Allahabad High Court
Additional Director Central ... vs Dr Pradeep Kumar Tandon And Another on 1 July, 2024
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:106229-DB
RESERVED
Chief Justice's Court
Case :- WRIT - A No. - 3755 of 2024
Petitioner :- Additional Director Central Government Health Scheme And Another
Respondent :- Dr Pradeep Kumar Tandon And Another
Counsel for Petitioner :- Ashish Tripathi
Counsel for Respondent :- A.C.Tiwari(Ac), Ashish Kumar Srivastava
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Vikas Budhwar,J.
(Per: Arun Bhansali, CJ)
1. This writ petition is directed against order dated 11.05.2023 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, whereby the Original Application (OA) filed by the respondent has been allowed and the orders impugned in the OA dated 22.10.2010, 06.11.2012, 23.01.2014 and 04.04.2014 have been set aside to the extent they pertain to the respondent and the petitioners have been directed to hold a Review DPC for the respondent to consider his suitability for proforma promotion, based on the ratio of the judgment in HS Acharya Vs. Union of India and others: OA No. 1684 of 2009, decided on 11.08.2009 by the Principal Bench of the Tribunal, considering his ACR of 2001-02 instead of ACR for the year 2006-07 and if he is found eligible, accord proforma promotion from the date his immediate juniors got the promotion and to fix his pension and other consequential benefits accordingly.
2. The Original Application No. 553 of 2014 was filed by the respondent aggrieved of the orders dated 22.10.2010, 06.11.2012, 23.01.2014 and 04.04.2014 and seeking direction to promote him at Senior Administrative Grade (SAG) level for the panel year 2008-09. The respondent was initially appointed as Medical Officer, Central Government Health Scheme and in due course, he was promoted in Junior Administrative Grade. The petitioners published a list of eligible candidates in the month of January/February, 2010 for consideration of their promotion to SAG, in accordance with the eligible criteria. The respondent was served with a letter issued by the petitioner indicating that he has been assessed 'Good' by the Reporting and Reviewing Officer in the ACR for the year 2006-07, which is below the benchmark for promotion to Super Time Grade. The respondent preferred representation against the said below benchmark remark in the ACR, which, apparently, remained pending. However, on 22.10.2010, the petitioners published a list of 533 Medical Officers, who were promoted to the post of SAG for the panel year 2008-09, whereby large number of juniors to the respondent were allowed promotion. However, the same was denied to the respondent on the ground that his ACR for the year 2006-07 was assessed as 'Good', which was below the benchmark, i.e., 'Very Good' for promotion to the post of SAG. Whereafter, vide Office Memorandum dated 07.07.2011, it was indicated that the competent authority has considered the representation for upgradation of below benchmark grading of ACRs, whereby the grading of the respondent as 'Good' for the year 2006-07 was retained. The respondent preferred a fresh representation for upgrading the below benchmark ACR. However, by communication dated 06.11.2012 the respondent was informed that there was no ground for upgradation of below benchmark grade of ACR for the period of 2006-07 and that the view of Reporting/Reviewing Officers are to be taken into consideration only when they are in service and not after their retirement. Further communications made also pertaining to the grading of the year 2007-08, met the same fate. Feeling aggrieved, the present OA was filed.
3. Submissions have been made that the uncommunicated ACRs could not have been taken into consideration by the DPC while considering the respondent for promotion at SAG level. Further submissions have been made that as the Reporting and Reviewing Officers had retired before consideration of the representation against the below benchmark ACRs, the ACRs of the previous years were required to be taken into consideration and for that purpose, reliance was placed on the judgment of HS Acharya (Supra).
4. Submissions have also been made that uncommunicated ACRs were required to be ignored in view of the law laid down by Hon'ble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India and others : (2009) 16 SCC 146.
5. Counter was filed by the petitioners, inter alia, indicating that on account of failure of the respondent to meet the requisite benchmark for promotion to SAG, his candidature was rightly rejected by the DPC. Submissions were made that the representation made by the respondent was appropriately considered by the competent authority and his grading was retained as 'Good'. Further submissions have been made that the instructions issued vide DoPT OM No. 21011/1/2006 dated 28.03.2006 specifically provide that below benchmark gradings were not required to be communicated and therefore, non-communication in this regard was of no consequence.
6. After hearing the parties, the Tribunal, by the impugned order, came to the conclusion that the representation made for upgradation of the ACR from 'Good' to 'Very Good' was not acceded to as concerned Reporting and Reviewing Officers had already retired from service and the competent authority retained the said entry. Relying on the order in the case of HS Acharya (supra), wherein it was laid down that where the Reporting and Reviewing Officers, who had initiated and finalized the report of the applicant, have retired, the DPC shall have to consider the report of an employee immediately preceding the first report, which was under consideration and consequently, passed the order impugned.
7. It was vehemently submitted by learned counsel for the petitioners that though the DPC for promotion at SAG level was held on 26.05.2010, and those found fit were recommended for promotion by the DPC and were promoted. However, in terms of the OM dated 13.04.2010, cases of doctors whose recommendable ACRs were having below benchmark grading, were returned by UPSC for taking necessary action and the case of the respondent was also returned by the Commission as his ACR for the year 2006-07 was graded below benchmark. Whereafter, based on the directions contained in OM dated 13.04.2010, the below benchmark grading was communicated to the respondent on 29.07.2010 and after consideration of his representation, the same was retained by order dated 07.07.2011. Based on the determination made on 07.07.2011, the UPSC considered the case of the respondent in the DPC held from 12 to 15 of December, 2011 and assessed him unfit and therefore, the plea sought to be raised regarding consideration of uncommunicated ACR by the DPC, apparently, has no substance. Further submissions have been made that the determination which was made by the competent authority on the representation of the respondent against below benchmark ACR is based on the material available and therefore, the same could not have been disturbed only on account of the fact that the Reporting/Reviewing Officers had since retired and therefore, the order impugned passed by the Tribunal deserves to be set aside.
8. Learned counsel appearing for the respondent made vehement submissions that the plea sought to be raised by way of the supplementary affidavit before this Court, was not raised at any stage before the Tribunal. Submissions have been made that irrespective of the plea now sought to be raised, the order passed by the Tribunal does not call for any interference, inasmuch as the same is based on the law laid down in the case of HS Acharya (supra), wherein it has been laid down that in a case where the Reporting and Review Officers have retired, the available ACR of the previous year has to be taken into consideration and therefore, the order impugned does not call for any interference.
9. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
10. As per the case set up by the respondent and contested by the petitioner before the Tribunal, the plea raised was that the DPC, which was held on 26.05.2010, which resulted in passing of the order dated 22.10.2010, promoting persons junior to the respondent, was based on uncommunicated ACRs which were below benchmark. The said action was sought to be defended based on a circular of the year 2006, however, the Tribunal came to the conclusion that as the rejection of the representation against the below benchmark ACR was, inter alia, on account of Reporting/Reviewing Officers having retired, a Review DPC was required to be convened for considering the case of the respondent based on previous year ACR, which, admittedly, was not below benchmark.
11. The Tribunal, based on the material available before it, followed the order of the Principal Bench in the case of HS Achariya (supra) and accepted the petition.
12. In the supplementary affidavit filed before this Court on the direction given by the Court to indicate the date of holding of the DPC, which resulted in passing of the order of promotion dated 22.10.2010, besides indicating the date of holding of the DPC on 26.05.2010, further plea has been raised, i.e., the said DPC did not consider the case of the respondent and the same was considered by the DPC only after the representation made by the respondent was considered and rejected. Besides the fact that the plea now sought to be raised was never raised and has been placed by way of supplementary affidavit, that also when a query pertaining to only the date of holding the DPC, was made by the Court. The said plea is now not open to be taken into consideration.
13. Besides the above, the rejection order dated 06.11.2012, inter alia, reads as under:
"OFFICE MEMORANDUM
Subject: Representation of Dr. P.K. Tandon, CMO (NFSG) against retention of grading in below benchmark ACR for the period 2006-07-reg.
-------
The undersigned is directed to refer to a letter dated 27.09.2012 from Dr. P.K. Tandon, CMO (NFSG) on the subject mentioned above and to say that the representation agains the below benchmark ACR are considered as per the Deptt. Of Personnel & Trg. O.M. No. 21011/1/2010-Estt.A dated 13.4.2010. The below benchmark ACR gradig in Competent Authority and since there were no grounds for upgradation of below benchmark grading of ACR for the period 2006-07 it was decided to retain the grading as "Good" after evaluating the ACR in a objective manner. The view of Reporting/ Reviewing Officers are to be taken into account only when they are in service and not after their retirement. Since the due process of action with regard to Deptt. Of Personnel & Trg. O.M. No. 21011/1/2010-Estt.A dated 13.4.2010 has been completed and therefore, there is no ground for re-consideration. No appeal lies under the aforesaid O.M. after the Competent Authority has given the decision on the representation.
(LALIT KUMAR)
UNDER SECRETARY TO THE GOVT. OF INDIA
Tele No. 23062550"
14. A perusal of the above would reveal that the below benchmark ACR was not communicated in time and the same was communicated after three years, by then the Reporting/Reviewing Officers had retired and when the representation was made by the respondent against the below benchmark entry, the competent authority without seeking the view of Reporting/Reviewing Officer, apparently, on account of their having retired, rejected the representation. The Tribunal, in the case of HS Acharya (supra), had directed that in a case where the Reporting and Reviewing Officers, who had initiated and finalized the report of the officer have retired, the DPC shall have to consider the report of the employee immediately preceding the first report which was under consideration, which determination appears to be just and proper.
15. In the circumstances of the given case, wherein an upgradation is sought by an officer/employee, unless the comments of the Reporting/Reviewing Officers are available on the representation, the rejection of the same, based on the material already available, which the competent authority has no occasion to deliberate upon for lack of any personal information qua the officer and the circumstances in which the grading was made and whether on the grounds indicated by the employee, the same was required to be reviewed/upgraded and only in a mechanical manner, rejecting the representation, results in the employee literally being condemned for no fault of his.
16. In view of above discussion, the directions given by the Tribunal do not call for any interference. There is no substance in the writ petition. The same is, therefore, dismissed.
Order Date :- 01.07.2024
Mukesh Pal
(Vikas Budhwar, J) (Arun Bhansali, CJ)
