CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.592/2009 MA No.606/2009 New Delhi, this the 5th day of August, 2009 HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Shri Sanjay Kumar, Additional Commissioner of Income Tax, Delhi Y-21, Hudco Place, Andrews Ganj, New Delhi-110049 Applicant (By Advocate: Sh. P.P. Khurana, Senior counsel with Sh. Birender Singh) Versus 1. Union of India through The Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training 2. Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. 3. Union Public Service Commission, Through its Chairman, Shahjahan Road, New Delhi. Respondents (By Advocate: Shri V.P. Uppal and Ms. Alka Sharma) ORDER
Mr. L.K. Joshi, Vice Chairman(A):
The Departmental Promotion Committee (DPC) which met on 23.01.2009 for considering promotions for seven vacancies in the grade of Commissioner of Income Tax (CIT) for the vacancy year 2008-09 assessed the Applicant unfit. This consideration for promotion was based on the ACRs for five years from the year 2002-03 to 2006-07 in respect of all eligible officers in the feeder grade of Additional Commissioner of Income Tax (ACIT). The Applicants grievance arises from the fact that he has been considered unfit on the basis that ACR for the year 2002-03 had graded him as only Good whereas the benchmark for consideration was Very Good and the grading `Good was not communicated to him. The Applicant seeks holding of review DPC for the DPC, which was held on 23.01.2009 and consider him for promotion.
2. The Applicant belongs to 1988 batch of Indian Revenue Service (Income Tax). At the relevant time, he was working as ACIT at Delhi and has been serving in this grade since the year 2001. The Applicant was in the zone of consideration for promotion to the post of CIT in respect of the vacancies for the year 2008-09.
3. In the guidelines for the conduct of the meetings of the DPCs, the Department of Personnel and Training (DoP&T) had earlier prescribed that four out of five gradings in the ACRs to be considered by the DPC should meet the benchmark of Very Good. The DoP&T changed these guidelines by OM dated 18.02.2008 to make the benchmark of Very Good applicable to the ACRs of five years under consideration. The Applicant has, inter alia, challenged the application of DoP&T OM of 18.02.2008 to the vacancies of the year 2008-09. However, this has not been pressed during the course of arguments and we are not considering this challenge to the OM of DoP&T of 18.02.2008.
4. The learned senior counsel for the Applicant has urged that the grading of the Applicant in the ACR for the year 2002-03 was Good. Thereafter the grading for the year 2003-04 is Very Good. Thereafter for three years from 2004-05 to 2006-07 the gradings have been Outstanding. The genesis of the Applicants grievance is that during the financial year 2002-03, he had worked under three different reporting officers for four months each. The period of working under different officers, the reporting and reviewing officers concerned have been mentioned in paragraph (xiv) as follows:
Period Reporting Officer Reviewing Officer 01-04-2002 to 31-07-2002 Mr. R.J. Singh, CIT-Delhi XI New Delhi Mrs. K.K. Bhatia, CCIT-Delhi XI New Delhi 01-08-2002 to 26-11-2002 Delhi IV New Delhi CCIT-Delhi IV New Delhi 26-11-2002 to 31-01-2003 Mr. V.K. Bhatia, DIT (Research) New Delhi Mr. S.N. Shukla, DGIT (Research) New Delhi
5. The Applicants ACR was recorded only for the period 26.11.2002 to 31.01.2003. For rest of the eight months, four months each under different reporting/reviewing officers, the ACR was neither initiated by the reporting officers nor reviewed by the reviewing officers. Thus the `Good grading given in the year 2002-03 on the basis of the ACR written only for part of the year for four months has resulted in serious miscarriage of justice to the Applicant, more so when for the remaining four years the Applicant has been graded `Very Good for one year and `Outstanding for the remaining subsequent years.
6. It has been urged that the Applicant had written his self-appraisal in the ACR form for the year 2002-03 for the whole year and had clearly mentioned that he had worked under three different reporting officers in the form itself. It has been pointed out that as per the Office Memorandum No.21011/1/2006-Estt.(A) dated 16.01.2006, the responsibility for obtaining Confidential Reports in such cases, where reports have to be written by more than one reporting officer, would be that of the Head of the Department or Head of Office [Swamys Complete Manual on Establishment and Administration, Swamy Publishers (P) Ltd., Eleventh Edition of 2008, page 830]. It is also mandated by the DoP&Ts OM No.35014/4/83-Estt.(A), dated 23.09.1985 that a reporting officer should not wait till the expiry of the time-limit for self-appraisal of the officer to be reported upon. If the self-appraisal is not received in time, the reporting officer should take it upon himself to remind the officer to be reported upon in writing, asking him to submit the self-appraisal by the stipulated date. If the self-appraisal is not received by the stipulated date, the reporting officer should proceed to write the report on the basis of his experience of the work and conduct of the officer reported upon [pages 856-858 ibid]. The argument is that the Respondents were bound to ensure that ACRs for the whole year in 2002-03 should have been recorded by three reporting officers. The learned senior Advocate would contend that the instructions are silent as to whether a report written for part of the year by one reporting officer can be treated as report for the full year, even though the period, which has been reported upon is only one-third of the whole year. It is contended that since there is ambiguity on this aspect or in a situation where it is possible to take two views, the construction beneficial to the citizen should be taken. Reliance has been placed on the judgement of the Honourable High Court of Madras in Advani Oerlikon Ltd. Vs. Assistant Collector of Central Excise, 1993 (63) E.L.T. 427 (Mad.).
7. It is further contended that the grading `Good was not conveyed to the Applicant even though the benchmark has been laid down to be `Very Good for all the five years under consideration. Any grading, which is below the benchmark would be an adverse grading because it can have adverse civil consequences for an employee as per the instructions contained in DoP&Ts OM dated 11.05.1990 (Annex A-14). The adverse remarks in ACRs of the officers concerned should be communicated to them and in case adverse remarks are not communicated, the DPC may ignore the remarks while making the assessment. Attention has also been drawn to OM No.21011/1/77-Estt., dated 30.01.1978, which states that all adverse entries in the ACRs of the government servant should be communicated in writing within one month of their being recorded and a record to that effect should be kept in the ACR dossiers of the government servant concerned [page 839 of Swamys Complete Manual on Establishment and Administration]. The grading `Good being adverse, should have been communicated to the Applicant. As regards the gradings below the benchmark being adverse, reliance has been placed on the judgments of the Honourable Supreme Court in Dev Dutt Vs. Union of India and others, (2008) 8 SCC 725 and Abhijit Ghosh Dastidar Vs. Union of India and others, Civil Appeal No.26556/2004, decided on 22.10.2008. Reliance has also been placed on the order dated 7.10.2005 in OA No.37/2004, Gauri Shankar Mittal Vs. Union of India and others, upheld by the Honourable Guwahati High Court and SLP against which has been dismissed, Dr. Binay Gupta Vs. Union of India and others, judgment of Honourable Bombay High Court in Writ Petition No.3641/2002 decided on 27.08.2002, order of the Madras Bench of the Tribunal in Mrs. Indira Krishnakumar Vs. Union of India and others in OA No.431/2008 decided on 29.10.2008, order of Allahabad Bench of the Tribunal in A.K. Goel Vs. Union of India and another in OA No.587/1997 decided on 24.05.2004 as upheld by the Honourable Delhi High Court by judgement dated 18.07.2008 in W.P. (C) No.18706/2005, J.S. Garg Vs. Union of India and others, 2002 VIII AD (DELHI) 809 decided on 16.08.2002 and R.K. Anand Vs. Government of India and others, OA No.1936/2001 decided on 12.11.2001, upheld by the High Court and SLP dismissed by the Supreme Court.
8. The case is contested. The second Respondent, i.e., Department of Revenue in the Ministry of Finance has contested the OA on the ground that the Tribunal should not interfere in the assessment of the DPC. Reliance has been placed by the second Respondent on the judgement of the Honourable Supreme Court in K.M. Mishra Vs. Central Bank of India and others, (2008) 9 SCC 120, in which it was held that it would not be necessary compulsorily to communicate remarks like `Good or `Very Good to the government servant. The third Respondent, i.e., the UPSC has contended that the meeting of the DPC was conducted as per the guidelines dated 10.04.1989 issued by the DoP&T. It is further contended in the counter reply that the communication of gradings is purely an administrative matter to be decided by the Union Government through the concerned administrative ministries or departments. The DPC has no role to play in such matters. Citing the judgement of the Honourable Supreme Court in Anil Katiyar Vs. Union of India and others, (1997) 1 SCC 280, the Respondent would urge that the Tribunal is not expected to play the role of an appellate authority or an umpire in the proceedings of the DPC and it could not sit in the judgment over the selection made by the DPC.
9. We have carefully gone through the record placed before us as also the ACRs of the Applicant. The gradings of the Applicant and the remarks of the reporting and reviewing officers are as follows:
Remarks Reporting Officer Reviewing Officer
1. 2002-03 (26.11.2002-31.03.2003 only) Good Good
2. 1.04.2003-31.03.2004 Very Good Very Good
3. 1.04.2004-31.12.2004 Outstanding Outstanding
4. 1.01.2005-31.03.2005 Outstanding Not reviewed
5. 1.04.2005-31.03.2006 Outstanding Outstanding
6. 1.04.2006-31.03.2007 Outstanding Outstanding
10. In Dev Dutt (supra), the Honourable Supreme Court considered an identical case in which the petitioner before it had not been considered fit for promotion on the ground that he had one `Good entry in the ACRs against the benchmark of `Very Good for five years. The Supreme Court considered that `Good entry is an adverse entry because it has adverse implications for the Applicant. The relevant observations are reproduced below:
10. 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. xxxx xxxx xxxx 25. In the present case, the action of the respondents in not communicating the 'good' entry for the year 1993-94 to the appellant is in our opinion arbitrary and violative of natural justice, because in substance the 'good' entry operates as an adverse entry (for the reason given above). The Honourable Supreme Court further held in paragraph 40 that the representation against the entry should be considered by an authority higher than the one who gave the entry. The Respondents relied on K.M. Mishra (surpa) as the aforesaid judgment of the Honourable Supreme Court was later than the judgement in Dev Dutt (supra). However, subsequently in Abhijit Ghosh Dastidar (supra), the Honourable Supreme Court reiterated in a judgement by three Honourable Judges that the entry `Good, if the benchmark is `Very Good, is an adverse entry. It was further held that:
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.
11. In fact in Union of India and others Vs. Dr. B.V. Prasad Reddy and another, Writ Petition No.2344/2004, decided on 13.09.2004, the Honourable High Court of Bombay had held in the case where the entries in the ACR of the petitioner had been downgraded from `Very Good to `Good for the years 1998-99 and 1999-2000, in paragraph 4 of the judgement thus:
4. A down grading of entry in such circumstances would result in an officer not meeting the benchmark requirement for the particular year and ought, in the circumstances, to have been communicated. Admittedly, no communication was made and the principles of natural justice were not complied with. In the meantime, the persons who reviewed the grading of the First Respondent below the benchmark have ceased to be in service. Hence, the Tribunal observed that there is now no occasion to review the grading of the first Respondent below the benchmark once again. The SLP against this judgement was dismissed by the Honourable Supreme Court by order dated 20.01.2005 in Special Leave to Appeal (Civil) No.556/2005.
12. In Gauri Shankar Mittal (supra), in a similar case, the Tribunal took a view that uncommunicated downgrading should be ignored. This order was also upheld by the Honourable Guwahati High Court in W.P. (C) No.3082/2006 and the SLP was dismissed on 2.03.2007 by the Honourable Supreme Court in Special Leave to Appeal (Civil) No.1836/2007. In another case of downgrading, the Honourable Bombay High Court in Dr. Binay Gupta (supra) directed that a review DPC should be held to reconsider the case of the petitioner ignoring the ACRs where the entry had been downgraded by the reviewing officer.
13. In Indira Krishnakumar, the Applicant did not have the required number of benchmark grading of `Very Good. She had `Very Good for four years and `Good for one year in the five years from 2002-03 to 2006-07. In this case the Tribunal held that in view of the non-communication of `Good ACR to the Applicant, which was considered as adverse, the Respondent should convene a review DPC and consider the case of the Applicant for promotion without taking into account the entry made in the year 2004-05, which was `Good entry. Similar view was taken by the Tribunal in A.K. Goel (supra), which was upheld by the Honourable Delhi High Court in W.P. (C) No.18706/2005 in a judgement dated 18.07.2008.
14. In J.S. Garg (supra), a Bench of three Honourable Judges of Delhi High Court held thus in a similar case:
14. It is now trite that a bad record, if not communicated, the effect thereof would be that the same cannot be taken into consideration by the appropriate authority.
15. In R.K. Anand (supra) also in a case, which is of a piece with the case in hand, the Tribunal directed the Respondents to convene a review DPC for considering the Applicants case for promotion to Senior Administrative Grade by ignoring the ACRs in which he was graded as `Good when such ACRs were not communicated to the Applicant. This was upheld by the Honourable Delhi High Court in C.W.P. No.1386/2002 and the Civil Appeal No.7061/2002 was dismissed by the Honourable Supreme Court by order dated 27.11.2008 in view of its decision in Dev Dutt (supra).
16. We have already considered the Respondents argument regarding the Honourable Supreme Courts observations in K.M. Mishra (supra). Clearly in view of the judgement in Abhijit Ghosh Dastidar (supra), the judgement in K.M. Mishra (supra) will not hold the field. The law as settled by the Honourable Supreme Court now is that a grading below the benchmark grading would be considered adverse and must be communicated to the government servant. We are also not in agreement with the Respondents that the Tribunal cannot interfere with the assessment of the DPC, if that assessment is based on a grading in the ACR, which is adverse, being below the benchmark. Anil Katiyar (supra) is distinguishable from the OA in hand in view of the fact that in the above case, the Tribunal had observed that `Outstanding grading given to the applicant did not flow from various parameters given and the reports entered therein. The Honourable Supreme Court observed that the Tribunal has rightly proceeded on the basis that it is not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the DPC. The DPC has graded the Applicant on the basis of an ACR, in the present OA, which is adverse and has not been communicated to the Applicant, which was not the case in Anil Katiyar (supra). The third Respondent, i.e., the UPSC is also not right in observing that it is for the administrative ministries/departments to communicate adverse gradings and the DPC would not be considered with this. In our considered opinion, the DPC must, before undertaking the task of considering a government servant for promotion, enquire whether adverse gradings have been communicated to the government servant or not. If the adverse gradings have not been communicated, then those gradings should be ignored.
17. The second Respondent, i.e., Department of Revenue in the Ministry of Finance has also been remiss in ensuring that the Applicant is reported upon for the full year 2002-03 instead of being reported upon only for four months from 26-11-2002 to 31-03-2003. As we have seen from the directions in various OMs of the DoP&T, it is the responsibility of the administrative ministry/ department/ office to ensure that the ACRs of the government servants are written for the whole year except for the period in which he or she has worked for less than three months under a reporting officer. In the present case, the Applicant has mentioned in his self-appraisal that he has worked under three reporting officers in the year 2002-03. The action of the Respondents in not getting the reports recorded for eight months by two reporting officers in spite of such clear mention by the Applicant is unfair and against the principles of natural justice. In fact, it was not necessary for the Applicant to have even mentioned this fact because the onus was on the reporting officers and the administration of the office in which the Applicant worked to get the reports initiated even if his self-appraisal had not been received. In view of this fact and especially considering that the Applicants subsequent record is `Very Good/ `Outstanding, we are of the view that the ACRs only for four months, when it should have been written for the entire year by three reporting officers, should not be considered. In Advani Oerlikon (supra), while considering the principles of interpretation of Rules, the Honourable Supreme Court observed that:
when a provision is ambiguous or is capable of two meanings, the construction beneficial to the citizen should be adopted.
18. We find that there is nothing in the Rules or instructions by the DoP&T about a situation when ACR for only one-third of the period for which the Applicant has worked has been recorded and the blame for which entirely lies on the authorities responsible for writing the ACRs, how such an ACR should be considered. It is a case in which it would have been quite possible theoretically that Applicant might have received `Very Good or `Outstanding gradings form the other two reporting officers. The overall grading then would have been `Very Good. Reverse also could be true. However, when those reports have not been recorded and because the administrative authorities have been found wanting, then it would be extremely unfair to treat a solitary grading for four months as representing the grading for the whole year, especially in the context that the Applicants subsequent performance has been `Very Good/ `Outstanding. This would, in our considered opinion, be another reason for holding that the grading `Good for the year 2002-03 should be completely ignored by the DPC. In addition to the fact that the `Good grading being adverse has not been communicated to the Applicant as provided by the instructions on this subject and as held by the Honourable Supreme Court/ High Court and the Tribunal in the judgements cited above, it is also not disputed that the reporting officers for eights months for which the ACR was not recorded and all the reviewing officers have retired on superannuation. It would, therefore, be meaningless to communicate the adverse ACR of the year 2002-03 to the Applicant now and on this count also, the ACR has to be ignored.
19. The instructions for the DPC are that the DPC should consider the ACR for equal number of years in respect of officers considered for promotion. It is further provided that the DPC should consider ACRs for five preceding years. In case where one or more ACRs have not been written for any reason during the relevant year, the DPC has been instructed to consider the ACR preceding the year in question [page 875-876 of Swamys Complete Manual on Establishment and Administration (ibid)]. We have looked the Applicants ACRs for the year 2001-02. The reporting officer has recorded `Very Good grading whereas the reviewing officer has downgraded it to `Good. This downgrading has also not been communicated to the Applicant. This grading has been given in the year 2003 and six years have elapsed since then. It would not make any sense to now communicate this downgraded ACR to the Applicant and seek his representation and then a decision of the competent authority to be taken because of lapse of more than six years. We, therefore, direct that DPC should, under these facts and circumstances of the case consider the Applicants ACR for the period 2000-2001.
20. On the basis of above discussions, the OA is allowed. The Respondents are directed to convene a meeting of the review DPC, which will not consider the ACR for the year 2002-03 and instead consider the ACR for the year 2000-01. The Applicant would be considered for promotion on the basis of ACRs from 2000-01 and from 2003-04 to 2006-07. If the Applicant is recommended for promotion by the DPC, he would be promoted notionally from the date when his immediate junior was promoted. He would not be eligible for arrears of back wages. The aforesaid directions should be complied with within three months from the date of receipt of a certified copy of this order. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/