Avinash Dikshit vs Union Of India & Ors

Manmohan, J

CM Appl. 1782/2021 (for exemption)

Allowed, subject to all just exceptions.

Accordingly, present application stands disposed of.

WP(C) 719/2021 & CM Appl. 1781/2021

Present writ petition has been filed challenging the order dated 21st October, 2020 passed by Central Administrative Tribunal [CAT] as well as the

revised seniority list dated 28th July, 2020 issued by respondent No.3.

BRIEF FACTS

Briefly stated, the facts of the present case are that the petitioner was ranked No.5 in the original merit list of 1986 Batch of Indian Defence

Accounts Service (IDAS), whereas respondent No.5 was ranked No.1. During promotion to Junior Administrative Grade (JAG) in the year 1995, a

new list was formed on the basis of Annual Confidential Reports [ACR] grading for the years, 1990-91 to 1994-95 whereby petitioner was granted

seniority as the respondent No.5’s ACR gradings for the years 1991-92, 1992-93 and 1993-94 were ‘very good’ and the petitioner’s

gradings were ‘outstanding’.

Subsequently, in the year 2009, respondent No. 5 made a representation to the Controller General of Defence Accounts [CGDA], respondent No. 6

herein, that her ACRs for the years 1991-92 to 1993-94 should be upgraded and the said representation was accepted vide order dated 30th

November, 2009.

Thereafter, respondent No. 5 filed O.A. No. 749/2012 before the CAT seeking a direction to hold a review Departmental Promotion Committee

(DPC) for the promotion held in the year 1995 and restoring of her seniority. The said O.A. was allowed and confirmed by the learned predecessor

Division Bench of this Court in WP(C) 5453/2013, Union of India vs. Rasika Chaube.

Accordingly, a review DPC was held. However, the said Review DPC ignored the fact that the CGDA had overruled the remarks/downgrading for

the years 1991-92 to 1993-94 and that both the CAT and this Court had treated such downgrading by the Reviewing Officer as non-est. As a result,

the Review DPC in its proceedings of 16th May 2014 did not recommend any change in seniority.

The aforesaid decision of the review DPC was challenged by respondent no. 5 before the CAT in O.A. 3345/2015, which was allowed and again

confirmed by another learned predecessor Divison Bench of this Court in Union Public Service Commission vs. Rasika Chaube & Ors., WP(C)

9694/2017.

Consequently, in compliance with the aforesaid orders of the CAT and this Court, another review DPC was held on 10th June, 2020, wherein the

seniority list was revised and the impugned seniority list was issued whereby the seniority of the officers was restored in accordance with the rankings

assigned by the UPSC at the stage of induction i.e. Respondent No. 5 was restored at Serial No.1 and petitioner was at Serial No. 5.

The impugned seniority list as well as the order dated 30th November, 2009 passed by the CGDA were challenged before the CAT by the

petitioner vide O.A. No. 100/1603/2020. The CAT dismissed the said O.A. vide the impugned order dated 21st October, 2020.

ARGUMENTS ON BEHALF OF PETITIONER

Learned counsel for the petitioner stated that the impugned judgment and the seniority list dated 28th July, 2020 were unsustainable in law inasmuch

as the representation made by respondent No.5 against her ACR gradings were considered by an authority that had no jurisdiction. According to him,

the CGDA was not vested with authority to decide the representation, as the Financial Advisor (Defence Services) [FA(DS)] was the Competent

Authority to entertain and consider representations against ACR of STS level officers from 12th January, 1998.

He further stated that on 30th November, 2009, within ten days of the representation having been made by respondent No.5, the then CGDA, the

respondent No. 6 herein, accepted the representation, without following the due procedure of calling for the comments of the respective Reporting,

Reviewing and Accepting Officers.

He also stated that respondent No.5, on 19th November, 2009, at a very belated stage after fourteen years, had made a representation for the first

time to the effect that her ACRs for the years 1991-92, 1992-93 and 1993-94 should be upgraded as “Outstanding†from “Very Goodâ€. He

pointed out that the Petitioner and other officers had no knowledge or intimation of such representation. He emphasized that respondent No.5 had

made a representation fourteen years after JAG promotion, eight years after JAG (NFSG) and three years after SAG promotion and therefore, it was

belated and could not have been used as a means to disrupt the settled seniority. Therefore, he contended that the impugned order confirmed the

revision in seniority after a lapse of twenty-five years during which the parties had been given four promotions. He submitted that in matters where

seniority and promotion had been settled due to passage of time, particularly after no challenge, the same should not have been unsettled. In support of

his submission, he had relied upon the judgment of the Supreme Court in Ramachandra Shanker Deodhar & others v. State of Maharashtra & others

AIR 1974 SC 25.

COURT’S REASONING

Upon a perusal of the paper book this Court finds that the ACR gradings of the respondent no.5 had not been communicated to her because

downgradings from ‘outstanding’ to ‘very good’ were not considered an adverse remark under the OM dated 10th April, 1989 issued by

the Department of Personnel and Training. Further, respondent No.5 came to know of the downgraded ACRs only when she made an application

under the Right to Information Act, 2005 in the year 2009. As the respondent no.5 made a representation to competent authority in 2009 itself, this

Court is of the view that there was no delay on her part in making a representation for upgradation of her ACRs.

Also upon upgradation of her ACRs, respondent no.5 was reinstated to her original rank only. Consequently, this Court is of the view that the CAT

was right in holding that not a single promotion was disturbed and the petitioner was only restored to his original rank.

In fact this Court finds that the issues raised in the present case are no longer res integra as they have been considered in detail by a coordinate

Bench of this Court in judgment dated 05th November, 2019 in Union Public Service Commission vs. Rasika Chaube & Ors., WP(C) 9694/2017

whereby the Court dismissed UPSC’s petition challenging the order of the CAT directing holding a fresh DPC to consider respondent no.5’s

case for promotion after the ACR’s for the relevant period had been upgraded. The relevant portion of the learned predecessor Division Bench

judgment dated 05th November, 2019 is reproduced hereinbelow:-

“....5. The impact of the ‘very good’ grading was that Respondent No.1(Respondent no.5 herein) lost her seniority from the No.1

position in the batch to No.5. Respondent No.1 was unable to access her ACRs. It is only through an application under the Right to

Information Act, 2005 (‘RTI Act’) made in 2009, that Respondent No.1 was given access to her ACRs for 1990-91 to 1994-95.

According to Respondent No.1, she noticed irregularities committed by the Reviewing Officer in downgrading the ‘outstanding’

grading given by two different Reporting Officers, to ‘very good’ in the three ACRs from 1991-92 to 1993-94, without assigning any

reasons. As regards the ACR for 1994-95, there was a procedural lacuna, as the ACR was written without following the laid down

procedure.

Respondent No.1 filed a representation dated 19th November, 2009 before the Controller General of Defence Accounts (‘CGDA’),

i.e. the Competent Authority (‘CA’) against the downgrading in her ACRs from 1991-92 to 1994-95. The CA passed an order on 30th

November 2009 as under:

“The downgrading of ‘Outstanding’ gradings given by the reporting officer (s) all through these years have been undertaken by

the same reviewing officer (Shri A.K. Lal) without assigning any reasons. Therefore, the remarks/grading of the review/accepting

authorities in these CRs may be treated as non est and the grading given by the reporting officer (s) as ‘Outstanding’ shall prevail.â€​

xxxx xxxx xxxx

In its judgment dated 3rd January 2013, the CAT held that the supersession of Respondent No.1 by her juniors was in violation of the

principles of natural justice. Further, the ‘very good’ grading in her ACRs for the aforementioned three years i.e. 1991-92, 1992-93

and 1993-94 was ‘non est’ and yet the DoPT was not ready to accept the expunction and the upgrading by the CA....

xxxx xxxx xxxx

While the general proposition in the aforementioned decisions that the question of assessment of candidates by a selection committee on

an overall view of the ACRs should not be interfered with by a Court is unexceptionable, in the present case the issue is distinctly different.

It appears to the Court that the Second Review DPC misconstrued the scope of its exercise as a result of the orders of the CA, which had

been upheld both by the CAT by its order dated 3rd January 2013 and by this Court by its judgment dated 5th September 2013, both of

which had attained finality. Although the First Review DPC characterised the decision of the CA to restore the “outstanding†grading

of the Respondent No.1 for 1991-92, 1992- 93 and 1993-94 as a „non speaking order‟ i.e. an order without reasons, both the CAT and

this Court disagreed with that assessment and upheld the “outstanding‟ grading given to the Respondent No.1 for the aforementioned

years. With no SLP having been filed against the judgment of this Court, it was not open to the Second Review DPC to ignore the judgments

of the CAT and this Court and simply reiterate what the First Review DPC had opined.

This is not an instance of the Court sitting in appeal over the grading given by the Selection Committee. Rather it is an instance where

the Second Review DPC chose to ignore the binding judgments of the CAT and this Court, which had upheld the grading given by the CA.

The Second Review DPC dismantled the binding decisions of the CAT and this Court by reiterating the gradings which had already been

declared ‘non est’. This is, therefore, a case of the Second Review DPC acting in defiance of the binding judgments of the CAT and

this Court.

The settled legal position is that a grading that has been declared ‘non est’ ought not to be considered while considering a case

of the candidate for promotion. The mandate of a Review DPC was to simply examine if on the basis of the grading of the Respondent No.1

being “outstanding†for the aforementioned 3 years, she could be denied her rank in promotion to JAG from the very date her juniors

were granted that grade. However, the Second Review DPC did not perform that exercise and took it upon itself to again assess Respondent

No.1 for the aforementioned 3 years for the purposes of grading her. Thus, for the second time the Review DPC overlooked its primary

mandate and fell into error.â€​

(emphasis supplied)

In view of the aforesaid, this Court is of the opinion that the arguments raised by the petitioner, namely that CGDA had no jurisdiction to decide

respondent no 5’s representation and/or that CGDA had not followed the proper procedure and/or that promotion to respondent no. 5 was highly

belated are no longer res integra as the learned predecessor Division Bench of this Court upheld the revised gradings given by CGDA. In fact the said

revision has been upheld as legal and valid by the CAT as well as another Division Bench of this Court in an earlier writ petition being WP(C)

5453/2013, Union of India vs. Rasika Chaube. Consequently, the revision in seniority list was pursuant to CAT’s order, as previously confirmed by

this Court.

Further, this Court is in agreement with the CAT’s findings that the relief granted to respondent No.5 with respect to ACR grading is purely

personal to her and the petitioner has no locus standi to challenge the same.

Consequently, this Court finds no reason to interfere with the impugned order of the CAT or revised seniority list issued by respondent No.3.

Accordingly, the present petition and application, being bereft of merits, are dismissed.