Director General All India Radio vs Rati Ram And Anr.
2007 Latest Caselaw 575 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of the learned Counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition is an off shot of OA No. 110/1994 filed by the respondent No. 1 before the Jodhpur Bench of Central Administrative Tribunal (in short 'CAT') against the adverse remarks recorded in the ACR and the recorded warning. The said OA was allowed by the judgment dated 13th November, 1998 by the CAT, Jodhpur Bench in the following terms:

i) The impugned order dated 10.1994, OM dated 15.1.96, 25-2-86, 6.5.87 and 7.3.89 are quashed;

ii) the recorded warning issued vide respondents' memo dated 15.1.86 is set aside and the adverse entries in the ACRs for the year 1985-86 of the applicant are expunged and declared as non-est.

iii) the applicant will be entitled to all service benefits which he would have been entitled to but for the existence of the recorded warning and the adverse remarks in the ACRs for 1985-86.

3. In order to implement the above judgment of the CAT, the petitioner took a view that since the post of Station Director for which the promotion was sought was a selection post a DPC was required to be held. Accordingly, a review DPC was held on 23rd November, 2001. The said review DPC declined the promotion to the respondent No. 1. The respondent No. 1 filed a Contempt Petition No. 12/2002 before the CAT, Jodhpur Bench challenging the convening of the review DPC which contempt petition was dismissed holding as follows:

In the contempt proceedings, this fact cannot be considered as to whether the review DPC was justified or not in not recommending the applicant for promotion. It can be the subject matter of fresh O.A.

4. Pursuant to the above observations of the Tribunal, the respondent filed OA No. 493/2003 before the CAT, Principal Bench, New Delhi. The CAT has based its impugned judgment dated 12th July, 2004 in OA No. 493/2003 on the fact that the vacancy for which the respondent No. 1 was considered in 1989 was of the year 1988 and for that year the only benchmark for selection to the post of Station Director was "Good". It is also not in dispute that for the year 1988 the respondent had achieved the ACR/benchmark of "Good". In the line of the aforesaid findings, the CAT held as follows:

25. The applicant has stated that the bench mark of "Very Good" came into existence from 10th April, 1989 after the consolidated DPC Rules were circulated and before that there was no such bench mark, hence for the vacancies of 1988 it would be incorrect to follow the bench mark of "Very Good". We agree with the contention of the applicant because in the Review DPC held on 20/21 March, 1989 when panels for the year 1988 were drawn up, the persons having grading of "Good" have been placed in the panel. The applicant was not placed in that panel because of insufficient vacancies and not because of his grading of "Good". Therefore the DPC held on 23.11.1989 has erred in using the benchmark of "Very Good" for the vacancies of 1988 and transferring of two additional vacancies for the year 1988 to the year 1989 on the ground that they could not be filled because of the non availability of the officers having the benchmark of Very Good. If these two vacancies had been reported along with the 10 vacancies for the year 1988 considered by the DPC on 20/21 March 1989, the applicant would have been selected.

5. The Tribunal further found as follows:

We also find that the Review DPC erred in transferring the two additional vacancies reported by the Ministry for the year 1988 to the year 1989 on the ground of non-availability of officers having the bench mark "Very Good" thereby using two different criteria for the vacancies of 1988.

6. In view of the above finding, the direction was given by the Tribunal that the respondent's promotion to the grade of Station Director (Group 'A' Scale of pay Rs. 3700-5000/- revised) in All India Radio/ Door Darshan in the Ministry of I&B which had been recommended for the year 1989 by the DPC of 23.11.1989 should be read as a recommendation for promotion for the vacancies for the year 1988.

7. The learned senior counsel Mr. Jayant Nath appearing for the petitioner has challenged the above findings on the ground that the permission given for the O.A. in the dismissal of the Contempt Petition is only for the question whether DPC's order was in compliance of the earlier direction of the CAT vide order dated 13th November, 1998. Mr. Nath further submits that the fact of bench mark of "Good" or "Very Good" could not have been gone into by the CAT on principles akin to Order 2 Rule 2. In our view, the above plea lacks merit because the error according to the respondent occurred only after the judgment dated 13th November, 1998 in the application of yard stick by the DPC for the 1988 vacancy and in the light of these facts which occurred after 1988, the respondent was perfectly justified in raising this plea in the OA. Accordingly, in this view of the matter we agree with the reasoning of the Tribunal that for the 1988 vacancy, the benchmark of "Good" ought to have been taken into reckoning, as it is not in dispute that the vacancy was of the year 1988 though sought to be processed only on 23rd November, 2001, pursuant to the order dated 13th November, 1998, passed by the CAT, Jodhpur. Consequently, the benchmark of 'Good' applicable to the 1988 vacancy had to be applied and indisputably the respondent No. 1 fulfillled the said benchmark, we see no reason to interfere with the impugned order of the CAT. The writ petition is thus dismissed.

8. The writ petition and all pending applications stand disposed of in the above terms.