Dr. Dinesh Kumar Singh vs Union Of India & Ors.

By Hon’ble Ms. Manju Pandey, Member (A):-

Learned counsel for the parties are present and heard.

The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:–

The brief facts of the case, as narrated in the Original Application, are that the applicant was initially appointed as ADMO, N.E. Railway Hospital, Varanasi, on 27.08.1996 and was subsequently promoted as Senior Divisional Medical Officer in the Senior Grade (SG) in the pay scale of Rs.37,400-67,000/- with Grade Pay of Rs.8,700/- with effect from 27.08.2009, after completion of the requisite period of satisfactory service, vide order dated 31.01.2011. The applicant became due for promotion to the Senior Administrative Grade (SAG), carrying Grade Pay of Rs.10,000/-, on completion of seven years of service in the Selection Grade, i.e. with effect from 27.08.2016, in terms of Railway Board's E. No.05/2009 dated 07.01.2009. The relevant vacancy year was 2016-2017. The Departmental Promotion Committee (DPC) met on 16.05.2017 and finalized its proceedings on 29.06.2017; however, the applicant's name did not find place in the promotion list issued by the Railway Board on 11.07.2017. Thereafter, the applicant submitted a representation dated 19.07.2017 seeking upgradation of his APAR for the year 2011-2012 and also sought information under the Right to Information Act, 2005 vide application dated 23.10.2017. The information sought was supplied by the Railway Board vide letter dated 10.11.2017 along with extracts of the DPC proceedings. From the said proceedings, the applicant came to know that his case had been considered for promotion to SAG and that, in terms of Railway Board's letter dated 15.12.2015, the prescribed benchmark for such promotion was “Very Good” in each of the preceding five APARs. The DPC had considered the applicant's APARs up to March 2015. While the APARs for the relevant period were graded “Very Good”, except for the years 2010-2011 and 2011-2012, which were graded “Good”, the applicant was not found fit for promotion to SAG on account of his failure to meet the prescribed benchmark. The grievance of the applicant is that the benchmark of “Very Good” in each of the preceding five APARs was introduced only vide Railway Board's letter dated 15.12.2015, whereas the APARs considered by the DPC related to periods prior thereto. According to Central Administrative Tribunal^{the applicant, prior to issuance of the said letter, the benchmark for} promotion was based upon the prescribed point system and the grading of “Good” was not treated as an adverse entry. The applicant has, therefore, questioned the application of the revised benchmark to APARs for the years preceding 15.12.2015. In respect of the APAR for the year 2010-2011, the applicant was posted at Chapra Health Unit and was performing various duties, including maintenance of Accident Relief Medical Equipment (ARME), medical examination of railway employees and attending to the medical requirements of Chapra Railway Station. No complaint regarding cleanliness or sanitation of the railway station or colony was recorded against the applicant by the Reporting or Controlling Authority, nor was any adverse observation in this regard made by the Reviewing or Accepting Authority during the relevant period. In respect of the APAR for the year 2011-2012, the Reporting Officer recorded, inter alia, that the tasks assigned to the applicant were managed well, that sanitation at Chapra Railway Station had improved, that the applicant possessed adequate knowledge as a general medical practitioner and applied the same in his official work, and that he had managed the ARME well. Improvement in clinical work at Chapra Health Unit and marked improvement in sanitation of the station and colony were also recorded. Despite the aforesaid observations, the APAR was graded as “Good”. The applicant's representations seeking upgradation of the aforesaid APARs were rejected as time-barred. He thereafter preferred a review/appeal dated 11.05.2018 seeking review and upgradation of the APARs for the years 2010-2011 and 2011-2012, which was also rejected vide order dated 28.05.2018. The applicant relies upon the Railway Board's letter dated 27.02.2018, whereby a fresh opportunity was provided in certain cases to represent against APAR entries which had become relevant on account of revision of the benchmark under the MACP Scheme. Aggrieved thereby, the applicant has approached this Tribunal by way of the present Original Application.

Per contra, a counter affidavit has been filed by the respondents, stating therein that the applicant’s representations dated 19.07.2017 and 19.01.2018 seeking upgradation of his APAR gradings for the Central Administrative Tribunal years 2011-2012 and 2010-2011 respectively, wherein he had been assessed as “Good”, were submitted after the prescribed period. The APAR for the year 2010-2011 was communicated to the applicant vide letter dated 30.09.2011 and acknowledged by him on 11.10.2011, whereas the APAR for the year 2011-2012 was communicated vide letter dated 25.06.2012 and acknowledged on 21.07.2012. In both cases, the applicant was advised to submit any representation within 15 days of receipt of the APAR, failing which the same would be treated as final. Since no representation was submitted within the prescribed period, the subsequent representations dated 19.07.2017 and 19.01.2018 were rejected as time-barred in terms of DoPT O.M. dated 14.05.2009, circulated by Railway Board vide letter dated 18.08.2009. It has further been stated that the said representations were placed before the competent authority and, upon consideration, were rejected on the ground of delay, vide decisions communicated to the applicant through letters dated 13.10.2017 and 07.02.2018. The subsequent representation/review dated 11.05.2018 was also considered by the Railway Board and, vide letter dated 28.05.2018, it was advised that no further action was required. The same was communicated to the applicant vide letter dated 04.06.2018. It has been stated that there was no provision under the applicable instructions for a second representation or review against the APAR grading. As regards the applicant's consideration for promotion to SAG, in terms of Railway Board's letter dated 07.01.2009, an officer in the Selection Grade of IRMS becomes eligible for consideration for promotion to SAG on completion of seven years of service in the Selection Grade. Vide Railway Board's letter dated 15.12.2015, the benchmark for promotion to SAG was prescribed as “Very Good” in each of the preceding five APARs and was made applicable from the panel year 2016-2017 onwards. The applicant, having been placed in Selection Grade with effect from 31.08.2009, was considered for promotion to SAG in the panel for the year 2016-2017. The DPC considered the APARs for the years 2010-2011 to 2014-2015 in terms of DoPT O.M. dated 16.06.2000. Since the applicant had been graded “Good” in the APARs Central Administrative Tribunal^{for 2010-2011 and 2011-2012, he did not meet the prescribed} benchmark and was not found fit for promotion. The applicant was subsequently considered in the next SAG/IRMS panel, approved on 10.11.2018, wherein the APARs for the period from March 2012 to March 2016 were taken into consideration and the DPC upgraded the grading for the year 2011-2012 from “Good” to “Very Good” for the purpose of assessment. On such assessment, the applicant fulfilled the prescribed benchmark and was found fit for promotion to SAG. The representation of the applicant against an APAR grading was required to be made within the prescribed period and was not dependent upon the benchmark applicable for promotion. The applicant, despite having received the APARs in 2011 and 2012, did not submit any representation within the prescribed period, and no satisfactory explanation for the delay was furnished. The representations were submitted only after the applicant came to know that he had not been included in the relevant SAG panel. The Railway Board's letter dated 27.02.2018 relied upon by the applicant; the instructions were related to grant of benefits under the MACP Scheme to non-gazetted staff, whereas the applicant's case related to promotion under the DACP Scheme applicable to gazetted officers. The said instructions, therefore, have no application to the applicant's case. The APAR for the year 2011-2012 had been assessed as “Good” by the Reporting, Reviewing and Accepting Authorities and no basis for interference with the said assessment had been made out.

In rejoinder, the facts of the Original Application have been reiterated. It is further submitted that the applicant was due for consideration for promotion to SAG upon completion of seven years of service in the Selection Grade and that, prior to issuance of Railway Board's letter dated 15.12.2015, the benchmark for such promotion was based upon the prescribed points system, with “Very Good” being the overall benchmark. By the aforesaid letter, the benchmark was subsequently revised to “Very Good” in each of the preceding five APARs. Furthermore, the said instructions did not stipulate retrospective application of the revised benchmark to APARs which had already been recorded and finalized prior thereto. For next upgradation in the Central Administrative Tribunal SAG for GP-10000/-, DPC proceedings were held; however, the name of the applicant did not figure in the promotion list issued by Railway Board on 11.07.2017 and as such, the applicant moved applications and came to know that, as his earlier five-year ACRs were not as per the benchmark of “Very Good” as per Railway Board letter dated 15.12.2015, his name was not considered. The information as sought regarding the reasons for non-promotion through RTI was provided vide letter dated 10.11.2017. Generally, amendments to rules are not applied retroactively (retrospectively) unless there is a clear indication that the legislature intended such an effect. In the case of Union of India and others vs. Tushar Ranjan Mohanty and others, the Hon’ble Apex Court has held that amendment of rules cannot be changed retrospectively. Aggrieved thereby, the applicant moved a representation on 19.01.2018 as the said entry has become an adverse entry for him. The same was rejected as being time-barred vide order dated 07.02.2018. As regards the delay in seeking upgradation of the APARs, it is submitted that there was no occasion for the applicant to challenge the gradings within the prescribed period when the same were communicated, as the entries had not adversely affected his promotional prospects under the then applicable benchmark. Reliance has also been placed upon the DoPT clarification dated 13.02.2014 concerning consideration of delayed representations against APAR entries, according to which the competent authority could extend the prescribed period where, for reasons recorded in writing, the officer was found to have been prevented by reasonable cause from making the representation within time. Reliance has further been placed upon Railway Board's letter dated 27.02.2018, whereby an opportunity was stated to have been afforded in cases where earlier APAR entries became relevant upon revision of the benchmark under the MACP Scheme. According to the applicant, the same principle ought to have been considered in his case also, and denial of such consideration merely on the ground that his case related to the DACP Scheme was discriminatory and violative of Articles 14 and 16 of the Constitution. It is, thus, submitted that the rejection of the applicant's representations Central Administrative Tribunal^{solely on the ground of limitation, without examining the} circumstances in which the earlier APAR gradings became prejudicial to his promotional consideration, was not justified.

We have heard the learned counsel for both the parties and have also gone through their detailed pleadings.

It is the case of the Applicant that his APARs for the years 2010-11 and 2011-12 were taken into consideration by the DPC which was held on 16.05.2017 and he was not promoted to SAG level under the Dynamic ACP scheme as his APARs for these two years were ‘Good’ and the requirement was ‘Very Good’ in each of the five years.

The benchmark for DPCs was revised by the Railway Board letter dated 15.12.2015 where it was changed from the earlier Very Good (20 points) to Very Good in each of the five years. It is the Applicant’s contention that as per the earlier eligibility, since the overall had to be a Very Good, even the two APARs which were Good would have sufficed as the overall grading in his case would have been a Very Good as his other 3 APARs were Very Good. It is for this reason that he did not represent against the Good APARs. Had he known that the eligibility would be Very Good for all the APARs, he would have represented against the same. The DPC applied the revised benchmark with retrospective effect and therefore he did not get his SAG promotion. The eligibility should have been changed prospectively. His representations after his non-approval for promotion were rejected vide letters dt. 13.10.17 and 07.02.18 which he wants to be quashed in the present OA.

The Respondents have said that the APAR of 2010-11, which was ‘Good’, was communicated to the Applicant on 30.09.2011 with the instruction that in case a representation needs to be preferred against the entries in the APAR, the same be submitted within 15 days of its receipt. The receipt of APAR 2010-11 was acknowledged by the Applicant on 11.10.2011 and since no representation was received within the time period, the same was taken as final. Similarly, the APAR of 2011-12 was communicated to the Applicant on 25.06.2012 Central Administrative Tribunal and acknowledged by the Applicant on 21.07.2012. Since no representation was received against this also, the APAR was taken as final. The Applicant represented against these APARs after about 7 years when he did not find his name in the SAG panel.

The question before us is whether the criteria for eligibility for promotion to the rank of SAG, which was changed only in 2015, could be used retrospectively for the APARs of 2010-11 and 2011-12 by the DPC?

The rules regarding APAR writing and communicating the same to the employees have undergone a drastic change after the Dev Dutt judgment. The DOPT guidelines on Maintenance and Preparation of Annual Performance Appraisal Reports and communication of all entries for fairness and transparency in public administration were issued on 14th May, 2009 vide their letter No. 21011/1/2005-Estt (A) (Pt-II) and these were circulated by the Railway Board vide their letter dt. 18.08.2009. As per these guidelines:

As can be seen, as per the new system prevalent after 1st April 2009, the entire APAR, irrespective of adverse entries or below benchmark entries, is communicated to the employees and a period of representation is given. The Applicant should have represented against his APARs as per the rules in vogue, especially since his APAR was ‘Good’ instead of ‘Very Good’, which was the benchmark. His argument that when the APARs for the years 2010-11 and 2011-12 were communicated to him, the entry of ‘Good’ was neither adverse nor below benchmark under the unamended rules doesn’t appear to be correct, as the overall benchmark grading even in the earlier rules was ‘Very Good’ with 20 points. The argument that an officer possessing ‘Good’ entries could easily fulfil the overall benchmark of securing 20 points by getting Very Good or Outstanding in the other years is well taken, but the fact remains that what is the grading one would get in the coming years cannot be predicted, so when as per rule the APAR grading is communicated and time is given to represent, the grading given should have been represented against, especially as it was Good and the overall benchmark was Very Good.

The cases cited by the applicant in support of his case are that of this Tribunal in OA No 330/01482/2017 (Rajendra Kumar Shukla v UOI &others) decided on 06.12.2017 and OA no. 170/00727/2016 dt 20.01.2017 (Ramasubbaiah H vs Railway Board). However, in both these cases, the applicants were in JAG grade and had to be promoted to NFSG Grade, the benchmark for which was ‘Good’ earlier and was changed to’ Very Good’ later. However, in the present case, the benchmark even in the earlier rule was overall ‘Very Good’ and was changed to ‘Very Good’ in all the years later on. In the present case, if the applicant’s APARS for the last two years were Good, it was understandable that the Applicant did not represent as he thought that he would meet the overall Very Good criteria but in this case the APARs for 2010-11 and 2011-12 were Good and the applicant couldn’t have predicted his APARs for the coming years that they would be Very Good/Outstanding making him meet the eligibility criteria.

The counsel for Applicant in his written submission has informed that his APAR for 2010-11 was Good (3 points), of 2011-12 was also Good (3 points), 2012-13 was Very Good (4 points), 2013-14 was again Very Good (4 points) and 2014-15 was also Very Good (4 points). Even if his case is considered keeping the old criteria in view, the total points are still 18 whereas the eligibility was Very Good (20 points), as informed by the Applicant himself.

The Applicant has further said that the DPC for the panel year 2016-17 was delayed by more than one year beyond the prescribed schedule and when the DPC is delayed, the latest available APARs up to March 2016 ought to have been taken. For the period 2015-16, the Applicant was awarded Outstanding grading. If this APAR had been considered, he would have been entitled to promotion even under the strictest evaluation. However, the DOPT Rule in the matter of consideration of Central Administrative Tribunal^{APARs is very clear and has been clarified in DOPT OM No.} 22011/9/98-Estt(D) dt. June 16, 2000. The OM clearly indicates that ‘only such ACRs should be considered which became available during the year immediately preceding the vacancy/panel years even if the DPCs are held later than the schedule prescribed in the Model Calendar. In other words, for the vacancy/panel year 2000-01, ACRs up to the year 1998-99 are required to be considered irrespective of the date of convening of DPC.’ So for the vacancy year 2016-17 which is the DPC vacancy/panel year of the Applicant, APARs up to 2014-15 have to be considered as per rules on the subject, which was taken correctly by the Respondents.

The Senior Administrative Grade is a senior position of Government of India and the change in APAR grading eligibility would have been made to make the selection process better and more stringent for the higher posts. It is not the case here that APARs which have not been communicated have been used or the rules of the game have been changed after the selection process has commenced. The APARs were communicated and time for representation had been given to the Applicant. The issues raised by the Applicant now in his representation about the grades given to him should have been raised at the right time. The rules regarding communication of APARs were changed from 2009 onwards and the change has been made for ensuring transparency and to give an opportunity to officers to see their APARs and, if they are not satisfied with the same, to represent immediately against it and not wait for the DPC result and then represent.

In view of the above discussion, we find no merit in the case and the Original Application deserves to be dismissed and is hereby dismissed.

All pending MAs, if any, are also dismissed. No order as to costs.