Delhi High Court
Union Of India vs Suchitra Goswami on 10 October, 2014
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 10.10.2014
% W.P.(C.) No. 6907/2014
UNION OF INDIA ..... Petitioner
Through: Mr. Anurag Ahluwalia, CGSC and
Mr. Prashant Ghai, Advocate
versus
SUCHITRA GOSWAMI .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner - Union of India has preferred the present writ petition
under Article 226 of Constitution of India to assail the order dated
06.05.2014, passed by the Central Administrative Tribunal, Principal Bench,
New Delhi (for short, 'the Tribunal') in O.A. No. 3193/2012, whereby the
aforesaid original application preferred by the respondent was allowed and
the petitioner was directed to consider the respondent's case for notional
promotion from the dates from which her juniors Arun Kumar and Sanjiv
Datta were promoted to the post of Director. The respondent, however, was
denied arrears of pay and salary and other attendant benefits. She was,
however, held entitled to full benefits in her pensionary dues on the basis of
notional promotion.
2. The respondent was directly recruited to the Central Secretariat
Services (CSS) on the basis of the Civil Services Examination (CSE), 1973.
She was allotted 1975 batch. She earned promotions in 1981 to senior time
scale of Group 'A' (Under Secretary level); in 1991 to the selection grade
(Deputy Secretary level) and subsequently ante-dated to the year 1989 on
the strength of order passed by the Tribunal in O.A. No. 323/1992. The
respondent was fluent in Chinese and French languages and had an
outstanding/very good record till the year 1986. She also did her MBA in
Disaster Management.
3. The respondent, on completion of the requisite service, became
eligible for being considered for the rank of Director in the year 1994; Joint
Secretary in 1997-98 and Additional Secretary in the year 2000-01 as per the
Central Staffing Scheme, 1996. However, the DPC held in September, 1998
to consider the placement of candidates in the Directors list of 1994, found
the respondent unfit on account of her ACR for the year 1987 being graded,
as 'fair'. The respondent learnt of the reason for her not being placed on the
Directors' list in the year 1994 by invoking the provisions of the Right to
Information Act. The respondent disputed the said below bench mark ACRs
of 1987 by making her representation. The said disputed ACRs were
upgraded to 'good' on 28.03.1999. The respondent made a representation on
20.07.2010 for reconsideration of her case and consequently review DPC
was held in October, 2010. The CEB recommended the respondent for
inclusion in CSS Directors' suitability list for the year 1994. The EO made
further recommendation that if the proposal of CEB were to be accepted by
the Prime Minister, the respondent would stand to derive all benefits of pay
and promotion in terms of the O.M. dated 10.04.1989. These proposals
were approved by the Prime Minister on 16.11.2010. In the meantime, the
respondent was promoted as Director on 14.07.2010.
4. The grievance of the respondent was that despite approval as
aforesaid, she was promoted as Joint Secretary on 15.07.2012-just before 15
days prior to her superannuation. She claimed that she was drawing salary
which was Rs. 40,000/- less than what she would have otherwise drawn, had
she been promoted in time as per the eligibility criteria. She claimed that
she was drawing monthly pension of Rs. 25,000/- approximately less than
her normal entitlement.
5. The petitioner opposed the original application. As aforesaid, the
Tribunal has partially allowed the same.
6. Before proceeding further, we may take note of the ACR gradings
given to the respondent from 1979 till 2009-10, which have been reproduced
in the impugned order itself:-
1979 Outstanding Outstanding
1980 OS OS
1981 OS OS
1983 OS OS
1984 OS OS
1985 OS OS
1986 Very Good Outstanding
Very Good Good
1987 VG Good
No Grading Good
1988-89 No CR No CR
1989-90 VG VG
1990-91 VG VG
1991-92 VG VG
1992-93 No CR No CR
1993-94 No CR No CR
1994-95 Good -
1995-96 Good Average
1997-98 First Class First Class
(APPA) (APPA)
1998-99 No CR No CR
1999-00 Good Very Good
2000-01 OS -
2001-02 OS -
2002-03 No CR No CR
2003-04 No CR No CR
2004-05 VG VG
2005-06 VG VG
OS OS
2006-07 VG VG
2007-08 No CR No CR
2008-09 No CR No CR
2009-10 No CR No CR
7. The Tribunal held that once the respondent has been included in the
Directors' suitability list for the year 1994, her position had been restored to
her original place as per her entitlement. The effect of the incorrect
recording of the ACR and consideration of the same by the DPC held in
September, 1998, stood wiped out. The Tribunal then proceeded to consider
whether the respondent was entitled to promotion at par with her immediate
junior Arun Kumar, as claimed by her. The Tribunal takes note of the fact
that on account of wrong recording of the ACR for the year 1987, the
respondent continued to suffer on repeated occasions whenever the CEB
met. The Tribunal after taking note of the proposal dated 21.10.2010, which
was to the effect that name of the respondent may be included in the
Directors' suitability list for the year 1994 and which was eventually
approved by the Prime Minister, proceeded to consider as to what course
should have been followed once the applicant's name was included in the
Directors' suitability list for the year 1994. The submission of the petitioner
that there is a difference between - being placed in the suitability list, and
being selected for placement, was also considered by the Tribunal. The
Tribunal called for the relevant record and perused the same. The Tribunal
reproduced the office note dated 12.05.2011 which reads as follows:
"6. The matter was again referred to Estt(Pay) for their
advice vide notes at p.52/ante. That Division has examined the
case vide notes at pp.53-54/ante and has observed that stepping
up of pay would arise only after her appointment orders as
Director are issued if so warranted consequent to her inclusion
in Suitability List of 1994. In this regard it was clarified that
after cadre restructuring of CSS in 2003, the post of Director
became a cadre post of CSS. The years 2004-2007 were
declared as 'no panel years' for promotion to the grade of
Directors. Ms. Goswami s case was considered for inclusion
in Directors Select List (now handled by CS Division) for 2008
and 2009 and she was found 'unfit'. She was found 'fit' for
promotion to the post of Director in the Select List Year 2010.
Thereafter, orders were issued promoting her as Director on
14th July, 2010 (p.246/C) and the promotion was effective from
the date of assumption of charge. On inclusion of her name in
the Directors Suitability List 1994, a communication was issued
on 23rd November, 2010 (p.227/C) to the effect that the
competent authority has approved the inclusion of the name of
Ms. Goswami, a CSS officer, in the CSS Directors Suitability
List for the year 1994 on second review.
7. The issues for decision in the representation of Smt.
Goswami for fixation of pay with reference to her junior, Shri
Arun Kumar, clarifications sought by Establishment Division
and the position of CS Division are as follows:-
Issue Clarification sought by Position of CS
Estt. Division Division
(i) Seniority It will be possible to Vide notes at
allow stepping up of pay p.41/N, ante it was
in terms of OM dated clarified that Smt.
4.11.1993 to Smt. Goswami was a
Suchitra Goswami if she direct recruit SO of
is senior and drawing 1973 batch (Civil
less pay than her junior Services) whereas
in the Director's grade Shri Arun Kumar
as also she was drawing was SO of 1974
more pay than him in the batch. Further,
grade of deputy Smt. Goswami was
Secretary (p.42/N). included in
Directors'
However, before doing Suitability List of
that first we need a clear 1994 whereas Shri
confirmation that she is Arun Kumar in the
indeed senior to Sh. Directors
Arun Kumar, Addl. Secy Suitability List of
or Sh. R.P. Nath, JS 1995.
(p.45/N).
However, it was
also mentioned that
prior to October,
2003 CSS officers
were posted as
Director under the
Central Staffing
Scheme and were
allowed the pay of
the post of Director
with effect from the
date of assumption
of charge of the
post under the
Central Staffing
Scheme.
It was also
mentioned that the
provisions of
DOP&T O.M.
dated 4.11.93 may
not be strictly
applicable in this
case as the
anomaly has not
arisen as a result
of application of
FR 22-C.
(ii) Issuance Stepping up of pay In view of the fact
of promotion would arise only after that in 1994
order from her appointment orders Director level post
1994 as Director are issued if was not a cadre
so warranted, post of CSS and
consequent to her officers of CSS
inclusion in Suitability were entitled for
List of 1994 (p.54/N) empanelment as
Directors under the
Central Staffing
Scheme, orders
promoting Ms.
Goswami to the
post of Director
w.e.f. 1994 cannot
be issued by CS
Division and as
such stepping up of
pay is not possible.
8. The Tribunal further proceeded to observe as follows:-
"Further, there is an extract from OM No.22011/5/86-Estt.(D)
dated 10.04.1989, para 18.4.2 whereof provides that while
considering a deferred case, or review of the case of a
superseded officer, if the DPC finds the officer fit for
promotion/confirmation, it would place him at the appropriate
place in the relevant select list or the list of officers considered
fit for confirmation or promotion after taking into account the
toned down remarks or expunged remarks. The OM further
goes ahead to provide that in the case there is no vacancy the
junior-most officer officiating in the higher grade should be
reverted to accommodate the officer so reviewed. The relevant
provisions have already been quoted elsewhere in this order. It,
however, shows that the above provision of the OM dated
10.04.1989 was well within the knowledge of the respondent
organization and had been dealt with. From the perusal of the
file, it clearly emerges that what stands in the way of the
applicant getting reduced in seniority was the objection
regarding the possibility of his being not picked up by any
department.
18. We certainly do not subscribe to the arguments of the
respondents that the Director being a selection post under the
CSE Rules, there was a probability that she would not have
been picked up by any of the departments where her name was
selected. We find that there is absolutely no reason to adopt this
kind of presumption. To the contrary, we find that the applicant
is well versed in two foreign languages, namely, Chinese and
French. Out of the two, Chinese is certainly a most difficult
language to learn as it is still part- hieroglyphic. She has also
a string of qualification including M.Phil and MBA from two
different places to her credit. With these qualifications and her
consistently higher ACRs, we are fully of the view that there is
no ground for presumptions on part of the respondents that the
applicant would not have been picked up by any of the
departments to which her name would have been circulated. To
the contrary, we are satisfied that the applicant would have
been picked up for some selective post by some of the
departments.
19. The admitted error on the part of the respondent
organization has resulted in denial of promotion to the
applicant. We are also of the opinion that had the applicant
been promoted in regular time, the ACRs that she would have
earned would have been somewhere around equal to her
immediate junior Arun Kumar. However, the applicant has
spent a period of almost 11 years in pursuing court cases, filing
representations and meeting officers. Instead, this period could
have been well spent higher pursuit according to her capability
in superior posts had she been promoted in time. Nothing can
compensate for this loss of 11 years which was spent by a
deserving candidate, like the applicant, for getting promotion.
20. We are equally conscious of the fact that this Tribunal is
not empowered to direct promotion but is only empowered to
direct consideration of the applicant s case for promotion to
next below rule. Under the given circumstances, there are no
arguments that despite having placed the applicant in the
Directors' Suitability List for the year 1994, why she was not
given promotion in time. Therefore, we are firmly of the opinion
that the next below rule would apply vis-a-vis her immediate
juniors Arun Kumar, respondent no.3, and Sanjiv Datta,
respondent no.4."
9. The submission of learned counsel for the petitioner is that the mere
placement of the respondent in the Directors' suitability list of 1994 does not
ipso facto vest a right in the officer to be appointed as a Director. In this
regard, reference is made to paragraph 9 of the Office Memorandum dated
05.01.1996 which contains the Central Staffing Scheme and lays down the
procedure for selection and appointment of officers to Secretarial posts of
and above the rank of Under Secretary to the Government of India and to
certain import non-secretariat posts. Paragraph 9 states that, 'the panel
approved by the ACC on the recommendation of the Civil Services Board
will be utilized for making appointments to posts under the Government of
India, but inclusion in the panel would not confer any right to such
appointment under the Centre.' The submission of learned counsel for the
petitioner is that the Tribunal erred in concluding that merely because the
respondent was entitled to be placed on the Directors' eligibility list for the
year 1994, she would automatically become entitled to be appointed as a
Director before her juniors, namely, Arun Kumar and Sanjiv Datta.
10. Having perused the impugned order and considered the overall facts
and circumstances, as also the submission of learned counsel for the
petitioner in the light of the Central Staffing Scheme, we are not inclined to
interfere with the impugned order as we do not find any illegality or
infirmity in the conclusions drawn by the Tribunal. The Tribunal, in our
view, was right in concluding that the petitioner had not demonstrated any
reason to presume that the respondent would not have been picked up by any
of the departments upon being placed in the Directors' suitability list.
There was no blemish in the respondent's service record since she had either
outstanding or very good gradings in respect of the years for which her
ACRs were graded prior to 1994. Moreover, she was well versed with two
foreign languages, namely, French and Chinese and had attained
qualifications including M.Phil and MBA. Though, theoretically it may
have been argued that there was no right in the candidates placed on the
Directors select list for being placed as Director, that was not enough to
deny relief to the respondent. It was for the petitioner to produce material
before the Tribunal to dislodge the presumption in favour of the respondent
that she would not have been picked up by any of the departments, despite
her credentials upon being placed in the Directors' suitability list. The
petitioner did not produce any such material. In our view, the respondent
was treated rather shoddily by denying what was due to her which resulted
in her being selected as Joint Secretary on 15.07.2012 i.e. just 15 days from
the date of her superannuation.
11. Consequently, we are not inclined to interfere with the impugned
order, and dismiss the present petition.
VIPIN SANGHI, J.
S. RAVINDRA BHAT, J
OCTOBER 10, 2014
sl
