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Judgment
The petitioner before this Court was applicant before
Central Administrative Tribunal, Patna Bench, Patna. He filed O.A.
No.97 of 2015 for quashing the decision dated 15.12.2014 where his
demand for grant of benefit of promotion to Super Time Scale with
effect from 18.1.2011, when his juniors were granted such benefits,
was negated. This order was Annexure- A/8 to the O.A. application.
The other relief prayed was for quashing of order dated 18.2.2015
where claim for interest on payment of DCRG was rejected by the
Government. Quashing of this order was also prayed for which was
Annexure- A/9 in the O.A. was application but annexed with an M.A.
application filed in the O.A.
Petitioner is a promoted I.A.S. officer, who
superannuated on 31.1.2011. His grudge is that even though his case
was considered by the D.P.C. for grant of Super Time Scale in the
meeting held on 6.1.2011 along with his batch mates of 1995, the
juniors came to earn that benefit but his case was deferred on the
ground of pendency of a disciplinary proceeding and his case was put
in a sealed cover. The petitioner came to be exonerated of the charges
vide order dated 1.9.2014, therefore, he pleaded that since he has been
exonerated of the allegations, he deserves to be granted benefit of
Super Time Scale like his juniors. He prayed for a pay scale of
Rs.37400- 67000 with a grade pay of Rs.10000. Subsequently, since
there was delay in settlement of his post retrial dues due to the
pendency of the disciplinary proceeding, settlement of DCRG also get
delayed on which he prayed for grant of benefit of interest.
The respondent State of Bihar contested the claim of
the petitioner by taking a stand that a departmental proceeding vide
memorandum dated 05.01.2011 was initiated. Case of the petitioner
for promotion to Super Time Sale was placed before the D.P.C. on
06.01.2011. Since a disciplinary proceeding was pending, the
suitability of the petitioner was considered and kept in a sealed cover,
which, on opening, found the petitioner unfit for promotion as per the
grading, which he had earned for the relevant period. After the
closure of the departmental proceeding on 01.09.2014, the case of the
petitioner was placed before the D.P.C., which met on 15.12.2015.
The D.P.C. considered the case in the light of para 18.1. and para 8 (2)
(d) of the guideline of promotion issued by the Government of India
and Rule 2 (iv) of the IAS (Pay) Rules, 2007. The Departmental
Promotion Committee when opened the sealed cover, found the
opinion ''unfit for promotion''. In addition to that, since the petitioner
had superannuated on 31.01.2011, much prior to the closing of the
departmental proceeding on 01.09.2014, there was no occasion to
consider grant of promotion on Super Time Scale to such a candidate,
who was not only found unfit by the D.P.C. but had also
superannuated much earlier.
On behalf of the petitioner it was argued before the
Central Administrative Tribunal that his case was similar to the case
of one Bhrigu Nath Dwivedi vs. State of Bihar & Ors . and the order
passed by the CAT in OA 143 of 2009. The date of passing of the
order in the said OA is 02.04.2009 where a Co-ordinate Bench
directed to hold a review D.P.C. for consideration of grant of
Selection Grade from the date his juniors were granted, provided he
was found fit.
The Central Administrative Tribunal went through the
order passed in Bhigu Nath Dwivedi''s case where relief was based on
the set of facts where it was held that if juniors had been given
promotion prior to the date of superannuation of the employee, in
appropriate cases retrospective promotion can be ordered, if he was
otherwise found fit.
The Tribunal did not disagree with the proposition as
such but while dealing with the facts of the present case to be such,
the said principle could not be applied across the board. The case for
promotion to Super Time Scale of the petitioner was considered by
the D.P.C. held on 06.01.2011. Name of the present petitioner was at
Serial No.10. The D.P.C. found him ''unfit'' for promotion in terms of
the finding recorded and since the departmental proceeding was
pending at the relevant time, a sealed cover procedure was adopted,
which was opened after the conclusion of the departmental
proceeding. The respondent State of Bihar considered the case of the
petitioner as per the D.P.C. held on 15.12.2014 but since it found the
petitioner unfit for grant of promotion on the ground that the
screening committee, which was held in the year 2011, found him to
be so. The second reason was that the petitioner had retired on
31.01.2011. Once the D.P.C. found him unfit for promotion at the
time when even his juniors'' cases were considered, it makes no
difference whether he was exonerated in the departmental proceeding
subsequently or not. The petitioner could have had a case provided
the sealed cover revealed that he was otherwise eligible and fulfilled
the parameters and the screening committee did not record its opinion
as ''unfit''.
From the narration of facts it is evident that it was not
because of the pendency of the departmental proceeding that the
benefit of grant of promotion to Super Time Scale was denied to the
petitioner. It was the content of the sealed cover, which had found the
petitioner unfit, which proved to be the stumbling block after the
closure of the departmental proceeding. If the screening committee
had found the petitioner fit on the parameters and the assessment then
surely a promotion could have been given even though the petitioner
had retired in the meantime but prior to his retirement, the opinion of
the screening committee was that the petitioner was unfit and,
therefore, was not capable of earning a promotion at par with his
juniors.
The Tribunal, therefore, did not agree with the
submission of the counsel for the petitioner that it was only because of
the pendency of the departmental proceeding and that too because the
same was closed only on 01.09.2014, the petitioner did not earn his
promotion.
The facts are otherwise if the man was found unfit by
the D.P.C. in terms of the parameters then the opinion of the D.P.C. is
not required to be overridden by a court of law. The assessment is
best left to such expert bodies and there is no occasion for a court of
law to apply its wisdom unless something really gross or glaring is
pointed out by any officer in such decision making process.
On the claim with regard to payment of interest on
the DCRG, the Tribunal was of the opinion that since the
departmental proceeding was closed only in September 2014
exonerating him and full and final settlement of DCRG was made in
February 2015, there has not been extraordinary delay in settlement of
his claim. The period between the date of superannuation and the date
when the departmental proceeding was closed, therefore, cannot earn
any interest on the ground of delay. However, the Tribunal did not
find it to be a fit case for grant of any interest even for the period
September 2014 to February 2015 since there was no delay in
sanction.
When the writ application was taken up the
argument more or less veered around the same course as was made
before the Central Administrative Tribunal. However, in addition to
that, submission is made before the High Court that since the
respondent authorities did not communicate any adverse entry in the
ACR to the petitioner at any point of time, the same cannot be
considered as adverse and used against him. In this regard, reliance
has been placed on the decision of the Hon''ble Supreme Court in the
case of Deo Dutt v. Union of India & others, reported in AIR 2008
SC 2513.
In Deo Dutt''s case (supra), the Hon''ble Supreme
Court did take note of the office memorandum dated 10/11.9.1987
where only adverse entries were required to be communicated to the
employee and not such entries, which are not considered adverse but
may be below par, if an overall assessment is made by an screening
committee. However, the Hon''ble Supreme Court has laid down a
new principle of law in following terms in paragraph 39:
"39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders."
Since the law has been otherwise all along that only
adverse entries are required to be communicated to a government
servant and since such a decision of the Hon''ble Supreme Court has
given a new dimension, the same can only be considered
prospectively. But if the earlier ACRs recorded against an employee
are not considered adverse, non-communication of the same cannot
become a ground for sitting in appeal over overall assessment made
by the screening committee or the D.P.C. in matters of grant of
promotion. Since in the case of the present petitioner the entries,
which have been made, may be subpar but cannot be said to be
adverse. Even the ACR has now been annexed with the
supplementary counter affidavit filed on behalf of the respondents, to
show the bona fide of the decision making process.
Since this Court is not sitting in appeal over the
decision taken by the authorities empowered with the duty of
recording their opinion about performance of an employee, the Court
is not willing to go into that aspect of the matter and the adjudication
will be required to be made on the basis of the opinion of the
screening committee i.e. the D.P.C. and since the D.P.C. had found
the petitioner ''unfit'', which was found to be so on opening of sealed
cover, benefit of Super Time Scale from retrospective date when
juniors earned that benefit, cannot be granted after superannuation of
the petitioner. The Tribunal to that extent has committed no error of
law in rejecting the prayer for grant of benefit of Super Time Scale.
Coming to the issue of grant of interest on the
DCRG, the respondents in their counter affidavit filed on behalf of the
General Administration Department by the Under Secretary have
taken a stand as under :
" 11) That in O.A. No.0050/0097/2015 the petitioner had claimed for interest on the amount of gratuity withheld in view of the departmental proceeding instituted against him this regard the facts noted below were placed before the Hon''ble CAT for consideration:- (a) As per the respective provisions of AIS (DCRB) Rules, 1958 interest for gratuity will be admissible if its payment is made after three months from the date of superannuation due to administrative lapses and will be withheld until the conclusion of proceedings initiated against the concerned officer. Texts of these provision are as follows :- Rule- 19(A) of AIS (DCRB) Rule, 1958 " If the payment of gratuity or death-cum- retirement gratuity has been authorized after three months from the date when its payment became due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest at the rate prescribed by the Central Government from time to time shall be paid on the amount of gratuity or death-cum- retirement gratuity in respect of the period beyond three months." Rule- 6 (2) of AIS (DCRB) Rule, 1958 ".......... a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under the suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension; but no gratuity or death- cum- retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon." (b) As per Rule- 6 (2) of AIS (DCRB) Rules, 1958 the petitioner''s gratuity was kept undecided till the final conclusion of the departmental proceeding instituted against him. The said departmental proceeding was finally concluded vide, GAD''s order contained in memo No.12053 dated 01.09.2014. Subsequently, sanctioning order of full pension and gratuity was issued expeditiously within 19 days only vide, letter No.1/pen-01/2011-Sa.pra.-13085 dated 19.09.2014. 12) That it is clear from the aforesaid facts that administrative lapses are not involved in this case. Thus, the claim of interest made by the petitioner was rightly rejected through department''s letter No.1/pen-01/2011- Sa.pra.-2637 dated 18.02.2015. This date (i.e. date of the order passed by GAD in course of deciding the petitioner''s claim of interest) has been shown in the judgment dated 08.02.2016 as the date of granting gratuity to the petitioner while it was sanctioned on 19.09.2014."
In view of the factual and legal position, which has
been reproduced above, and also keeping in mind that the pension and
gratuity was sanctioned within two weeks of the closure of the
departmental proceeding, there is no extraordinary delay in grant of
administrative sanction for payment to the petitioner, therefore, even
claim for benefit of interest because of the delay in payment of DCRG
is not entertainable.
An impression was sought to be created before this
Court that there was some kind of mischief, which was deliberately
done by the authorities, to prevent the petitioner from begetting the
benefit of Super Time Scale and, therefore, the departmental
proceeding was initiated just one day prior to the meeting of the
D.P.C.
The counsel for the State filed a chronological list of
dates as to what had transpired in the departmental proceeding and the
same was also taken on record since the same has significance. It
shows lack of bona fide on behalf of the petitioner in cooperating in
an early closure of the departmental proceeding. In fact, he has tried
all tricks, which he could, to avoid an early conclusion of the
departmental proceeding. The court would like to reproduce the
chronological list of dates with the steps taken on those dates with
regard to the departmental proceeding. It is not that the departmental
proceeding was initiated on 5.1.2011. The ground was laid way back
on 3.6.2009 but it was the petitioner who did not cooperate and
avoided, if not evaded assistance. The chronological list of dates are
reproduced herein below for record :
"VERNACULAR MATTER OMITTED"
In other words, the insinuation, which was sought to
be made upon the respondents that there was some kind of sinister
design behind the refusal or rejection of the claim for grant of Super
Time Scale to this petitioner viz- a- viz his other so-called juniors, is a
myth and also imaginary.
In totality, therefore, the Court comes to a
considered opinion that there has not been any miscarriage of justice
in rejection of the O.A. application by the Tribunal. There is no error
either of fact or law which requires rectification in judicial review
under Article 226 of the Constitution of India.
Writ application is dismissed.