Jagdish Zumaklal Warkade vs Union Of India And Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-

i) To quash and set aside the order dated 06.04.2011 passed by respondent NO. 2 (contained in Annexure NO.1 to the application)

ii) To direct the respondents to interpolate the applicant in the order dated 17.11.2011 and upgrade him in the grade of SAG in IOFS to the pay scale of Rs. 37,400 to 67,000 + GP Rs. 10000/- with effect from the date the juniors to the applicant has been considered for the aforesaid promotion.

iii) To direct the respondents to promote the applicant to Junior Administrative Grade w.e.f. 1999 with all consequential benefits i.e. fixation/upgradation of pay in SAG level w.e.f. 19.02.2010 as per order No. 381/1088 (non functional upgradation) A/G dated 19.02.2010 and actual promotion to SAG grade w.e.f. 3.11.2010 as per OFB order No. 381/2067/A/G dated 3.11.2010 as per original batch seniority.

iv) To direct the respondents to consider the applicant promotion/upgradation in SAG ignoring the un-communicated below bench mark ACR and in place thereof the ACR of the preceding year may be considered with all consequential benefits.

v) Any other relief which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant.

vi) Award the costs of the original application in favour of the applicant”.

The facts of the case are that the applicant is a Scheduled Caste candidates. He initially posted as Assistant Works Manager in the year 1986. He was promoted as Works Manager in the year 1990 and got Senior Time Scale. Thereafter he was promoted as Junior Administrative Grade. While working as Joint General Manager at Small Arms Factory Kanpur, the office of the respondent NO.2 issued a letter dated 24.12.2010 with reference to below bench mark grade in ACR for the reporting period 2006-2007, holding that a copy of the ACR of applicant for the period from 2006-2007 was supplied to him and if applicant desires to file representation, he may file it and the same be sent to the Headquarter. In compliance of aforesaid letter dated 24.12.2010, the applicant submitted his representation dated 24.12.2010. Earlier, applicant has filed OA NO. 519 of 2000 before the Jabalpur Bench of the CAT. The applicant prayed therein that he has been denied the promotion to the post of Deputy General Manager/JAG under the garb of the adverse entries to which the applicant has made representation which was intentionally not decided in time and deprived him promotion. The original application was finally allowed quashing the adverse remarks for 1994-95 by order dated 12.03.2004. In compliance of direction of the Tribunal, applicant preferred a representation dated 26.4.2004 requesting therein to expunge the remarks endorsed in the ACR. Being aggrieved for non-constitution of review DPC, the applicant again preferred a representation before the respondent NO.2. The applicant though has promoted as JAG from 2003 but not from the due date i.e. 1999 from which date the juniors of the applicant has been promoted in the aforesaid grade.

We have heard Shri Ashish Srivastava learned counsel for the applicant and Shri Himanshu Singh, learned counsel for the respondents and perused the record and also perused the written submission filed by the respondents.

Learned counsel for the applicant argued that applicant has not been victimized first time but also in 1994-1995 and 1996-1997, he was intentionally awarding adverse entries to deprive him for consideration of his promotion as JAG 1999. He further argued that no adverse Annual Confidential Report (ACR) has ever been communicated to him nor has he received any warning, censure or any other minor of major penalty which would render him unfit for promotion. Learned counsel further argued that due to uncommunicated below bench mark ACR of the applicant, he could not be promoted as SAG in 2010. He contended that due to delay in communication of below bench mark ACR, the review authority of the applicant was already superannuated and as such there had been the only option that the ACRs for the aforesaid period would have been ignored for purposes of applicant’s promotion. Learned counsel for the applicant would contend that the applicant could not validly be denied promotion on the alleged ground of failing to meet the prescribed bench mark of ‘Good’ since it is well settled in law that the DPC cannot take into account any such ACR grading falling below the bench mark prescribed for promotion which had not been communicated to the employee under consideration for promotion. Learned counsel for the applicant would further contend that any ACR grading which may not be adverse by itself, but is of such nature, which may create impediment in the promotion or financial up-gradation of the applicant being below the prescribed bench mark, has necessarily to be communicated, so as to grant of an opportunity to the applicant to represent against the same and seek its revision, and if such a grading has not been communicated then the same has to be ignored by the DPC while making its recommendation. In support of this contention learned counsel for the applicant has placed reliance on the decision of Hon’ble Supreme Court dated 12.05.2008 rendered in Civil Appeal No.7631 of 2002, Dev Dutt Versus Union of India and Others. Learned counsel for the Applicant vehemently argued that the facts of the present Original Applications are quite similar to the facts of OA No.519 of 2000, Jagdish Zumukhlal Warkadae Vs. Union of India and others, which was allowed by Jabalpur Bench of the Tribunal vide judgment dated 1203.2004. In the said case the Tribunal was pleased to set aside the impugned order denying promotion to the applicant of that case, on the strength of the Judgment of the Hon’ble Supreme Court in the case of State of UP Vs. Yamuna Shanker Mishra reported in (1997) 4 SCC 7.

Learned counsel for the respondents, on the other hand, submitted that the orders dated 06.04.2011 and 07.11.2011 are self-explanatory on the subject as the representation of the applicant against his APAR for the year 2006-2007 was duly considered and disposed of as per prescribed procedure vide order dated 06.04.2011. Applicant has been given oral counseling repeatedly by the reporting officer before recording the adverse remarks.

We have carefully considered the rival contentions of the parties and we find that the facts of the present Original Applications are squarely similar to the facts of OA No.519 of 2000, Jagdish Zumukhlal Warkadae Vs. Union of India and others, which was allowed by Jabalpur Bench of the Tribunal vide judgment dated 1203/2004. In this case, case of Yamuna Shankar Mishra (supra) has been referred to wherein the relevant portion of the judgment is quoted below:-

“7…………….. Before forming an opinon to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the earring/corrupt officer to correct the errors of the judgment, conduct, behavior, integrity or conduct/corrupt proclivity …….”

From the perusal of the record, it is evident that applicant has also been victimized in past and representation against below bench mark ACR could not be decided in time, due to this reason, applicant could not be promoted in time. In the instant case also, due to delay in communicating the adverse ACR, the reviewing authority of the applicant was retired, representation of the applicant could not be decided in time and he has been deprived of his promotion in time. Hence, there is no dispute that the present O.A. is squarely covered by the aforementioned judgments which was decided by the Jabalpur Bench of this Tribunal.

Facts of the present matter are identical to the facts of Jagdish Zumukhlal Warkadae (supra). Entry for the relevant year 2006-2007 was not communicated to the applicant but at the time of promotion, it was taken into consideration. This implies that respondents have violated the principle of natural justice. Uncommunicated entry if takes effect of adverse remark at least it should have been communicated to the applicant so that he/she may properly explain the fact and give his stand. Non following the aforesaid facts itself indicate that action of the respondents was arbitrary and violative of principle of natural justice.

Since there was no fault on part of the applicant, promotion was denied to him on the basis of uncommunicated entry. Thus, we are of the view that prayers made in the OA are liable to be allowed. Accordingly, OA is allowed. Impugned order dated 06.04.2011 is hereby quashed and respondents are directed to consider for grant of notional promotion to the applicant ignoring uncommunicated adverse remarks entered in his ACRs for the year 2006-2007 within three month from the date of receipt of certified copy of this order. All associated MAs stand disposed of. No order as to costs.