AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
Mr. A.K. Bishnoi, Member (A)
The brief facts of the case, as stated by the applicant, are as follows:
The applicant belongs to the SC category and joined the respondent organization in the year 1989 as a Steno Typist. Thereafter, he climbed up in the hierarchy and reached to the level of Deputy Director (Ministerial). On 02.09.2015, he was issued a minor penalty charge sheet and after being given an opportunity of being heard after issuance of the charge sheet, was awarded the penalty of censure on 10.05.2016. Meanwhile, a DPC was convened for promotion to the post of Director (Ministerial) on 4.2.2016 but as proceedings against the applicant were pending at that time, his case was kept in a sealed cover.
Another DPC was held on 21.02.2017 after the expiry of the period of penalty imposed on the applicant in which the applicant was held unfit for promotion though certain officials junior to the applicant were found fit and promoted vide order dated 06.04.2017. They have been impleaded as respondents in the present OA.
Aggrieved by this action, the applicant filed OA No. 1436/2018 challenging the recommendations of the DPC which was dismissed on 11.04.2018 as withdrawn with the liberty to the applicant to challenge the final order passed by the official respondents as also the recommendations made by the DPC.
The facts of the case, as narrated above, are not in dispute.
The applicant through the present OA has challenged the recommendations of the DPC held on 21.02.2017 mainly on the ground that requirements of conformance to benchmark and assessment of merit were not applicable to the applicant in view of the office memoranda dated 03.10.2000 read with 22.07.1997 issued by the Department of Personnel &Training (DoP&T).
In view of the facts and reasons given by the applicant, he has sought the following reliefs:
“(i)Set-aside the recommendation of the DPC dated 23.2.2017 held on 21.02.2017 declaring the Applicant UNFIT on the ground of not having the Bench Mark & Merit without considering the Office Memorandum dated 3.10.2000 and Office Memorandum dated 22.07.1997 which prescribe that for consideration of SC/ST candidates the Bench Mark & Merit will not be applicable for the purpose of promotion and order of promotion dated 6.4.2017 of Respondent No. 2 & 3 juniors to the Applicant.
(ii)Call for the record of the case.
(iii)pass such other and further order as may deem fit and proper.”
Counter replies have been filed by the respondents. The official respondent, namely, DDA, while replying to the statements made by the applicant in his OA, has pointed out that out of the APARs of the applicant for the previous five years, i.e., 2012-2015, the grading was “very good” for one and a half years, “good” for two years, “average” for four months and for the remaining period “NRC” was placed on record. It is also being contended that for the post of Director (Ministerial) which falls in Group A, the benchmark is “very good”.
On the issue relating to benchmark or merit raised by the applicant, it has been contended that it is totally misplaced and unwarranted considering that the applicant was found unfit not because of benchmark or merit but due to his unsatisfactory conduct and performance as recorded in the minutes of the DPC. It has been averred that the DPC after having taken into account all factors relating to the conduct and service record of the applicant has found him unfit.
Respondent nos. 2 and 3 in their replies have also contested the claim of the applicant mainly on the ground that they were found fit on the basis of seniority and merit which was not the case for the applicant who was found unfit.
Sh. Apurb Lal, learned counsel appearing on behalf of the applicant elaborated upon the contentions made in the OA while substantially relying upon OMs dated 03.10.2000 and 22.07.1997 referred to in Para 3 above.
Sh. M.S. Reen, learned counsel appearing for Respondent no. 1, in his arguments forcefully contended that reference to the OMs cited above was entirely misplaced and that these OMs, in no way, dispense with the need to assess the seniority or merit of any candidate belonging to the SC or ST category.
We have carefully gone through the pleadings on record as also the arguments advanced by the learned counsel on both the sides.
For clarity, the relevant portions of the OM dated 22.07.1997 issued by Ministry of Personnel, Public Grievances & Pensions, DoP&T are reproduced below:
“3.It has accordingly been decided to withdraw the instructions contained in this Department’s O.M. Bo. 8/12/69-Estt.(SCT) dated 23/12/70 and O.M. No. 36021/10/76-Estt. (SCT) dated 21.1.1977, in so far as these provide for lower qualifying marks for Scheduled Castes/Scheduled Tribes candidates in departmental qualifying/competitive examinations for promotion. Similarly, the relevant portions of para 6.3.2 of the DPC guidelines circulated vide this Department’s O.M. No. 22011/5/86-Estt.(D) dated 10.4.1989, to the extent that they provide for consideration of Scheduled Castes/Scheduled Tribes candidates without reference to merit and the prescribed “bench mark” , are hereby rescinded.
4.It is clarified that the effect of these instructions is that henceforth there shall be no separate standards of evaluation for candidates of the Scheduled Castes/Scheduled Tribes for promotion, and assessment of all candidates for this purpose will be with reference to uniform standards. Any other instructions of the Government, which provide for lower qualifying marks/lesser standards of evaluation in matters of promotion for candidates belonging to Scheduled Castes/Scheduled Tribes, may also be treated as having been modified to this extent.
5.These instructions take immediate effect.”
Relevant portions of OM dated 03.10.2000 read as under:
“3.In pursuance of the enabling proviso of Article 335 of the Constitution, it has now been decided to restore, with immediate effect, the relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of lower qualifying marks, lesser standards of evaluation that existed prior to 22.7.1997 and as contained in the instructions issued by the Department of Personnel and Training from time to time including OM No. 8/12/69-Estt.(SCT) dated 23.12.1970, No. 36021/10/76-Estt.(SCT) dated 21.1.1977 and para 6.3.2 of the DPC guidelines contained in Department of Personnel and Training’s OM No. 22011/5/86-Estt. (D) dated 10.4.1989. In other words, the effect of these instructions would be that the Department of Personnel and Training’s OM No. 36012/23/96-Estt.(Res) dated 22nd July, 1997 becomes inoperative from the date of issue of this OM.
4.These orders shall take effect in respect of selections to be made on or after the date of issue of this OM and selections finalised earlier shall not be disturbed.”
A plain reading of these OMs clearly indicates that neither in letter nor in spirit can an inference be drawn that the DPC is not supposed to go into the question of seniority or merit of the candidate. At most, relaxation can be given in the standards which are prescribed for general category candidates for the benefit of candidates belonging to SC and ST.
We have also gone through the minutes of the DPC dated 23.02.2017, specific portions of which are quoted below for clarity:
“8.The DPC after taking into consideration the overall performance, the service records with particular reference to the APARs for the preceding five years, the vigilance clearance report and the DoPT guidelines provided in OM No. 36028/21/2003-Estt.(Res.) dated 29.01.2004 regarding some concessions to Scheduled Caste and Scheduled Tribes in regard to posts filled by promotion by Selection posts within Group ‘A’, considered the case of Shri Dinesh Kumar [SC candidate] and owing to following attributes the DPC assessed him UNFIT for promotion to the post of Director (Ministerial) for the year 2017-18:
a)It is seen from the record by the DPC that during the year 2012-13, Shri Dinesh Kumar was posted in several Department but every time he was returned back to the personnel Deptt. as per detail given below:
S.No. Period Place of posting Order/E.O. No. & Date Total days 10. 12.04.12 to 28.05.12 Vigilance Deptt. 529 dt. 09.04.12 57 days 11. 29.05.12 to 06.06.12 Housing Deptt. 765 dt. 28.05.12 07 days 12. 07.06.12 to 12.06.12 Personnel Branch F.1(142)07/T &P/DD’s/41 2 dated 04.06.12 05 days 13. 13.06.12 to 03.07.12 Lands Deptt. 826 dt. 12.06.12 20 days 14. 04.07.12 to 17.07.12 Personnel Branch PS/Dir.(RL) DDA/2011/3 39 dated 04.07.12 13 days 15. 19.07.12 to 27.08.12 Lands Deptt. 1038 dt. 18.07.12 38 days 16. 28.08.12 to 10.03.13 Personnel Branch PS/Dir.(RL) DDA/2012/5 01 dated 23.08.12 192 days (Under posting) 17. 11.03.13 Training Cell 368 dt. 08.03.13 Upto May ‘14 b)During the year 2013-14, the following remarks have been recorded in the APAR placed in his Dossier:
i)Takes too long time to perform & to conclude the work.
ii) Cannot rely upon him for urgent works.
iii) He needs to take initiative. Does require pushing for output.”
c)During the period June’14 to September‘14, the following remarks have been recorded in the APAR placed in his Dossier:
“i)He is non co-ordinated with subordinate or boss.
ii) He creates the problems instead of sorting out.
iii) He did not perform in two cases, one court case & another for nodal officer in N.P.C.
iv)Yes, I suggest to train him properly till he may be able to deal with the Govt. duty.” Owing to the above facts/attributes & considering that out of the 05 years APAR in respect of Shri Dinesh Kumar, only 1 ½ year is Very Good, 02 years Good, 04 months Average and for the remaining period NRC is placed. Shri Dinesh Kumar has been assessed as ‘UNFIT’ by the DPC. The assessment in respect of all the candidates is as under:
| S.No./Sr. No. | Name S/Shri | Recommendations of the DPC |
| 1/200 | Dinesh Kumar S/o Shri Shyam Singh (SC) | UNFIT |
| 2/206 | V.K. Chopra S/o Sh. Amolak Ram Chopra | FIT |
| 3/208 | Anil Sharma S/o Shri Daulat Ram Sharma | FIT |
| 4/210 | Gian Chand Sharma S/o Shri Khubi Ram Sharma | FIT |
It can be seen that the DPC has not made its judgement relating to the fitness of the applicant solely on the basis of his gradings in the APAR. Extensive reasoning has been duly recorded on the basis of which the DPC has come to the conclusion that the applicant in the present OA was found unfit. As a general proposition also, it would be meaningless to constitute a DPC if it was not given the freedom to assess the fitness of a candidate. If that were the case all candidates belonging to specified categories could be promoted mechanically. This, obviously, is contrary to reason and runs against all tenets relating to application of mind.
For the reasons given above, we find no merit in the present OA and the same is accordingly dismissed.
No order as to cost.