Barkhoo Ram vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1011 Del

JUDGMENT

S.B. Sinha, C.J.

1. The jurisdiction of the Review Departmental Promotion Committee (in short, 'Review DPC') in terms of the extant rules is the question involved in this writ petition.

2. The petitioner was appointed as Lower Division Clerk by respondent No. 2. He was confirmed in the said post. He was promoted to the post of Upper Division Clerk. He completed the eligibility period of 5 years for promotion to the post of Inspector in the year 1993 along with other eligible candidates.

According to the petitioner, he obtained the second highest mark in the said examination. Thereafter he appeared in the physical test. This test is required to be held every time in terms of circular dated 23.10.1974 issued by the Central Board of Excise and Customs, New Delhi (in short, 'the Board') addressed to the Narcotics commissioner, Gwalior.

A regular meeting of the DPC for promotion of the eligible candidates to the Grade of Inspector from UDC/Steno Grade II for the year 1995-96 was held on 24/25.08.1995.

There were 5 vacancies wherefor admittedly 14 candidates were interviewed whereas for another vacancy in relation to reserved category, two other candidates were interviewed. Thus, 16 candidates, in total, were interviewed. The petitioner secured 4th position upon obtaining 68 marks in aggregate. He was promoted on 06.09.1995.

According to him, he would be deemed to have confirmed on the said post after completion of the period of probation. He also completed his training and became a trained Inspector on or about 12.08.1998.

3. It is not in dispute that the petitioner received a letter dated 05.10.1998 on 14.10.1998 asking him to appear again for interview before the Review DPC scheduled to be held on 16.10.1998.

According to the petitioner, although there was no sufficient time for the petitioner for his preparation to appear at interview, he appeared thereat.

4. By reason of the impugned order dated 24.10.1998, it was held that he had erroneously been promoted by the original/Regular DPC, but no reason therefore had been assigned.

Pursuant to and in furtherance of the said finding, the Assistant Narcotics Commissioner Neemuch issued an order dated 30.10.1998 whereby the petitioner was reverted to the post of UDC.

5. The petitioner filed an Original Application against the said order before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal' ), which was marked as O.A. No. 2405 of 1998. The reason of filing OA before the Principal Bench was that no regular Bench in the State of Madhya Pradesh was holding its sittings at the relevant time.

The said Original Application has been dismissed by reason of the impugned order dated 01.10.1999 wherein it is inter alia, held that the regular DPC allegedly followed the instructions dated 24.03.1992, which were said to have been kept in abeyance. It was noticed :-

"15. A perusal of the minutes of the review DPC held on 16.10.98 to review the DPC recommendation for the year 1991-92, 92-93, 93- 94, 94-95, 95-96 and 1996-97 bear out what has been stated in para 9 above. In the review DPC applicant was at SI. No. 24 and fell outside the zone of consideration as only 16 candidates were to be considered for filling up the 6 vacancies. In any case he secured 80 marks in the aggregate while there were 6 candidates who secured marks ranging from 85 to 90 marks in aggregate. Applicant was again considered in the review of the 1996-97 DPC which was considering filling up 10 vacancies, including 6 general, 3 for SC (including 1 carried forward) and 1 for ST (carried forward). For these 10 vacancies, 24 eligible candidates were required to be considered, but only 23 eligible candidates were available. Against the 6 general vacancies there were 6 candidates who secured aggregate marks ranging between 85 and 90, while applicant secured 80 marks, and hence had to be reverted."

6. Mr. Suresh Singh, the learned counsel appearing on behalf of the petitioner, inter alia, submitted that the learned Tribunal committed a serious error in passing the impugned order in so far as it failed to take into consideration that even assuming that a wrong guideline as contained in instruction dated 24.03.1992 was followed, the same would not make any substantive difference.

The learned counsel would urge that the learned Tribunal failed and/or neglected to consider the jurisdictional of Review DPC in the mater as laid down in various circular. He further submitted that Review DPC was not legally constituted.

According to the learned counsel when a person is promoted and worked for a long time, he acquires a right therein and the same cannot be taken away without compliance of the principles of natural justice.

In any event, the learned counsel without contend, there was absolutely no reason as to why for the purpose of accommodating three persons the Review DPC would consider the matter from 1991-92. Our attention in this connection has been drawn to a chart showing as to how cases of three other persons, namely, Shri A.K. Tulsidasan, Shri K.K. Saxena and Shri L.P. Ojha were taken into consideration by Review DPC.

7. Mr. S.K. Jain, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that Review DPC held its sitting only for the purpose of rectifying the mistake inasmuch cases of deserving candidates had not been taken into consideration.

The learned counsel would contend that for the said purpose, the matter had been opened since 1991.

8. on a query made to the learned counsel, it was submitted that the Department does not appear to have received any complaint, but some complaints might have been received by the Ministry and in support thereof a letter dated 17.08.1998 was produced before us, which is to the following effect :-

"F. No. A-32011/13/98-Ad. III A

Government of India

Ministry of Finance

Department of Revenue

New Delhi, the 17th August, 1998

To

The Narcotics Commissioner

C.B.N.,

GWALIOR

Subject : Review D.P.Cs. -- Clarification sought by C.B.N., Gwalior --

regarding

Sir,

I am directed to refer to you office letter F.No. 5/1/comfl/98-1026 dated 22/27.7.1998 on the subject cited above and to clarify that as Head of the Department, the Narcotics Commissioner is competent to order conducting or Review D.P.C. to the merits of each and every case.

Yours faithfully,

(O.P.AHUJA)

Under Secretary to the Govt. of India"

9. On or about 10.04.1989, the Ministry of Personnel, Public Grievances and Pensions issued Office Memorandum circulating guidelines, providing for scope, jurisdiction and procedure to be followed by Review DPCs in terms whereof Review DPC cannot change the grading of the candidates as also the zone of consideration without reasons to be recorded in writing.

Yet again on 18.12.1989, instruction were issued by respondent No. 1 in terms whereof procedure to be followed for selection of candidates from ministerial grades for promotion to Group 'C' Executive posts in the Customs, Central Excise and Narcotics Department had been laid down whereby the qualifying marks in written test was prescribed at 40% and a maximum of 100% was provided each for written test, interview and assessment of ACRs.

The said selection procedure, however, was modified on 09.05.1991 in terms whereof the written examination was to be only qualifying in nature with 50% qualifying marks and marks secured in the written examination were not be taken into account for deciding the rank. The total marks for ACRs were prescribed as 80 marks and for interview 20 marks with minimum of 10 marks.

In suspension of previous instruction, on or about 24.3.1992, the Board issued instruction laying down procedure to be followed for selection of candidates for promotion to Grade 'C' Executive posts in terms whereof it was provided that in addition to physical test, selection process should comprise of assessment of ACRs, interview and retention examination.

10. As noticed hereinabove, according to the respondents, those instructions had been kept in abeyance. A comparative chart of the three different procedures as referred to hereinbefore is as under :-

Procedure for Selection from the Ministeral Grade for promotion to Group C Executive Posts.

Instruction

Instruction

Instruction

Dated 18.12.1989

Dated 9.5.1991

Dated 24.3.1992

Annexure P-8/page 42

Annexure P-9/page 46

Annexure P-10/page- 48

1. Written Test

Selection process prescribed by instruction dated 18.4.1989 partially.

(Kept in abeyance) All earlier instructions superseded.

Qualifying marks 40% Candidates securing 40% and above should be called for interview besides physical tests immediately before interview.

1. Written test shall only be of quality nature with 50% qualifing marks.

1. Written Test Qualifying with 50% marks in addition to physical test.

2. Merit

Written Test :110 mks.

2. CCRs (Preceding 5 years)

2. CCRs (Procedinfg years):

Outstanding      :80

Outstanding   :16 each

Interview   :100 mks.

Very good        :70

Very Good    :12 each

CCRs       :100mks.

Good               :60  

Good             : 

8 each

Adequate/]     :4 each

3. Interview:-

Proceedings 5 Years

Outstanding       :200

Average]

3. Interview:-

Very good        : 

Outstanding    :20 each

3. Grading

Good                 : 10

Very good      :15

Outstanding    :80

All

Good              :10

Very good      :60

Good             :40

(Same grading for interview)

Test, interview and CCRs shall from the basis of merit panel CCRs are not to be seen by the Members of DPC until all interviews are over

All other provision of instruction dated 18.12.1989 would remain the same

Candidate performing less than good. DPC may award such marks as DPC may consider appropriate.

11. It may be noticed that there is nothing on record to show that Review DPC was held pursuant to any complaint made by the Department. In fact from the letter dated 17.08.1998, it appears that the Under Secretary to the Government of India responded to the letter of Narcotics Commissioner dated 22/17.07.1998 in terms whereof a clarification was made that as Head of the Department, he was competent to order conducting of Review DPC to rectify mistakes in deserving cases on the basis of the merits of each and every case. What were the purported mistakes committed by the DPC, however, had not been stated.

12. Assuming that the procedure laid down in its instructions dated 24.03.1992 issued by the respondent had wrongly been followed, the same by itself could not have been a ground for holding the Review DPC unless and until it was clearly demonstrated that thereby the right of a candidates to be promoted has wrongly been denied.

13. In any event, if a practice has been followed for a long time, which is not otherwise unjust, we are of the opinion that the same could not have been taken to be a ground for holding the Review DPC as a result whereof the changes would be effected since 1991-92 and that too at one go particularly when the respondents themselves had issued a chart showing persons, who had been considered for promotion in 1995-96 and 1996-97.

14. For the purpose of promotion, as noticed hereinbefore, not only a written examination was held, but also physical test and oral interview had been taken. The orders of promotion had been given effect to and the persons concerned had been working satisfactorily to their promoted posts for a long time.

Only because the purported directions of the Ministry dated 24.03.1992 was followed by the DPC, which had been kept in abeyance, the same by itself could not have been a ground for holding the Review DPC unless, as indicated hereinbefore, the same had resulted in manifest injustice to some others.

15. The posts were selection posts. The question as to what would be the zone of consideration is really a matter of procedure and in a given case having regard to the power of relaxation that all the requisite authorities possess the same by itself could not have been a ground for holding Review DPC, particularly having regard to the circular letter dated 10.04.1989 in terms whereof grading of a candidates could not be changed without reasons to be recorded in writing nor the zone of consideration could be changed. In the instant case, grading had been changed. if grading could not be changed, the petitioner could not have been asked to appear again for interview before the Review DPC as a result whereof not only his grading has been changed but also a separate zone of consideration was fixed resulting in the petitioner having been excluded from the zone of consideration.

Furthermore, there is nothing on record to show that all the persons whose cases had been considered by the Review DPC for 1991-92 were required to appear at the written test, physical test as also oral interview, why some persons were singled out and asked to appear again for interview is a matter of mystery.

16. There is also nothing on record to show that the mandatory provisions as contained in the circular letter dated 23.10.1974 to the effect that all the candidates would require to qualify the physical test every time their cases are considered by the DPC for promotion had been followed.

17. We may notice that in the Office Memorandum dated 10.04.1989, procedure has been laid down as to when a Review DPC can be held, as also its scope and procedure and cases where adverse remarks have been expunged or toned down, which is to the following effect :-

" R E V I E W D.P.C.s

WHEN REVIEW DPCs MAY BE HELD :

18.1 The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC of if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, e.g.

(a) where eligible persons were omitted to be considered; or

(b) where ineligible persons were considered by mistake; or

(c) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or

(d) where some procedural irregularity was committed by a DPC; or

(e) where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer.

These instance are not exhaustive but only illustrative.

SCOPE AND PROCEDURE :

18.2 A review DPC should consider only those persons who were eligible as on the date of meeting the original DPC. That is, persons who became eligible on a subsequent date should not be considered. Such cases will, of course, came up for consideration by a subsequent regular DPC. Further the review DPC should restrict its scrutiny to the CRs for the period relevant to the first DPC. The CRs written for subsequent periods should not be considered. If any adverse remarks relating to the relevant period, were toned down or expunged, the modified CRs should be considered as if the original adverse remarks did not exist at all.

18.3. A review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently.

CASES WHERE ADVERSE REMARKS HAVE BEEN EXPUNGED OR TONED DOWN :-

18.4.2. While considering a deferred case, or review of the case of a superseded officer, if the DPC finds that officer fit for promotion/confirmation, it would place him at the appropriate place in the relevant select list/list of officers considered fit for confirmation or promotion after taking into account the toned down remarks or expunged remarks and his promotion and confirmation will be regulated in the manner indicated below.

The fact that the Review DPC had a limited jurisdiction was not considered at all by the learned Tribunal.

18. Furthermore, the learned Tribunal has failed to take into consideration that even if there had been alleged procedural lapses or some alleged defects, the same by itself may not be a ground for unsettling a settled position when it would not have a great bearing on the subject which aspect was not taken into consideration.

19. A person when promoted after following the procedure laid down and works for a long time on that post, acquires a right to hold the said post, unless and until there exists very strong and cogent reasons, he should not be reverted there from for no fault on his part.

20. If the cases of eligible persons had not been considered, the respondents could have, by following the same procedure, granted promotion to some others with retrospective effect and/or therefore even supernumerary post could have been directed to be created, but the right of a person could not have been taken away without following the prescribed procedure. In any event before taking into consideration the fact that as ever before passing the impugned order the principles of natural justice were not complied with, the same cannot be sustained.

21. We accordingly allow this writ petition and set aside the judgment of the learned Tribunal. We allow the O.A. filed by the petitioner for the reasons stated above and consequently set aside letter dated 30.10.98 whereby the petitioner was reverted to the post of UDC. The petitioner shall be entitled to consequential benefits.

22. This writ petition is accordingly disposed of. However, in the facts and circumstances of the cases, there shall be no order as to costs.