicant has made the representation on 18.09.2009 (Annexure A-18) to reconsider by way of review DPC the issue of her promotion with effect from May, 2008 and, thereafter, again on 30.08.2010 (Annexure A-20). The respondents have not replied to both.  In any case, the delay is short and condoned.
15. We, therefore, proceed to decide the matter on merits. The arguments of the respondents as mentioned in Para 10 (supra), is not convincing. The DOPT by their OM dated 08.02.2002 (Annexure A-6) prescribed “very good” as a benchmark. The moment this is done, any ACR entry, which is less than “very good”, would take away the chance of an officer for promotion. It is to be noticed that this was not the case earlier. A person with some ACR remark showing “Good” would also remain eligible for consideration for promotion, hence it would not make a material difference to the issue of promotion if a remark of “good” is not conveyed and no chance is given to represent against the same. That situation gets reversed when a benchmark of “very good” is prescribed.
16. The respondents points out that relevant OM to communicate a remark of “good” was issued by DOPT only as late as 13.04.2010. However, such a late action by DOPT cannot be used to deprive any officer of her or his chance for representing against a below benchmark                                              ACR, which is likely to affect the promotion and other opportunities. The DOPT OM coming as late as 13.04.2010 (Annexure A-19) may not have required communication of below the benchmark grading prior to that date. However, the principle of natural justice would make it mandatory that such a grading should be communicated. Such a principle of Natural Justice runs supreme whether or not DOPT has been able to issue corresponding OM earlier. The DOPT cannot take away the right of government officers to expect fair play and natural justice by its omissions while changing the rule of promotion. The fact that prior to 2002 a person with ACR grading of “good” would also have been eligible for promotion by itself makes its mandatory that as soon as the benchmark for promotion is changed, other contingent action by the Government is also taken simultaneously. Officers, who have not been communicated any “below the benchmark” ACR cannot be held at the mercy of delay by DOPT in issuing the relevant OM to give a chance to the officers to represent against the below benchmark ACR.
17. Coming to citations the applicant has relied on:
a) Dev Dutt Vs. Union of India, (2008) 8 SCC 725.

b) Abhijit Ghosh Dastidar Vs. Union of India, 2009 (16) SCC 146 (Page 104).

c) N.K.Bhola Vs. Union of India, decided by CAT, Principal Bench on 11.01.2010.

d) Union of India and Anr. Vs. R.N.Kurmi, dated 14.01.2013 (Civil Appeal No.23481/2012).

e) Union of India and others Vs. K.V.Jankiraman and others, (1991) 4 SCC 109.

and the respondents are relied on:-

2006 (9) SCC 69 the matter of Satya Naraain Shukla Vs. Union of India and

2008 (9) SCC 120 K.M. Mishra Vs. Central Bank of India.

 Order dated 14.12.2012 passed in WP(L) No.2869 of 2012, Union of India & Ors. Vs. Col. Om Prakash Chand and Ors, decided by the Hon'ble High Court of Bombay.

  Order dated 19.01.2011 passed in WP No.7255 of 2010, Union of India & Ors. Vs. Prabhakar S.Patil and Anr., decided by the Hon'ble High Court of Bombay.

 SLP(C) 29515/2010 in the case of Union of India Vs. Uttam Chand Nahta, in which status quo has been ordered till pendency of the matter.      
18. The respondents point out that both in case of  Union of India & Ors. Vs. Col. Om Prakash Chand and others as well as in order dated 19.01.2011 passed in WP No.7255 of 2010, Union of India & Others Vs. Prabhakar S.Patil and Anr., the Hon'ble High Court of Bombay has considered the judgments of Supreme Court in Dev Dutt Vs. Union of India and Abhijit Ghosh Dastidar v. Union of India on one side and the case of Satya Narain Shukla v. Union of India and K.M.Mishra v. Central Bank of India on the other side. They have also referred to the case of Union of India v. A.K.Goel pending before the Supreme Court. After their considerations, the High Court have observed:-
“at this stage it prima facie appears that the least that can be said is that there is no clear law declared by the Supreme Court on the point involved in this petition. In other words, there are two conflicting views declared by the Supreme Court on the question involved in this petition and as for resolution of that conflict a reference has already been made to a larger bench of the Supreme Court, in our opinion, the safest course to be followed in this situation would be to admit the petition for final hearing.”

19. The learned counsel for applicant, however, points out that the latest observation is made by Hon'ble Apex Court in case of Union of India and Anr. Vs. R.N.Kurmi, dated 14.01.2013 (SLP No.23481/2012), which observed-
"Divergent views expressed by coordinate Benches of this Court on the question whether the grading given in the Annual Confidential Report (ACR) of an employee, which falls below the benchmark needs to be communicated to the concerned employee, so as to give him an opportunity to make a representation, before the same can be taken into consideration by the Departmental Promotion Committee (DPC) or the same is liable to be ignored altogether and other ACRs should be considered by the DPC was finally resolved by three-judge Bench in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146.
    However, by taking advantage of reference made by two-Judge Bench vide orders dated 29.3.2010 and 29.11.2010 passed in SLP(C) No.15700/2009 Union of India v. A.K.Goel and SLP(C) No.29515/2010 Union of India v. Uttam Chand Nahta, respectively, the petitioners have not been acting in consonance with the three-Judge Bench and this has generated in an unnecessary litigation.
The Apex Court further observed that-
     “A three member bench of CAT had considered OA No.847/2008 vide order dated 14.05.2010. The applicant therein was an Assistant Executive Engineer, who was not promoted in 2008 because he could not meet the prescribed benchmark in his ACRs, which was not communicated to him. The Tribunal directed that the concerned authority should communicate the below benchmark ACR and consider the case afresh after disposal of the case.

       By the impugned order the Division Bench dismissed the writ petition. While doing so, it took cognizance of the judgments of this Court in    

 Dev Dutt v. Union of India (2008) 8 SCC 725,

 Satya Narain Shukla v. Union of India 2006 (5) SCALE 627,

 K.M.Mishra v. Central Bank of India (2008) 9 SCC 120,

Abhijit Ghosh Dastidar v. Union of India, (2009) 16 SCC 146

 order dated 24.11.2009 passed in Civil Appeal No.5319/2003 Union of India v. J.S.Garg,

order dated 29.11.2010 passed in Union of India v. Ranjana Kale SLP(C) No.29929/2010 and

order dated 16.3.2012 passed in Civil Appeal No.6937/2011 Union of India v. N.K.Bhola and

 took cognizance of the fact that Sunil Mathur's case (SLP(C) No.7623/2011) was dismissed on 24.1.2012 in the light of the judgment in Abhijit Ghosh Dastidar (supra) and held that there is no valid ground to interfere with the order of the Tribunal.

    In our view, after having accepted and implemented the judgment in Abhijit Ghosh Dastidar's case (supra) and agreed for disposal of other similar matters in terms of the judgment of larger Bench, the petitioners cannot seek annulment of the order passed by the Tribunal.
   
    The Special leave petition is accordingly dismissed”.    

20. In view of the above, the OA is allowed. The impugned communications dated 21.04.2010, 21.09.2010 & 17.01.2011 (Page 19) are quashed. We direct the respondents to treat the (below benchmark) ACRs of un-communicated years to be ignored. A fresh DPC should be held within a month, if required by circulation. The APARs of the applicant which were considered as sufficient to declare her fit for promotion for the year 2009 should be compared with the relevant APARs to be considered for the purpose of 2008 and if found fit, the applicant should be promoted to the grade of PAG (Principal Accountant General) with effect from 29.05.2008 and her seniority over her junior officers should be restored. The decision of the DPC as well as consequential orders regarding her promotion shall be communicated to her within six weeks. No order as to costs.


(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)               Member(A)

H./Km*
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