Union Of India And Ors vs R.S. Dhillon

The appellant Union of India has approached this court through this writ petition under Articles 226 and 227 of the Constitution of India for assailing

the judgment/order dated 06.04.2016 passed by the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur (for short, hereinafter referred to

as ‘the Tribunal’) whereby the Original Application No.169/2013 preferred by the respondent Shri R.S. Dhillon was accepted and the appellants

were directed to extend all the service benefits to him by ignoring the uncommunicated ACRs.

The thrust of arguments advanced by Mr. Ashok Chhangani and Mr. Avin Chhangani, Advocates, representing the appellants, was that the

respondent agitated the service benefits on the ground that the entry of ‘Good’ was not communicated after a significant delay and therefore,

he is not entitled to the relief claimed for on the ground of delay and that the learned Tribunal, ought not to have interfered in the matter and the

original application should have been rejected on the ground of latches alone. Learned counsel Mr. Chhangani further submitted that there was no plea

in the original application that the disputed entries had not been communicated to the respondent employee and therefore also, he was not entitled to

the relief claimed for. In support of their contentions, learned counsel for the appellants, placed reliance upon the judgment rendered by the

Hon’ble Supreme Court in the case of Union of India Vs. Jagdish Pandey [Civil Appeal No.365/2007 in decided on 08.07.2010].

Per contra, Mr. Sandeep Shah, learned counsel representing the respondent, vehemently and fervently opposed the submissions advanced by Mr.

Chhangani. He urged that the bogey of delay, which is raised by the appellant Union of India for opposing the claim of the respondent is absolutely un-

substantiated because the impugned order has been passed in the third round of litigation forced upon the respondent, who is now 71 years of age. He

was denied promotion from level T-7 to T-9 under the Career Progression Scheme for Technical personnel on the basis of the uncommunicated

entries in the ACRs even though he had become eligible for promotion to level T-7-8 in the year 1996 itself.

Mr. Shah pointed out that the first Original Application for ventilating this grievance came to be filed by the respondent before the CAT in the year

2005, being Original Application No.86/2005. Pending disposal of this Original Application, the appellants rejected the case of the respondent-applicant

for promotion, whereupon the Original Application No.86/2005 was withdrawn seeking leave to file a fresh one.

Thereafter, the second Original Application No.217/2006 was filed, whereby the order dated 21.09.2005 passed by the employer rejecting the claim of

the applicant for being promoted to level T-7-8 was challenged. In this Original Application, specific prayer was made that the employer be directed to

consider the case of the applicant for promotion as Technical Assistant (T-9) with effect from 01.01.2003. The Tribunal allowed the Original

Application and quashed the order dated 21.09.2005 and directed the employer to promote the applicant as T-7 with effect from 04.01.1996 and grant

him all consequential benefits including arrears of pay and allowances and re-fixation of pension within three months. A further direction was given to

expeditiously consider promotion of the applicant for the next grade, i.e. T-9, for which he became eligible before his retirement in the year 2008. The

order dated 24.03.2010 passed by the Tribunal was never challenged and has attained finality. The order of the Tribunal was not complied with,

whereupon, the respondent-applicant filed a contempt petition before the Tribunal and in furtherance of such proceedings, he was afforded promotion

as T-7 with effect from 04.01.1996 and was granted all consequential benefits. However, the case of the applicant for promotion as T-9 was rejected

vide communication dated 05.02.2011 as he was reportedly not having the requisite qualification for direct recruitment on the category in question.

The respondent-applicant filed the Original Application No.71/2011 for assailing the order dated 05.02.2011 seeking a direction for promotion to the

post of T-9 with effect from 04.01.2003. In reply, the appellant-respondents stated that the candidature of the applicant for promotion to the category

of T-9 had been considered by the DPC, whereupon, the Original Application came to be disposed of vide order dated 02.08.2012 with liberty to the

respondent-applicant that he would be free to challenge the subsequent order, if occasion so arose. The respondent-applicant thereafter sought revival

of the Original Application No.71/2011 because the promotion order was not forthcoming. However, rather than promoting the respondent-applicant,

the appellants rejected his case vide order dated 08.01.2013, whereupon the miscellaneous application for recalling the earlier order passed in the

Original Application was withdrawn and a fresh Original Application No.169/2013 was filed for assailing the order dated 08.01.2013 before the

Tribunal. The said Original Application was allowed by the Tribunal by the impugned judgment dated 06.04.2016.

Mr. Shah urged that the ground of non-communication of the ACRs was specifically argued and agitated before the Tribunal and was admitted by the

employer and the fact that the entries of ‘Good’ were utilized for denying promotion to the respondent on the post of T-9 were never

communicated to him.

An additional affidavit admitting this contention of the employee was filed by the employer before the Tribunal. Mr. Shah relied upon the Supreme

Court decisions in the cases of (1) Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. [(2015) 14 SCC 427]; (2) Dev Dutt Vs. Union of India

& Ors. [(2008) 8 SCC 725] and (3) Sukhdev Singh Vs. Union of India & Ors. [(2013) 9 SCC 566] and urged that law is well-settled that the

uncomunicated ACRs cannot form a ground for denial of service benefits to an employee. On these submission, Mr. Shah sought dismissal of the writ

petition.

Mr. Chhangani, learned counsel representing the appellants, is not in a position to dispute the fact that ACRs of ‘Good’ for the period from

01.04.1993 to 31.03.1994 and from 01.04.1995 to 30.11.1995 were admittedly never communicated to the respondent. He reiterated that no such

specific averment was made by the respondent in the pleadings before the Tribunal.

However, as we have noted above, specific argument to this effect was advanced before the Tribunal and the employer, i.e. the appellant herein

admitted this fact by filing an additional affidavit that the ACRs for the period between 1996 and 2003 were not communicated to the respondent.

Hence, it cannot be treated to be a situation where, no such assertion was made before the Tribunal. It is clear that this issue was agitated and that is

when the employer was called upon to file the affidavit. Thus, considering the ratio of the Supreme Court decisions in the cases of Prabhu Dayal

Khandelwal, Dev Dutt and Sukhdev

Singh (supra), we are of the firm opinion that these ACRs, wherein entries of ‘Good’ only have been recorded, could not have been made the

basis of denying promotion to the respondent; moreso when this disclosure was also made by them at a highly belated stage in the proceedings before

the Tribunal. The plea put forth by Mr. Chhangani that the respondent-applicant filed a highly belated claim for promotion before the Tribunal is also

untenable considering the fact that the respondent has been espousing his cause for promotion before the Tribunal since the year 2003 onwards. He is

in the eve of his life being 71 years of age. Thus, we feel that the approach of the appellant authorities in dragging him to the courts despite a clear

lacuna and illegality in the procedure adopted by them is absolutely unjustified.

As an upshot of the above discussion, we are of the opinion that the impugned order dated 06.04.2016 passed by the learned Central Administrative

Tribunal, Jodhpur Bench, Jodhpur in Original Application No.169/2013 does not suffer from any infirmity or illegality whatsoever warranting

interference therein. Thus, we find no reason to interfere therein while exercising the extraordinary writ jurisdiction of this court. Accordingly, the writ

petition is dismissed as being devoid of merit.