Dr. Sudarshan Mondal And Ors. vs Union Of India (Uoi) And Ors. on 15 September, 2006

Central Administrative Tribunal – Kolkata
Dr. Sudarshan Mondal And Ors. vs Union Of India (Uoi) And Ors. on 15 September, 2006
Equivalent citations: 2007 (2) SLJ 48 CAT
Bench: B Rao, B A A.R.


ORDER

A.R. Basu, Member (A)

1. Since all these O.As. are similar in nature, they are being taken up together and are being decided by this common order. For the sake of convenience we are taking up O.A. 755/05, the first of all the three O.As., for detailed consideration and reasoning thereof will be applicable to all the three O.As.

2. In O.A. 755/05 the applicant Dr. Sudarshan Mondal has filed an application Under Section 19 of the A.T. Act, 1985 claiming the following reliefs:

(a) An order holding that the denial of promotion as Chief Medical Officer (Non-Functional Selection Grade) and his supersession by his juniors in the matter of such promotion are wholly arbitrary and bad in law.

(b) An order directing the respondents to review the DPC relating to promotions to the post of as Chief Medical Officer (Non-Functional Selection Grade) made under Dynamic Assured Career Progression Scheme in the year 2002 as well as in the year 2005 and to consider the case of the applicant for such promotion and to grant all consequential benefits to the applicant after giving such promotion, from the date when his immediate junior in the selection list were promoted i.e. with effect from 5.4.2002.

(c) An order directing the respondents to consider the representations of the applicant by a speaking and reasoned order and further directing them not to make any further promotion till the disposal of the representations.

(d) An order directing the respondents to produce/cause production of all documents/records relating to the subject matter of the case.

(e) Any other order or further order/orders as this Hon’ble Tribunals may deem fit and proper.

3. The facts of the case in brief are that the applicant was selected by the UPSC in 1986 and was appointed as Medical Officer in Central Health Service and was promoted to the post of CMO in the grade of Rs. 12,000-16,500 w.e.f. 28.8.99. After the acceptance of the 5th CPC, Ministry of Health and Family Welfare issued a circular dated 5.4.02 whereby a Dynamic Assured Career Progression Scheme was introduced by which it was decided that General Duty Medical Officer (GDMO) sub-cadre, Medical Officer in the scale of Rs. 8000-12,500 would be promoted to the post of Sr. Medical Officer in the scale of Rs. 10,000-15,200 on completion of 4 years of regular service; Sr. Medical Officer with 5 years of regular service would be promoted to the post of CMO in the scale of Rs. 12,000-16,500 and after 4 years of completion of service will be promoted to the CMO (non-functional selection grade) in the scale of Rs. 14,300-18,300. By subsequent decision of the Govt., it was decided that on completion of 13 years of regular service of GDMO sub-cadre of CHS, the officer of GDMO would be promoted to CMO (NFSG) in the scale of Rs. 14,300-18,300 without linkage to the vacancies (Annexure-A/1). The applicant has completed more than 13 years of service and was thus eligible for promotion to CMO (NFSG) w.e.f. 5.4.02 when DPC was held. However, he was not promoted w.e.f. 5.4.02 though 666 CMOs were promoted to CMO (NFSG) w.e.f. 5.4.02, many of whom were junior to the applicant. The applicant made a representation to the respondent authorities but his case was not considered. The applicant states that he was on study leave for doing MD from All India Institute of Hygiene and Public Health, Kolkata from 1 st May, 2000 to 30th April, 2003 with the permission of the authorities concerned and passed MD examination with distinction securing 2nd position and thereafter he joined back his department during May, 2003. Despite his representation, no action has been taken for his promotion to CMO (NFSG) w.e.f. 5.4.02. The applicant is further aggrieved that the respondents subsequently promoted 125 more CMOs to the post of CMO (NFSG) with retrospective effect w.e.f. 5.4.02 during the year 2005. Even then the applicant was not promoted as CMO (NFSG) though he was senior to most of the doctors who were promoted. Aggrieved by the action of the respondents the applicant has filed this O.A.

4. The respondents have disputed the claim of the applicant and have submitted a detailed reply denying the contention of the applicant. In the written reply they have stated that the DOPT vide instruction contained in O.M. No. 28O38/l/88-Estt. (T) dated 9.10.89 and 1.2.90 issued certain guidelines for promotion to the post of CMO (NFSG). The said instructions provides that the departmental promotional committee will consider the last 5 years’ ACRs to satisfy itself and if the overall performance of the officer concerned is ‘good’ and he/she has got two ‘very good’ grading in the last 5 years then his/her name may be recommended for placement in the NFSG (Annexure R/2). The applicant in the present O.A. joined CHS on 16.10.87 and thus became eligible for the post of CMO (NFSG) w.e.f. 5.4.02. Even after being considered along with other eligible officers in the meeting of the DPC held in November 2002 and again on 31.3.05 he was not included in the list of promoted officers to the post of CMO (NFSG) as he did not fulfill the prescribed bench-mark for promotion to the said post.

5. The learned Counsel for the applicant, Mr. M.S. Banerjee and Mr. S.K. Dutta have argued that the applicant has never been communicated about any adverse remark during his entire service. Even while he was on study leave he secured the 2nd position in the MD examination and as such his performance, if not “outstanding” should at least be considered as “very good”. Even upto now no adverse communication in his ACR has been received. The Id. Counsel has also argued that if there had been any adverse entry or if there had been “any downgrading in his ACRs, it ought to have been communicated to the applicant and since the same has not been done, the respondents have erred in not promoting the applicant. The Id. Counsel has cited the case of U.P. Jal Nigam and Ors. v. Pmbhat Chandra Jain and Ors. , in support of his contention. The learned Counsel has also referred to the decision of Gauhati Bench of the C.A.T. in O.A. 300/02 decided on 27.7.04 in the case of Dr. Ajay Roy v. Union of India and Ors. The learned Counsel has also argued that in the case of Dr. A Arunava Naskarwho had been graded ‘average’ the remark was communicated to him by the Additional Director and after receiving his representation the Director CGHS reviewed the grading of the said Dr. Arunava Naskar and he was promoted as CMO (NFSG). In this case no average or adverse entry has been communicated to the applicant nor any downgrading in the entry has been communicated to him and as such it is presumed that the applicant was fit to be promoted to the post of CMO (NFSG). The Id. Counsel has also submitted written argument in support of his contention.

6. The learned Counsel for the respondents in O.As. 755/05 and 756/05, Mr. J.M. Bhattacharya has argued that since the applicant was not fulfilling the benchmark provided for promotion to the post CMO (NFSG), as his ACRs were not as per the requirement of benchmark, he was not found fit to be considered for promotion to the post of CMO (NFSG). However, the Id. Counsel for the respondents referred to a letter written on behalf of the Ministry of Health and Family Welfare addressed to the Additional Director, CGHS wherein it has been stated that the matter regarding considering the case of promotion of Dr. Sudarshan Mondal on the basis of “certificates for the period while on study leave” is being examined in consultation with Department of Personnel and Training, Govt. of India.

7. Mr. B. Debnath, learned Counsel appearing on behalf of the respondents in O.A. 1131/05 argued that since the applicant was not fulfilling the benchmark criteria, he was not promoted. He has cited several decisions including the order dated 20.12.02 passed by the High Court of Calcutta in W.P.C.T. No. 772/02 in P.K. Kandelwah. Union of India &Ors. and others decisions of C.A.T., Chandigarh Bench in support of his contention. The Id. Counsel for the respondents, however, argued that since the applicant have not fulfilled the requisite benchmark, he is not eligible for promotion to the post of CMO (NFSG) and as such the O.As. filed by the applicants is liable to be dismissed.

8. The learned Counsel for all the applicants have argued that the applicants be promoted as CMO (NFSG) w.e.f. 5.4.02 except Dr. Nilanjan Chattopadhyay who is to be promoted w.e.f. 5.9.2003.

9. We have heard the learned Counsel for the parties and have gone through the pleadings and the case laws cited.

As per order No. 21/14/97-PC(M)/CHS-V, Govt. of India, Ministry of Health and Family Welfare dated 5th April, 2002, on completion of 13 years of regular service in GDMO sub-cadre of CHS, officer of GDMO sub-cadre will be promoted to CMO (NFSG) Rs. 14,300-18,000. As per order No. A26021/2003-CHS-V, Ministry of Health and Family Welfare, since the post of CMO (NFSG) does not involve duties and responsibilities of greater importance than those attached with the post of CMO, the benefit of FR 22(l)(a)(l) cannot be allowed for fixation of pay on their promotion from CMO to CMO (NFSG). As per the conditions for grant of the benefit under the ACP Scheme, the financial benefit under the scheme shall be granted from the date of completion of the eligibility period under the ACP Scheme or from the date of issue of these instructions whichever is later.

As per instruction contained in O.M. No. 28038/l/88-Estt(T) dated 9.10.89 and 1.2.1990, the DPC will consider last five years’ ACR to satisfy itself as to the overall performance of the officer and if the overall performance is good and the officer has at least two “very good” gradings during the last five years his name is to be recommended for NFSG.

Where promotions are to be made by ‘selection-cum-seniority and ‘Selection by Merit’, the DPC shall for the purpose of determining the number of officers who will be considered from out of those eligible officers in the feeder grade, restrict the field of choice as under reference to the number of clear regular vacancies proposed to be filed in the year (Swamy’s Establishment Manual p. 338). When the promotions are to be made on ‘non-selection’ basis, the DPC need not make a comparative assessment of the records of officers and it should categorize the officers as ‘fit’ or ‘not yet fit’ for promotion on the basis of assessment of the record of service (Swamy’s Establishment Manual p. 847). In the present case, all the officers who fulfill thirteen years of service are eligible for promotion provided they fulfill the bench-mark laid for the purpose.

In the case of Union of India and Ors. v. Lt. General Rajendra Singh Kadyana 2001(1) SLJ 354 (SC) : 2000 SCC (L&S) 797, the Apex Court has held that in deciding whether a post is a selection post or not, one of the criteria to be considered is that if it involves a comparative assessment of officers, necessarily the element of selection is involved. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit,

3. merit-cum-suitability with due regard to seniority.

Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. “Seniority-cum-merit” postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority, as prescribed in the case of promotion to all-India services, necessarily involves assessment of comparative merit of all eligible candidates and selecting the best out of them. The expression ‘fitness’ means that there should not be any adverse entry in the character rolls of the concerned person at least for the last three years and no disciplinary proceedings should be pending against him (Union of India v. Administrator, Delhi Administration and Ors. 1991 Supp. (2) SCC 635). From the perusal of the guidelines to the Selection Committee it appears that non-functional selection grade is akin to non-selection post. As per Swamy’s Establishment and Administration page 847, where the promotions are to be made on ‘non-selection’ basis according to Recruitment Rules, the DPC need not make a comparative assessment of the records of officers and it should categorize the officers as ‘fit’ or ‘not yet fit’ for promotion on the basis of assessment of their record of service. While considering an officer ‘fit’, guidelines in Para. 6.1.4 should be borne is mind. The officers categorized as ‘fit’ should be placed in the panel in the order of their seniority in the grade from which promotions are to be made.

The performance of a public servant in the discharge of his duties is a highly relevant matter while considering his entitlement to certain benefits – particularly those related to career advancement, for example promotion, etc. As such, the system of appraising his performance and recording the same annually is generally in vogue in public services. These records are commonly known as Annaul Confidential Reports or ACRs and are considered in making further promotion and career advancement of the public servants. Objectivity and a dispassionate approach are also considered as essentials in this context. On number of occasions while evaluating the performance of the public servant, entries are given in the ACRs which may be or even are adverse in nature. An adverse remark is a remark which indicates deficiencies of the employee in relation to his performance qua an employee. In Oil & Natural Gas Commission v. Md. S. Iskander Ali (Dr.) , it was held by the Supreme Court that:

The remarks in the assessment roll, merely indicates the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended. These remarks were not intended to cast any stigma.

However, generally an adverse remark needs to be communicated to the employee concerned and an uncommunicated adverse remark cannot, as a general rule be acted upon by the employer to the prejudice of the employee. The rules or administrative instructions generally cast an obligation upon the authorities to communicate the adverse remarks to the employee against whom such remarks have been made to enable him to make a representation.

Even if the rules or administrative instructions are silent on this aspect, the principles of natural justice require such communication. In the leading case of Gurdial Singh Fijji v. State of Punjab, Chandrachud, C.J. explained the legal position in these words:

The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the persons concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.

In the instant case the question arises as to whether the ACRs in respect of the applicants were actually adverse or not or whether they had been communicated to the applicants or not. While doing so we have examined the ACRs of all these applicants as reported by the Reporting Officer and reviewed by the Reviewing Officer and accepted by the Accepting Authority. From file No. A. 32012/3/05 – CHS II it appears that the composition of DPC was as under:

         AS (H)                        -- Chairman
       DGHS/or his nominee           -- Member
       JS (E) Dept. of Per & Trg.    -- Member
       JS (CHS)                      -- Member

 

From the file No. A 32012/6/2002 CHS II, Ministry of Health and Family Welfare, CHS II Section, dated 15.7.02 it reveals that the assessment of the officers on the basis of ACR were made by the office and submitted before the DPC. It is thus clear that no independent assessment was made by the DPC. The assessment that was placed before the DPC was that which was prepared by the office.

The year-wise reports as per ACR and those prepared by office shows the following:

Dr. Sudarshan Mondal:

——————————————————————————-

Year     Reporting Officer     Reviewing Officer     As prepared By office
-------------------------------------------------------------------------------
1995-96        Good                 Good
1996-97        Average             Average
1997-98        Good                Average              Average 
1998-99        Good                 Good                 Good
1999-2000      Good                 Good                 Good
2000-2001 to 2001-2003 - 3 years' CR not available
2003-04        Very Good            Very Good           Very Good
2004-05        Very Good            Very Good
-------------------------------------------------------------------------------

Dr. Nitish Ghosh:
-------------------------------------------------------------------------------
Year       Reporting Officer      Reviewing Officer    As prepared By office
-------------------------------------------------------------------------------
1996-97        Good                   Good
1997-98        Very Good              Good
1998-99        Very Good              Good                Good
1999-2000      Good                   Good                Good
2000-01        Good                   Good                Good
2001-02        Good                   Good                Good
2002-03        Outstanding            Outstanding         Outstanding
2003-04 & 2004-05-CRs are not available in the folder.
-------------------------------------------------------------------------------
Dr. Nilanjan Chattopadhyay:
-------------------------------------------------------------------------------
Year       Reporting Officer       Reviewing Officer   As prepared By office
-------------------------------------------------------------------------------
1996-97        --                      --                  NA
1997-98        Very Good              Very Good          Very Good
1998-99        Good                   Good               Good
1999-2000      Good                   Good               Good
2000-01        Good                   Good               Good
2001-02        Good                   Good               Good
2002-03        Good                   Good
2003-04        Good                   Good
2004-05        Very Good              Very Good
-------------------------------------------------------------------------------
Dr. Biman Bhattacharya:
-------------------------------------------------------------------------------
Year       Reporting Officer       Reviewing Officer   As prepared By office
-------------------------------------------------------------------------------
1996-97      Very Good                 Good               Good
1997-98      Very Good                 Good               Good
1998-99      Very Good                 Good               Good
1999-2000    Good                      Good               Good
2000-01      Very Good                 Very Good          Very Good
2001-02      Very Good                 Very Good
2002-03      Outstanding               Outstanding
2003-04      Outstanding               Outstanding
2004-05      Very Good                 Very Good
-------------------------------------------------------------------------------
Dr. Saumendu Bikash Chowdhury:
-------------------------------------------------------------------------------
Year       Reporting Officer       Reviewing Officer  As prepared By office
-------------------------------------------------------------------------------
1997-98      Very Good                 Good             Very Good
1998-99      Good                      Good             Good
1999-2000    Good                      Good             Good
2000-01      Good                       --              Good
2001-02      Good                      Good             Good
2002-03      Very Good                 Very Good
2003-04      Very Good                 Very Good
2004-05      Outstanding               Outstanding
-------------------------------------------------------------------------------
Dr. Alok Bandyopadhyay:
-------------------------------------------------------------------------------
Year       Reporting Officer       Reviewing Officer    As prepared By office
-------------------------------------------------------------------------------
1996-97       Good                     Good             Good
1997-98       Very Good                Good             Good
1998-99       Very Good                Good             Good
1999-2000     Good                     Good             Good
2000-01       Good                     Good             Good
2001-02       Good                     Good
2002-03       Very Good                Very Good
2003-04       Very Good                Very Good
2004-05       Very Good                Very Good 
-------------------------------------------------------------------------------
Dr. Manas Kumar Sinha:
-------------------------------------------------------------------------------
Year        Reporting Officer       Reviewing Officer   As prepared By office
-------------------------------------------------------------------------------
1997-98      Very Good                 Very Good        Very Good
1998-99      Very Good                 Good             Good
1999-2000    Very Good                 Good             Good
2000-01      Very Good                 Good             Good
2001-02      Very Good                 Good             Good
1.4.02 to 26.8.02
2002-03      Very Good                 Very Good
2003-04      Very Good                 Very Good
1.4.03 to 30.9.03
6.10.03 to 31.3.04
2004-05      Very Good                 Very Good
-------------------------------------------------------------------------------

 

In case Dr. B.R. Majumdar, the year-wise gradings as prepared by the office is as under:
                     1996-97      : Very Good
                    1997-98      : Good
                    1998-99      : Good
                    1999-2000    : Good
                    2000-01      : Good

 

The contention of the respondents is that since these officers did not fulfill the benchmark, they were not considered for promotion. However, it appears that some of the applicants who were ignored, even fulfilled the bench-mark so fixed.

In the case of Gurdial Singh Fijji v. State of Punjab , decided on March 9,1979 it has been held that “Adverse entry cannot be acted upon till opportunity for representation against has been afforded and considered”.

In the case of Dharam Vir Singh Tomar v .Administrator, Delhi Administration and Ors. 1991 Supp. (2) SCC 635, decided on May 7, 1991 it has been held that:

Service Law – Seniority and Promotion – Seniority – Selection grade – Appellant appointed earlier to respondent 5 and satisfying requirement of fitness, held, wrongly denied selection grade granted to respondent 5 instead – That would be so even if he were to be declared surplus, which, on facts, he could not be being senior – Appellant also better qualified – Hence he should be placed in the selection grade w.e.f. the date his junior was placed and granted all monetary benefits within 3 months.

It was also held that the expression, ‘fitness’ means that there should not be any adverse entry in the character rolls of the concerned person at least for the last three years and no disciplinary proceedings should be pending against him.

In the case of Ashwani Kumar Dhawan v. The National Hydro Electric Power Corporation and Ors. 1993(4) SLR 198, decided on 21.4.1993, Punjab and Haryana High Court held that:

Constitution of India, Articles 14 and 16 – Promotion – Appointment as Executive Engineer in National Hydro Electric Power Corporation – Eligible for promotion to the post of Assistant Manager – Not considered for promotion due to average annual confidential reports – Petitioner held to be entitled to promotion since the average reports cannot be considered as adverse.

Similarly in the case of Udai Krishna v. Union of India and Ors. 1996(1) SLJ 464 (CAT-A11) : (1996) 33 ATC 802, Allahabad Bench of Central Administrative Tribunal decided on August 17, 1995, held that:

Confidential Reports – Adverse remarks – Remarks which have potential of adversely affecting an employee’s career, held on facts, are adverse – such remarks have to be communicated to the employee – Grading an employee as “Good” and “Average” when bench-mark for promotion is “Very Good”, held, are adverse remarks which should have been communicated to the applicant.

A classic case often been referred to is the decision of the Apex Court in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. (supra), where it has been held that:

Service Law – Confidential report – Adverse remarks – Downgrading of entry -when can be adverse – Proper course of action in such a case – U.P. Jal Nigam rules providing for communication of adverse entry but not of downgrading of an entry – Even in such circumstances, an extreme variation in gradation such as ‘outstanding’ gradation in one year followed by ‘satisfactory’ in the succeeding year, held may reflect an adverse element compulsorily communicable – Reason for such a change must be recorded in the personal file and the employee must be informed of the change in the form of advise – Otherwise the downgrading cannot be sustained.

In the case of State of Punjab v. V.K. Khanna and Ors. 2001(3) SLJ 402 (SC) : 2001 SCC (L&S) 1010 decided on November 30, 2000, it has been held that
Administrative Law – Natural Justice – Bias – Substance and effect of- Held, bias negates fairness and reasonableness and leads to arbitrariness and malafides -Constitution of India, Article 14.

In the case of Dr. Binoy Gupta v. Union of India and Ors. 2002(3) ATJ 7, decided on 27.8.2002 it has been held by Bombay High Court that
Promotion – Adverse Remarks – Promotion to the post of CCIT – Petitioner was not selected on the basis of downgrading in ACR – downgrading in ACR was not communicated to him – Held it vitiates the DPC proceedings – Direction given to convene a review DPC for reconsideration of applicant’s case by ignoring the ACRs of the Reviewing Officer for the years 1995-96, 1996-97 and 1998-99 and promote him if found suitable.

Similarly in the case of N. D. Joseph v. Union of India and Ors. O.A. 37/91, the Ernakulam Bench of Central Administrative Tribunal has held that uncommunicated adverse remark cannot be based for withholding promotion. In Mitraprasad C. and Ors. v. Union of India and Ors. 1998(3) ATJ CAT 20, Mumbai Bench held on 29.1.1998
Para 6.3.1 of the O.M. dated 10.4.1989 provides that for promotion to Group C, B and A posts upto and excluding the level in the pay scale of a 3500-5000, those who obtained the benchmark of above Good and Good on assessment of the confidential reports were to be included in the panel and in the select list they were to be placed in the order of their seniority in the feeder category without reference to the overall grading obtained by each one of them. Para 6,3,1 of the O.M. dated 10.4.1989 held unconstitutional and quashed.

In contrast to this it has been held by the CAT, Full Bench, Mumbai in the case of Manik Chand v. Union of India and Ors. 2002(3) ATJ 208, decided on 23.7.02 that any remarks/ grading which are not adverse, per se, or not below the bench-mark prescribed for promotion to a particular post in respect of selection post–such remarks/gradings need not be communicated to the official concerned. However, in the said case it has been clarified that it is not necessary to communicate the remarks/gradings which are not below the bench-mark prescribed for promotion to a particular post, but the downgrading of the grading is to be communicated as has been held in the case of U.P. Jal Nigam (supra) and Gurdial Singh Fijji (supra). Thus the decision of the Full Bench in the case of Manik Chand is not applicable in the instant case. In another decision of the Full Bench of CAT, Hyderabad in the case if Sree V. Pallam Raju v. Union of India and Ors. 2000 SLJ 7 (CAT) decided on 10.2.95 it has been held that an average entry in the ACR cannot be considered to be adverse. The entry of ‘average’ contained in the ACR need not be communicated to a Govt. servant and can be looked by the DPC while determining the suitability of a candidate for promotion to a selection as well as non-selection post. The Chandigarh Bench of the CAT in the case of Mrs. M.R. Nath v. Union of India and Ors. decided on 12.5.03 has held that:

(i) One has a right only to be considered for promotion but not to be promoted.

(ii) When Reviewing/Accepting Authority of ACRs change the gradation, they must record the reasons.

(iii) Assessment made by DPC on consideration (sic) ACRs is not a downgrading to be communicated.

(iv) Confidentiality is a hall mark of ACR (sic)

(v) Short fall in bench mark is not to be communicated (sic)

(vi) What matters in selection is comparative merit.

(vii) Scope of judicial review is limited.

In the said decision the scope of U.P. Jal Nigam’s case (supra) has been explained. It has been held that the observations of the Apex Court cannot be applied in a mechanical manner to a case where grading is done by the DPC on the basis of service records. The DPC can make an independent assessment and evaluated after taking into account the totality of performance. Thus if Govt. servant has continuously a good record but does not achieve the bench-mark the DPC does not hold him suitable. If such grading arrived at by the DPC were to be communicated to a Govt. servant perhaps no purpose would be served except bringing it to the knowledge of the concerned person all the entries of all the five ACRs, which are considered by DPC, if they are treated as adverse, even though they may not be adverse in the strict sense. Infact, what flows from the U.P. Jal Nigam’s case is if there is any variation or change i.e. whether there is a short fall or downgrading made by the Reviewing Officer or by the Accepting Officer, in that event, communication may be necessary. In the present case after having gone through the annual confidential roll of the applicant, we find that the Reviewing and the Accepting Officers have in all the years accepted and concurred that the gradation of the applicant made by the Reporting Officer. In the instant case, i.e. O.A. 755 of 2005 we find that grading has not been done by the DPC but by the office and adverse and downgrading of remarks in ACRs have not been communicated and therefore the decision of the Chandigarh Bench is not applicable in the instant case.

In W.P.C.T. No. 772/02 it has been considered at length the difference between “selection on merit and selection by merit” and the Calcutta High Court set aside the orders of the CAT, Calcutta Bench in O. As. 290/01 and 299/01. Similarly in a decision of the CAT, Calcutta Bench in P.K. Khandelwal v. Union of India and Ors. no direction has been given to the respondents to consider the applicant’s case since the applicant had retired and could not be promoted actually. However, it was left to the applicant to agitate the question of his promotion on notional basis before the appropriate forum. Similarly orders in O.A. 1466/ 01 and O.A. 40/02 of CAT, Calcutta Bench are distinguishable as in that case also the applicants were superseded by the juniors on the basis of the gradations awarded by the DPC.

The next important aspect is the scope of judicial review in the matter of promotion on the ground of gradations in the ACRs.

In Durga Devi and Anr. v. State of H.P. and Ors. , the Apex Court has held that:

Power to judge comparative merits of candidates and fitness for post- is function of duly constituted Selection Committee – Tribunal cannot sit as an Appellate Court and quash selection by itself scrutinizing comparative merits of candidates.

Similarly in the case of Dalpat Abasaheb Solunke v. B.S. Mahajan , it has been held that decision on comparative merits of candidate by the Selection Committee cannot be interfered with by the Court. In the case of Dr. Jai Narain Misra v. State of Bihar and Ors. 1971 (1) SCC 30, it has been held that the High Court was not justified in going into the question of seniority. For discharging the responsibility, it was open to the Government to seek the assistance of the Public Service Commission. It was also held that the High Court was also not right in opining that the recommendation made by the Commission was not in accordance with the rules. However, in the case of State of Madhya Pradesh v. Srikant Chaphekar 1992(3) SLJ 73 (SC) : 1992(5) SLR 635, the Apex Court held that in case of non-consideration of promotion, Courts/Tribunal cannot order for promotion but can give directions for reconsideration of the case in accordance with law. In the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. , the extent of judicial review has been explained by the Apex Court. It has been held that judicial review of the order is open only on grounds of malafides, arbitrariness and perversity. Thus the Tribunal is competent to intervene if the allegation of malafide and arbitrariness is proved.

10. In the present case the question is whether the gradations given to the applicant were adverse in nature and whether they were to be communicated to the applicant and as to whether the applicant can be said to have been prejudiced by non-communication of those adverse remarks. The administrative instructions generally cast an obligation upon the authorities to communicate the adverse remarks to the employee against whom such remarks have been made to enable him to make a representation. Even if the rules or administrative instructions are silent on this aspect, the principles of natural justice require such communication. This aspect has been explained at length in the case of Gurdial Singh Fijji (supra). In the instant case, we find that on a number of occasions the downgrading has been done by the Reviewing Officer by downgrading the remarks from “Good” to “Average” and even that “Average” has not been communicated to the applicant. The learned Counsel for the applicant has argued that in the case of Dr. Arunava Naskar, CMO, the “Average” grading had been communicated by the Additional Director and after considering the representation the gradings were revised and he was promoted as CMO (NFSG) w.e.f. 5.4.02. In the same DPC held on 2002, the applicant also was downgraded to “Average” but in his case this remark was never communicated. Thus the plea of discrimination against the applicant seems to the correct.

11. The next important point worth consideration is that the applicant was on study leave during the period and it has been argued by the Id. Counsel that he stood 2nd in the MD Examination. Since during the training period the main function was pertaining to study only and when he secured 2nd position, which aspect has not been controverted by the respondents, we are inclined to accept the submission made by the Id. Counsel for the applicant that if not ‘Outstanding’ he could not be rated below ‘Very Good’. In the case of Dharam Vir (supra) it has been held that the applicant was better qualified and hence he should be placed w.e.f. the date his juniors were promoted and be granted all monetary benefits within 3 months. From the copy of the letter submitted by the Id. Counsel for the applicant along with the written reply, from Director, CHS addressed to Addl. Director, Calcutta that the ACRs of Dr. Sudarshan Mondal when he was under study leave are not acceptable. It is a peculiar situation as the applicant was ignored on the ground of non-acceptable ACRs for which the blame cannot be attributed to the applicant. In the case of U.P. Jal Nigam (supra) it has been clarified that “all that is required by the authority regarding confidentiality in the situation is to record reasons for such downgrading on the personal files of the officer concerned and inform him of the change in the form of an advice. In the instant case we have seen the service report of the respondents. No reason for change is mentioned. Downgrading is reflected by comparison. This cannot be sustained”. Same is the position in the instant case. Neither the downgrading has been intimated nor the average entry has been communicated. Thus the decision of the respondents for non-consideration for promotion of the applicant due to uncommunicated ACR cannot sustain. Similar view has been taken in the State of Punjab and Haryana in the case of Ashwini (supra) where also it has been held that the petitioner is entitled to promotion. In the case of Udai Krishna (supra) it has been held that remarks which have potential of adversely affecting the employee’s career held on facts are adverse. Such remarks are to be communicated to the employee. Grading an employee as ‘Good’ and ‘Average’ when bench-mark for promotion is ‘Very Good’ was held as adverse remarks which should have been communicated to the applicant and as such the applicant deserved promotion. The Govt. of India instruction nowhere provides for unacceptable ACRs.

12. We are further fortified by a recent decision of the Calcutta High Court in Writ Petition No. 14754/03 and Writ Petition No. 2873/05 (Dr. Japan Sinha v. Damodar Valley Corporation) decided on June 30, 2006. In the said decision it has been held that the contention of the respondents that since ‘good’ being not an adverse remark there was no occasion for the respondents to communicate the same. It was however, held by the High Court that on consideration of the facts ‘good’ is misnomer. The dictionary meaning of ‘good’ might be ‘all well’ however, considering the service rules of the respondents DVC, it was below the bench-mark for being considered for promotion. Hence all such gradings and/or remarks should have been communicated to the petitioner contemporaneously. Moreover, it has also been held by that on perusal of the records of the promotional process annexed to the affidavit it appears that apart from the writ petitioner other eligible candidates were having only MBBS degree while the petitioner was having a Post Graduate degree. He was having a good track record. His integrity was beyond doubt and his performance as anesthetist was quite good. The personal administration and financial administration was good. His dealing with the employees and public at general was good. Even then he was not considered for promotion despite being better qualified because of caution of the secretary which in my view has no basis whatsoever. Promotion is not a matter of right. However, all candidates eligible for the promotional post must be dealt with properly. The contention of the respondents that since the applicant did not possess ‘very good’ he could not come within the zone of consideration. If there is any such rule, such rule is contrary to the principles of natural justice as any grading below ‘very good’ was not communicated to the concerned persons who were kept out of the purview of promotion because of such remark. Once the authority decides a particular grading to be the benchmark for promotion, all other gradings below such bench-mark must be considered as adverse for purpose of promotional avenue and must be communicated to the concerned employee so that he can place his view to the authority as well as he can improve his performance in the next year.

13. From the above discussion, it is obvious that the decision of the respondents seems to be biased, prejudiced and perverse and as such the judicial scrutiny of the administrative action have become necessary. In case of some of the applicants, they ought to have been promoted on the basis of the gradings given in the ACRs. It is a fact, as revealed from the record cited above, no independent grading had been done by the DPC but the grading prepared by the office was considered instead, without consulting the ACRs, Moreover, adverse entries as discussed above have not been communicated to the applicant in O. A. No. 755/05 though in respect of one another officer the same had been done and after considering his representation the said officer was promoted. This action of the respondents is discriminatory and violative of the Constitutional provision. Moreover, the applicant in O.A. 755/05 being better qualified than his juniors had been overlooked in promotion. The downgrading of the gradings in the ACRs has also not been communicated to the applicant. In such a situation we find that the entire DPC proceeding is vitiated with irregularities. However, as many of the officers who have been promoted w.e.f. 5.4.2002 are already in position for last four years or so, we do not think it proper to unsettle the settled matters by quashing the entire proceeding. The respondents are therefore directed to hold a review DPC within one month from the date of receipt of this order and consider the case of all the applicants for promotion w.e.f. 5.4.2002 the date on which their immediate juniors were promoted except Dr. Nilanjan Chattopadhyay who is to be given the benefit w.e.f. 5.9.2003 and give all the consequential benefits to the applicants w.e.f. that date i.e. 5.4.2002 and 5.9.2003 respectively.

14. We also except the respondents to consider various observations made by us in this order as direction and follow them meticulously in all future promotion so as to avoid unnecessary litigation. With said directions the O.A. is disposed of. No order as to costs.

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