1. The applicant to this O.A., has prayed for issue of directions to the respondent nos. 1 to 3 for quashing of the impugned order of the Railway Board no. 727-E/1461E (i)(a) dated 7.9.98 (Annexure-4 to the O.A.) by summoning the original records containing the proceedings of the selection committee and the ACRs of the applicant for eight years from 1990-91 to 1997-98. A further prayer is for issue of directions to the respondents Nos. 1 to 3 for reviewing the applicant's claim for promotion to Senior Administrative Grade (hereinafter referred to as SAG) w.e.f. 12.3.98 i.e. the date on which his immediate juniors (respondent Nos. 4 and 5) were promoted, with all consequential benefits of seniority, salary etc. It has also been prayed that the respondents be directed to place the applicant at Serial No. 8A of the impugned promotion order dated 12.3.98 (Annexure-1), that is below Shri P.C. Gajbhiye and above Sri Deepak Gupta. Lastly, it is prayed that all the unfavourable/adverse entries in the ACRs of the applicant be quashed, so that his future promotional prospects are not adversely affected.
2. Briefly stated the facts are that as a result of the SCRA examination of 1973, the applicant joined on 14.2.74 as a Member of Indian Railway Service of Mechanical Engineers (hereinafter referred to as IRS-ME). The applicant was given the junior Administrative Grade on 22.12.86 and selection grade on 1.7.90. He was however, not empanelled for promotion to the Sr. Administrative Grade (SAG) by the Selection Committee which approved on 28.2.98 and on 10.11.98, the panel of officers for promotion to SAG, as he was not found fit for empanelment in the SAG. It is stated that for promotion to the SAG, the ACRs upto the year 97-98 were relevant as the Selection Committee approved the panel on 28.2.98 and subsequently on 10.11.98. In response to the panel approved by Selection Committee on 28.2.98, 7 more officers junior to the applicant were promoted to the SAG Grade.
3. It may be stated here that by order dated 14.9.2000 issued by the Railway Board, the applicant has been promoted to officiate in Senior Administrative Grade in the Northern Railway. Copy of this order is annexed to M.P. No. 3169/2000 filed by the applicant and also to M.P.No. 2513/2001 filed on behalf of the respondents. The promotion of the applicant has however, been made with prospective effect and not with effect from 12.3.98, the date on which his juniors (respondents No. 4 and 5) were promoted. Accordingly the relief prayed in this O.A. for promoting the applicant retrospectively from the date on which his juniors were promoted with all consequential benefits survives.
4. It is not disputed that the suitability for promotion to SAG is to be assessed on the basis of service record of an officer with particular reference to ACRs of the five immediately preceding years.
It is also not disputed that the Selection Committee is not guided only by the over all assessment made by the superior authorities but the selection committee will make its own assessment of the performance of the candidates in the zone of consideration on the basis of the ACRs. There is also no dispute that the bench mark grading for promotion to SAG level is very good. It therefore follows that the ACR entries which even though not adverse could be considered as unfavourable despite being categorised as good or average. It is also not in dispute that the promotion to the SAG level is based on criterion of merit with due regard to seniority. As per para 209D of IREC Volume I appointments on these posts are made on the basis of selection based on merit.
5. In this case confidential records were summoned by this Tribunal which were produced by the respondents for perusal and scrutiny and have been retained till the disposal of the O.A.6. The case of the applicant is that though he was found fit for promotion in the selection grade on 1.7.90, he has been ignored for promotion to the SAG level, whereas Sri Deepak Gupta and Sri S.K. Sood who were immediately junior to the applicant were promoted on 12.3.98 in pursuance of the recommendations of the Selection Committee which approved the panel on 28.2.98. Thereafter as stated above, 7 more officers junior to the applicant were promoted to the SAG.Subsequently, between 27th September, 2000 and 6th November, 2000, nine more officers junior to the applicant were promoted. The applicant was, however, as stated earlier, promoted to SAG level on 14.9.2000 although he was not given the desired posting of ADRM.7. The records summoned were perused by us and on a perusal of the records we find that the promotion of the applicant was not withheld on account of the existence of sealed cover. The promotion of the applicant to SAG level was not given by the Selection Committee which approved the panel on 28.2.98 and on 10.11.98 on the basis of his performance as reflected from his ACRs. 8. According to the applicant since the bench mark for promotion to SAG level is very good all the ACRs which are good or average should have been considered as unfavourable and should have been communicated to him. Similarly, all the ACRs down graded by the reviewing or accepting authority as good or average from very good should also have been communicated to him. It was argued that since the ACRs grading him as good or average were never communicated, these ACRs could not have been considered by the Selection Committee for by passing him in promotion to SAG level. Reference was made in this regard to the circulars of the Railway Board issued on different dates such as 26.9.89, 20.1.88, 7.3.90, 8.1.91, 12.8.93, 20th October, 1993, 5.5.95, 28.8.96. Besides reference was also made on behalf of the applicant to para 1607, 1608, 1609, 1610 and 1611 of the Indian Railway Establishment Code Volume II (hereinafter referred to as IREC). Reference has also been made on behalf of the applicant to certain circulars of the Department of Personnel and Training annexed with the O.A. such as O.M. dated 20.5.72, 10.3.89, 10.4.89, 20.6.89 and 11.5.90. It was submitted on behalf of the applicant that as per these instructions and as per the provisions of IREC Volume II no cognizance can be taken of the adverse entries recorded in the ACRs if such entries have not been communicated. Similarly the ACRs graded below the bench mark also have to be communicated and unless such ACRs are communicated, they cannot be considered by the Selection Committee. Reference was made on behalf of the applicant to the following decisions : 1. K.K. Misra v. Union of India and Ors., O.A. No. 1104/96 decided by Allahabad Bench of the Tribunal on 6.11.97= 1989( 1) SLJ 655 (All.) (CAT).U.P. Jal Nigam and Ors. v. Prabhat Chand Jain, 4. Kripa Shankar Shukla v. State of U.P. and Ors., 1993(3) UPLBEC 2399.
5. Sukh Dev v. Commissioner Amarawati Division, 1996 SCC (L&S) 114= 1996(2) SLJ 3 (SC).State of U.P. v. Yamuna Shankar Misra and Ors., 1997 (4) SCC 7=1997 (2) SLJ 121 (SC).Gurdial Singh Fijji v. State of Punjab, 1979( 1) SLR 804= 1979 SLJ 299 (SC).
9. On behalf of respondents the basic facts as stated in paragraph No.3 to 5 have not been disputed. It was stated on behalf of the respondents that the selection to SAG level is based on merit as provided in para 209 D of IREC Volume I. According to the respondents the applicant was found not suitable for promotion by the selection committee which approved the panel on 28.2.98 and on 10.11.98. The applicant was accordingly ignored for promotion to SAG level. Further it was argued that the mere fact that the applicant was promoted to the selection grade in his turn does not give him a vested right for promotion in the SAG. It was submitted in this regard that the parameters for giving promotion to the selection grade are not the same as those for giving promotion at the SAG level. The applicant might have been performing well to justify his promotion to the selection grade but his performance may not be rated as good enough to promote (sic) level of SAG. The other officers, some of whom junior to the applicant were found fit for promotion and satisfied the bench mark of very good in their ACRs were given promotion. It was also submitted that an officer only has the right for being considered for promotion and the applicant was duly considered by the Selection Committee but having not been found suitable was not empanelled. Reliance was also placed on behalf of the respondents on the letter of Railway board dated 26.9.89 (RI to the CA) which lays down the procedure for promotion to Administrative Grades in the Railway Services.
10. As a matter of fact the main thrust of arguments on behalf of the respondents is three fold. The applicant according to the respondents was not selected on the basis of his performance as reflected in his ACRs. The performance of the applicant was below the bench mark and hence he was not empanelled for promotion by the selection committee.
The relevant ACRs of the applicant did not contain any adverse remarks and hence the remarks in the relevant ACRs were not communicated to the applicant. The remarks on the basis of which the ACRs were graded below bench mark as good or average were not required to be communicated as per existing rules. Reference in this regard was made on behalf of the respondents to the following decisions :P.P. Srivastava v. Union of India and Ors., (OA No. 412/92) decided by Patna Bench of CAT. (2) H.C Narang v. Union of India, (OA No. 2775/92) decided by Principal Bench of CAT. (3) C V. Pallam Raju v. Union of India, (OA No. 777/93) decided by Hyderabad Full Bench of CAT. (4) Manohar D. Halakar v. Union of India, (OA No. 213/92) decided by Mumbai Bench of CAT.R.S. Dash v. Union of India, (6) Tajender Singh v. Union of India, 1988(6) ATC 666=1988(2) SLJ 145 (PB-ND) (CAT).State Bank of India v. Mohd. Myuddin, (1987) 4 SCC 486=1987(3) SLJ 61 (SC).
(10) Maj. Gen. IPS Dewan v. Union of India, (1995) 3 SCC 383= 1995(3) SLJ 135 (SC).Union of India v. P.C. Misra, (1994) 26 ATC 71^=1994(1) SLJ 165 (SC).State of M.P. v. Srikant Chaphekar, 1992(4) SCC 689=1992(3) SLJ 73 (SC).Anil Katiyar v. Union of India, 1997(1) SCC 280=1997(1) SLJ 145 (SC).
11. We have carefully considered the submissions made on behalf of the parties. The only issue for consideration in this case is whether the ommision of the applicant's name from the select panels approved on 10.2.98 and 10.11.98 for promotion to SAG level was warranted on the basis of his ACRs. For this purpose the relevant ACRs of the applicant are for the years 1992-1993 to 1997-98. The following table would give an idea of the ACRs of the applicant for the years 1992-93 to 1997-98 : Not fit by Reporting Officer Fitness not recorded by Rev. and Accp.
Authorities.
12. The above table shows that the applicant has been considered fit for promotion to SAG by all the authorities who wrote his ACRs for the years 95-96 and 97-98. This above table also shows that though the grading given in the ACR for 96-97 is very good, the reviewing authority has recorded adverse remarks in Col. 3 of part V of the ACR to the effect that the applicant managed to raise too many controversies and hence he was not considered fit for handling independent charge of a shop or division. The ACRs for the years 93-94 and 94-95 have been graded as good and average respectively. The ACR for the year 94-95 graded as average also contains adverse remarks in coloum 3 of part IV to the effect that the 'performance of the applicant could have been better if he had exerted and properly applied himself with seriousness'. There is no indication in the records to show that the adverse remarks given in the ACR for 94-95 and in the ACR for 96-97 were communicated to the applicant and no directions in this regard were given by the accepting authority. The ACR for the year 93-94 which was graded as good and hence was below the bench mark was also not communicated to the applicant. Besides apart from the ACRs for the year 95-96 and 97-98 in all the other ACRs, the applicant has not been considered as fit for promotion by the reviewing and accepting authorities. Since the adverse remarks recorded in the ACRs for the years 94-95 and 96-97 were not communicated to the applicant, instructions issued by letter dated 20.1.88 and 8.1.91 cannot be said to have been followed.
13. It will be useful in this regard to refer to the relevant extracts from the Railway Board's letter dated 8.1.91 and 20.1.88. Instruction dated 8.1.91 provides as under :- "Occasionally the reviewing authorities also declare in officer unfit, without mentioning the reason thereof. To do justice to the reportee officers not found suitable, it is necessary that the reasons should be adduced in the relevant column of the report form and the short comings, If any, are brought to notice of the officer or appropriate Counselling is done, so that the officer is able to improve upon his performance." Likewise the relevant extracts from letter dated 20.1.88 are reproduced below :- "In regard to communication of adverse remarks, it has been decided that unfavourable entries will be conveyed to the Reporting Officer in writing at the express approval of the Accepting Authority within one month of receipt, after the completion of the report," Besides a perusal of the proforma prescribed by the Ministry of Railways for writing ACRs contains certain instructions, Instruction No. 6 of the said proforma provides that performance appraisal should be a joint exercise between the officer reported upon and the reporting officer. Instruction No. 9 of the said proforma prescribed for writing character rolls provides that since performance appraisal is a tool for human resource development, the reporting officer and officer reported upon should meet during the course of the year at regular intervals to review the performance and to take corrective steps. It is necessary to refer to the letter of the Railway Board No. 96/289-B/Secy./Admn. dated 28.8.96. Relevant extracts of this letter are reproduced below : "Perusal of a number of ACR's has shown that even now, there are instances of officers being declared unfit for promotion to the next grade, without any specific remarks in the report pointing to the fact that the officer is not suitable for promotion. This is particularly noticed in cases of officers who are graded as 'Good'.
It is reiterated that if an officer is not considered suitable for promotion to the next grade, such a grading should be supported by adequate remarks in the body of the report pointing to some short comings in the officers performance rendering him unfit for promotion. Obviously in such cases, the relevant remarks which would be considered as adverse will have to be communicated to the officer, to enable him to improve his performance.
The extracts from various instructions of the Railway Board reproduced above clearly show that the adequate reasons are to be recorded in case an officer has not been considered fit for promotion to the higher grade. Instruction dt. 28.8.96 clearly provides that the reasons for considering an officer not fit for promotion should be supported by adequate remarks particularly in cases of officers who are graded as 'good'. The tabular statement in para 12 above clearly shows that the applicant was not considered fit for promotion in the years 92-93, 93-94, 94-95 and 96-97 but no reasons were recorded in the years 92-93 and 93-94 showing why the applicant was not considered fit for promotion. As already discussed above in the years 94-95 and 96-97 adverse remarks were also recorded which were never communicated to the applicant. Certain other instructions referred to above in paragraph 9 also provide that adverse remarks must be communicated and if not communicated, they cannot be taken into consideration for superseding an officer. Thus the applicant's supersession to SAG level was not inconformity with the instructions issued by the Rly. Board.
14. We have perused the judgments cited on behalf of the respondents listed 'X' above in para 11 which are not applicable in this case. The applicant was given adverse remarks in the ACRs for the years 94-95 and 96-97 which were never communicated to him. Thus the adverse remarks remained on ACR dossier of the applicant.
15. Main question therefore, in this case is whether the applicant's supersession was justified in view of the fact that the adverse remarks were never communicated to him. In none of the decisions cited on behalf of the respondents, the Courts/tribunals have taken the view that an officer can be superseded without communicating the adverse remarks recorded in the relevant ACRs. Since no such view has been taken in any of the decisions cited on behalf of the respondents listed in paragraph No. 11, none of the decisions cited on behalf of the respondents would apply to the facts of the present O. A. The other issue for consideration in this case is whether gradings of good and average in the ACRs which are below the bench mark of very good should have been communicated to the applicant to enable him to make an effective representation. In some of the decisions cited on behalf of the respondents such as in the case of V. Pallam Raju (supra) and in the case of Manohar D. Halakar (supra), it was held that an average entry in the ACR cannot be considered as adverse and hence need not be communicated, although the same can be taken into account by the Selection Committee for determining an officer's suitability for promotion. However, subsequent decisions in a number of cases have taken a view contrary to the one taken in the case of V. Pallam Raju (supra). In certain other cases cited on behalf of the respondents such as in the case of R.S. Dass (supra), Union of India v. Mohan Lal Kapoor (supra), the apex Court took the view that where merit is the main criterion for promotion, the selection of juniors would not amount to supersession of the senior officer who has not been found fit on a comparative assessment of inter-se merit of the senior vis-a-vis juniors who have been found fit for promotion. In some other cases relied upon by the respondents such as in the case of SBI v. Md.
Myuddin (supra), in State of Madhya Pradesh v. Srikant Chephekar (supra), UPSC and Ors. v. Surendra Prasad Singh (supra), and Anil Katiyar v. Union of India (supra), the Hon'ble Supreme Court took the view that the recommendations of the selection committee should ordinarily not be interfered with by the Courts unless the same is found to be vitiated by malafides, bias and is arbitrary. The apex Court held in these cases that the Courts/Tribunal cannot assume the functions of the DPC for evaluating the service records and directing promotion on that basis. It will be seen that in the above decisions, the question of supersession of an officer without communicating the adverse remarks in his ACRs was not involved. The question involved in the above cases decided by the Apex Court was also not whether an average or good grading should be communicated even though the said ACRs did not contain any adverse remarks. Thus all the decisions cited on behalf of the respondents are clearly distinguishable on facts and hence would not be applicable in the case of the applicant to the present O.A.16. In support of the contention that adverse remarks recorded in the ACR cannot be taken into account unless they are communicated, strong reliance was placed on behalf of the applicant on the decision of the Hon'ble Supreme Court in Gurdial Singh Fijji v. State of Punjab, 1979(1) SLR 804. The relevant extracts from the decision are reproduced below ; "The principle is well settled that in accordance with the rules of natural justice, an adverse report in the confidential report cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned." 17. The above principle was relied upon by the apex Court in the subsequent decision in Amar Kant Choudhary v. State of Bihar, AIR 1984 SC 531. Likewise Allahabad High Court in the case of Kripashankar Shukla v. State of U.P. and Ors., 1999(3) UPLBEC 2399 observed as under :- "An uncommunicated adverse remark cannot as a general rule be acted upon by the employer to the prejudice of the employee. The rules and administrative instruction generally put an obligation on the authorities to communicate the adverse remarks to the employee to enable him to make a representation. Even if the rules or administrative instructions are silent on this aspect, the principles of natural justice require such a communication".State of U.P. v. Yamuna Shankar Mishra and Anr., (1997) 4 SCC 7, the Hon'ble Supreme Court made the following observations :- "Before framing an opinion to make adverse entries in confidential reports, the reporting/reviewing officers should share the information which is not a part of the record with the officer concerned. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of judgment, conduct, integrity or corrupt proclivity."Sukhdeo v.Commissioner Amravati Division, (1996) SCC (L&S) 1141. The Hon'ble Supreme Court in U.P. Jal Nigam and Ors. v. Prabhat Chand Jain and Ors.
(supra) took the view that if the grading in the ACR is toned down from very good to good that may not ordinarily be an adverse entry since both are positive gradings. The apex Court however held that the authority toning down the grading should record reasons for such down grading and inform the official concerned of the down grading in the form of an advice. The apex Court further observed as under:- "Even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be quantitatively damaging may not be true".
20. Thus the apex Court in the case of U.P. Jal Nigam took the view that a positive entry like good may damage the promotional aspects of an officer and hence needs to be communicated. In the case of Udai Krishana v. Union of India the Allahabad Bench of this Tribunal, observed as under :- "We are inclined to agree that a good or average grading in the ACR though not perse adverse would assume the character of adverse remarks in the context of the requirement of bench mark of very good to qualify for empanelment for promotion".
21. The Allahabad Bench of this Tribunal in the case of Udai Krishana also distinguished the decision of Patna Bench in the case of B.P.Singh v. Union of India, (1994) 28 ATC 601. In the case of Udai Krishana, the application was allowed and the respondent was directed to communicate the adverse remarks for the year 1990-91 and the down grading of the ACR from very good to good by the accepting authority for the year 1989-90 within a period of one month. It was also directed that the representation if any filed by the applicant for expunging the adverse remarks be disposed of within a period of two months and further that in case the adverse remarks/grading are modified as a result of the applicant's representation, a review DPC be held to consider the applicant's case for promotion. A similar view was taken by the Bangalore Bench in the case of Smt. G. Chenkamalam v. Union of India, 1998(2) SLJ 334 (Bangalore) (CAT). In a recent judgment delivered by the Bombay Bench of this Tribunal in Charan Singh Azad v.State of Maharashtra, (supra), it was held that a grading which was below the bench mark, amounts to an adverse ACR and hence is required to be conveyed. It was also held that down grading of an entry to below the bench mark by the reviewing/accepting authority is also required to be conveyed as such down grading is likely to adversely affect the promotional prospects of an officer. In the case of Charan Singh Azad, the Bombay Bench of this Tribunal duly considered the decision in the case of Udai Krishana delivered by the Allahabad Bench of this Tribunal and in the case of G. Chankamalatn of the Bangalore Bench of this Tribunal. The decision of the Bombay Bench of this Tribunal in the case of Charan Singh Azad (supra), decision of the Allahabad bench of this Tribunal in the case of Udai Krishana v. Union of India (supra), and of the Bangalore Bench of this Tribunal in the case of G. Chankamalam v.Union of India were considered in the case of Ram Babu v. Union of India by the Bombay bench of this Tribunal. In its decision delivered on 31st March, 2000, after considering these cases and a number of other cases, the Bombay bench in the case of Ram Babu v. Union of India, 2001(2) SLJ 9 (CAT) held that a grading below the prescribed bench mark may amount to an adverse entry as it will definitely affect the promotional prospects of an officer. The Bombay Bench of this Tribunal further held that the grading which is less than the prescribed bench mark should not be acted upon unless the said entry is communicated to the officer concerned. Relying on the decision of Allahabad Bench in the case of Udai Krishna (supra) and of the Bangalore Bench in the case of G. Chankamalam (supra), the Bombay Bench of this Tribunal in the case of Ram Babu v. Union of India directed that the competent authority shall communicate the adverse entries and gradings below the bench mark to the applicant for each year separately and the applicant shall be allowed to represent against such ACRs. It was further directed that in case the representation of the applicant is accepted, his case for promotion shall be considered by a review DPC. It was further directed that if the representation of the applicant is rejected then the question of reconsidering the applicant for promotion by a review DPC will not arise.
22. We have already noted above in paragraph No. 4 that the applicant has since been promoted to SAG level by order dated 14.9.2000. The promotion of the applicant has been given prospective effect and therefore his relief for promotion w.e.f. 12.3.98 when officers junior to him were promoted allowing all consequential benefits of seniority, salary etc. still survives.
23. Further the contention of the applicant that since he has been promoted to the SAG subsequently by order dated 14.9.2000, he should be given posting as ADRM is devoid of merit and hence is not acceptable.
The submission made in this regard that by orders dated 27.9.2000, 5.10.2000 and 10.10.2000, certain officers promoted to the SAG level have been given posting as ADRM and therefore, the applicant should also be given posting of ADRM does not carry any force. This is because the claim for promotion is to a particular grade and cadre. No officer on promotion to a higher grade can as a matter of right demand a particular posting. Therefore the claim of the applicant for posting as ADRM on promotion to SAG level is rejected. It is entirely for the railway administration to consider giving whatever posting is suitable for the applicant at a given point of time.
24. Following the decision of the Allahabad Bench of this Tribunal in the case of Udai Krishan (supra), the decision of the Bangalore Bench in the case of Smt. G. Chankamalam v. Union of India (supra) and the latest decision of the Bombay Bench of this Tribunal delivered on 31st March, 2000 in the case of Ram Babu v. Union of India (supra), we direct that the respondents shall communicate to the applicant within one month of the receipt of this order the adverse remarks recorded in his ACRs for the years 1994-95 and 96-97. We also direct the respondents to communicate to the applicant within the same period of one month all the gradings of average and good given to him for the years 92-93 and onwards which are below the bench mark grading of very good. The applicant may thereafter, make a representation against the adverse remarks and against the gradings which are below the bench mark of very good within a period of one month from the date on which the adverse remarks and gradings below the bench mark are communicated to him. The respondents shall consider the representation of the applicant, if made, and take a decision thereon within a period of two months from the date on which the representation of the applicant is received. In case the representation of the applicant against the adverse entries and against the gradings of below the bench mark is accepted, a review DPC shall be held within a period of two months from the date on which the representation of the applicant is accepted and the applicant shall be considered for promotion to the SAG level by the review DPC w.e.f. 12.3,98 i.e. the date on which his immediate juniors were promoted. If on such reconsideration by the review DPC, the applicant is found fit for promotion, he will be entitled to all the consequential benefits.