1. By present O.A., filed under Section 19 of Administrative Tribunals Act, 1985, applicant, belonging to Central Engineering Services Class-I, 1974 batch, is aggrieved by his non-empanelment to the post of Chief Engineer in Central Public Works Department (hereinafter referred as CPWD) in the panel for the year 2004-05. He seeks direction to respondents to promote him from the date his immediate juniors namely S/Sh. S. Baliga and Vipin Chand were promoted to said grade with all consequential benefits, including arrears of pay and allowances, seniority etc., besides exemplary costs. He also seeks declaration that respondents' action not to promote him to said post merely based on minor penalty of withholding one increment for a period of one year without cumulative effect imposed in May, 2000 and thereby excluding him from the said panel, is illegal, arbitrary and furthermore the said punishment would not stand in his way of promotion.
2. Admitted facts are that applicant was promoted as Superintending Engineer (hereinafter referred as SE) with seniority w.e.f. 31.3.1991.
As per Rules in vogue he became eligible for promotion to next higher post of Chief Engineer (hereinafter referred as CE), a selection post, to be filled from amongst SE (Civil) with eight years' regular service including service, if any, rendered in non-functional selection grade or 17 years' regular service in Group-A posts of service, out of which 4 years' regular service should be in the grade of SE (Civil). Said Rules were amended and as per amended Rules, SE (Civil) with three years' regular service is eligible for promotion. In terms of revised guidelines on procedures to be followed by DPCs under DoPandT O.M.dated 08.2.2003 (Para 3.3), benchmark prescribed for promotion to the post in revised pay scale of Rs. 12,000-16,500 and above, which includes post at the level of CE, continues to be 'very good'. Only those who are graded as 'fit' shall be included in the select panel prepared by DPC in order of the irinter-se seniority in feeder grade.
DPC meeting was held in UPSC on 29.3.2005 for selection of officers for promotion to said grade of CE (Civil), CPWD against ten anticipated vacancies of the year 2004-05. The DPC, after considering relevant records of senior-most eligible officers including applicant herein recommended a panel often officers and also an extended panel of one officer in lieu of officer of serial No. 1 in the panel, who had since retired on 31.1.2005 during the vacancy year 2004-05. Applicant figured at serial No. 8 in the said panel. Based on recommendations of said DPC, Competent Authority approved promotion of six officers, included in main panel and one official in extended panel, vide order dated 05.9.2005. However approval had not been accorded for promotion of applicant as well as two other officials namely S/Sh. D. Hore and V.Subramanian, included in said panel at serial Nos. 2 and 3 respectively.
3. Shri D. Hore was ultimately promoted vide office order dated 23.2.2006 in compliance of order dated 07.09.2005 of this Tribunal in O.A. No. 2265/2004 subject to the outcome of S.L.P. being filed before Hon'ble Supreme Court.
4. Grievance raised in present O.A. is that despite the fact that applicant had attained prescribed benchmark i.e. 'very good' for promotion to the post of CE, he has denied the same, though he was empanelled by duly constituted DPC as well as after vigilance clearance issued by respondent No. 1. Said recommendations were made after due consideration paid to entire material placed on record including applicant's ACRs to the years 1998-99 to 2002-03. In seniority list of SE (Civil), applicant is immediate senior to S/Sh. S. Baliga, Bipin Chand and N.K. Sinha, who have now been promoted by respondents as Chief Engineer, ignoring his just claim. Being aggrieved, he made representation on 09.8.2005, and no response has been received so far.
He had also served North-Estern Region during 1999-2001, for which he was entitled to due weightage as per Rules while considering his case for promotion. He had also acquired higher qualification of M. Tech. in Environmental Science and Engineering from IIT, Delhi in 1997-99.
5. For an alleged lapse committed in the year 1989, while working as Executive Engineer, he was charge-sheeted in the year 1997 and a minor penalty of withholding one increment without cumulative effect was inflicted in May, 2000. Brief background of charge was that: One Shri A.K. Mittal, Superintending Engineer, Calcutta Central, Circle-I, under whose jurisdiction, applicant was working as Executive Engineer, levied a compensation on a contractor for an amount of Rs. 79,632 in one contract and Rs. 19,307 in another contract. Later on, said Shri Mittal asked applicant to return said original Orders by a chit dated 17.07.1989. As the chit was not an official request/document, applicant did not act thereon. However, said Shri Mittal managed to take his original compensation orders in connivance with applicant's dealing assistant, destroyed the same, and also replaced the same with another orders levying compensation of Rs. 1000 and Rs. 1930 respectively. Applicant immediately informed this fact to his superior officer at Calcutta i.e. Zonal Chief Engineer, Sh. D.K. Malhotra. However, applicant had no proof to substantiate the entire episode. As such, no action was initiated by Sh. D.K. Malhotra. On the other hand, due to complaint filed against him, said Sh. A.K. Mittal spoiled applicant's ACR for the year 1989-90. Therefore, he made a representation against adverse remarks to DG (Works), C.P.W.D. and clearly pointed out the misdemeanour of Shri A.K. Mittal as well as fraudulent act on his part on several occasions. However, said representation was rejected. Applicant, thereafter, made another representation in January 1992 and this time he enclosed photocopy of said original orders, which was made available to him by one of his well-wishers.
Ultimately, based thereon, adverse remarks in ACR for the year 1989-90 were expunged. However, in the year 1997, a show cause notice was issued stating that he informed the authorities so belatedly about the matter which caused financial loss to Government exchequer. The said allegation was disputed. Ignoring it, disciplinary proceedings were indeed initiated, which culminated into minor penalty of stoppage of one increment for a period of one year without cumulative effect. Against which, he filed revision petition, on emergence of the fact that actually no financial loss was caused to Government exchequer as the said amount was recorded from contractor, even before the penalty was imposed. However, authorities misguided themselves by inferring that financial loss had been caused to the exchequer due to alleged belated information given by applicant. Said revision petition is still under consideration.
6. Respondents contested the claim laid. We may note that no reply to present amended O.A., filed on 16.04.2007, was preferred by respondents, despite last opportunity granted vide order dated 28.05.2007, Therefore, learned Counsel for respondents made statement on 6th July, 2007 that reply to M.A. No. 1634/2006 for amendment of O.A., filed earlier would be sufficient and be taken into consideration while adjudicating the issue raised in present O.A. In their said reply it was stated that recommendations of DPC held in UPSC on 29.3.2005, were considered by Competent Authority, and promotion of 6 officials, included in the main panel and one officer of the extended panel were approved to the grade of Chief Engineer (Civil). No approval was accorded for promotion in respect of applicant as well as two other officials. In terms of DoPandT's OM dated 19.02.1997, Competent Authority is empowered to disagree with the advice of UPSC in case of appointments by DPC etc. A Government servant has no right to promotion but only the right to be considered for promotion in his turn along with other eligible officers. The recommendations of DPC are advisory in nature and cannot be given effect to unless approved by the Competent Authority. In the absence of approval by the Competent Authority, applicant could not be promoted.
7. We have heard both sides and perused the pleadings besides other materials placed on record, including the original records produced.
8. At the outset we may note that vide M.A. No. 1853/2006, applicant had prayed to stay the operation of promotion order, as well as direction to respondents to keep one post of Chief Engineer vacant till the final disposal of O.A. While issuing notice in said M.A. vide Order dated 23.9.2005, the respondents were direct to keep one post of Chief Engineer vacant.
9. Mr. G.D. Gupta, Ld. Senior Counsel appearing for applicant raised following contentions: (a) Applicant had exemplary service record except for one minor penalty, against which he made representation to DG (Works), and specifically pointed out misdemeanor as well as fraudulent act on several occasions on part of Sh. A.K. Mittal, Superintending Engineer. Applicant's Annual Confidential Report for the year 1989-90 was spoiled by said Sh. Mittal, which was later on expunged.
Based on same incident, minor penalty proceedings were initiated in the year 1997 and in May, 2000 minor penalty of stoppage of one increment for a period of one year without cumulative effect had been imposed. These aspect, as pleaded vide Para 4.13 C-D of O.A. were not denied either in writing or by producing any cogent material and documents.
(b) His specific contention that review petition is pending and no financial loss was caused to the Government as the said amount had already been recovered from the contractor etc., was not even disputed by respondents. From communications dated 5th Oct, 1990 and 8th January, 1992, addressed to DG, Works, CPWD, as well as dt.
31.5.1996 addressed to Chief Engineer in response to show cause notice dt. 19.2.1996, copies of which were produced before us, Ld.
Senior Counsel pointed out specific contentions raised on this aspect. As such the minor penalty proceedings were based on biased act on Sh. A.K. Mittal and no cognizance of the same could be taken.
In the absence of reply from respondents on these aspects, the said contentions are deemed admitted.
(c) As per C & AG O.M. dated 30th August, 1990, available at Para 13, page 96, Swamy's compilation on Seniority and Promotion in Central Government service, 2002 edn., it was clarified that an officer whose increments have been withheld or who has been reduced to a lower stage in the time-scale, cannot be considered on that account to be ineligible for promotion to the higher grade as the specific penalty of withholding promotion has not been imposed on him. The suitability of the officer for promotion should be assessed by the DPC as and when occasions arise for such assessment. While assessing the suitability, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of the general service record of the officer and the fact of the imposition of penalty he should be considered suitable for promotion. However, even where the DPC considers that despite the penalty the officer is suitable for promotion, the officer should not be actually promoted during the currency of the penalty. Said clarification issued in consultation with Depend specifically states that: "After the expiry of period of penalty, the official concerned will be promoted from the same panel in which he was originally empanelled. On this promotion, his pay and seniority in the higher post will be fixed according to his position in the panel from which he is promoted. But the monetary benefit in the higher post will be admissible only from the date of actual promotion." It was contended the aforesaid O.M. is squarely applicable in the facts and circumstances of the case. The penalty imposed on 12th May, 2000 had been considered by the UPSC, and yet he was recommended for promotion based on his service record, which is par excellent except for said unfortunate incident, for which applicant cannot be blamed and made to suffer. Moreover, the said penalty period had already expired by the time his case was considered for promotion.
(d) UPSC/DPC had considered all aspects of the case before making recommendations in applicant's favour. Though Competent Authority i.e. ACC in present case, had a right to differ with the said expert body recommendations, but it should be based on cogent reasons, germane to the issue. Ld. Sr. Counsel further contended that when ACC different with the UPSC/DPC, it did not consult UPSC. Neither the matter was discussed or taken with the said expert body. Denial of promotion to applicant, in the given circumstances would amount to double jeopardy.
(e) What is the effect of such minor penalty?, is also a question to be examined. Citing 1988 Suppl. SCC 669, S.K. Sharma v. Haryana State Electricity and Anr. particularly Paras 6 and 8, contention raised was that denial of promotion on account of penalty, which has already expired, would amount to double jeopardy. It would also mean imposition of another penalty of withholding of promotion, which in fact was never imposed. Both the penalties fall under the Head "Minor penalty" under Rule 11 of CCS (CCA) Rules, 1965. More than one penalty cannot be imposed under the rules and law in vogue.
10. Mr. D.S. Mahendru, Ld. Counsel for applicant, on the other hand, contended that applicant is seeking promotion against the vacancy year 2004-05, though he has been promoted against the vacancy year 2005-06.
No relief has been claimed against the minor penalty imposed. Placing reliance on Co-ordinate Bench, Madras Order dated 17.4.2006 in O.A. No.736/2005, it was contended that said selection has already been upheld and therefore, present O.A. deserves dismissal. We may note two file namely: Applicant's ACRs folder and file No. 30 (11 ) 2003, EC-I, Vol-I, dealing with promotion to the grade of Chief Engineer (C) for the year 2004-2005, were produced for our perusal.
11. This Tribunal vide Order dated 2.8.2007, while reserving present O.A. for Orders, had noted that despite directions issued to produce "all related records of the applicant as well as the records of the DPC and ACC", needful had not been done, and as such the respondents were directed to produce related records complete on all aspects. We may note with concern that despite repeated and unambiguous direction, no records relating to ACC were produced before us. Later, the respondents very conveniently produced the same documents/files which were observed to be incomplete records vide Order dated 2.8.2007. No request either of claiming privilege or otherwise of showing records was made before us. We do not approve such practice on the part of Stale.
12. Accordingly, in law, we were left with no other alternative, except to proceed in terms of the provisions of Indian Evidence Act, 1872.
Provides of Section 114 provides that: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Illustration 'g' thereto is relevant for our purpose which states that: "evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it".
13. The Constitution has created Union Public Service Commission and assigned it various functions outlined under Article 320. UPSC has to be consulted as per Clause 3 of Article 320 on all matters relating to method of recruitment to Civil Services and in making promotions on suitability of the candidate for such appointments/promotions.
Examination of Articles 317-320 makes it evident that Constitution contemplates the Commission to be an independent and effective body outside the Government control. This is an instance of application of basic tenet of democratic Government vis-a-vis diffusion of running power. The idea is not to concentrate the power in the hands of one person, authority or organ. In the light of this Constitutional Scheme, one has to examine whether Government has absolute power to reject, differ or disapprove its recommendations. Union Public Service Commission is an expert body and its function is purely advisory.
Neither Commission's advise is binding upon Government nor can Government act mechanically upon such advice without applying its mind to the matter in question e.g. the recommendations made by it. Hon'ble Supreme Court in Asha Kaul v. State of Jammu and Kashmir , has held that construed in the above light, no rule or law confers an absolute power upon the Government to disapprove or cancel the recommendations made by UPSC. However it added a caveat stating that: Where, however, the Government is satisfied, after due enquiry that the selection has been vitiated either on account of violation of a fundamental procedural requirement ox is vitiated by consideration of corruption favouritism or nepotism, it can refuse to approve the select list. In such a case, the Government is bound to record the reasons for its action, and produce the same before a Court, if and when summoned to do so, apart from placing the same before the legislature as required by Clause (2) of Article 323.
14. Recording of reasons has been held to be essential and right to reason has also been held to be indispensable part of a sound judicial system. Even in administrative matters, giving of reasons is one of the fundamentals of good administration. Failure to give reasons amounts to denial of justice. Hon'ble Supreme Court in 2005 (2) SCC 235 (MMRDA Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority and Anr.) reiterated its earlier judgment namely Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar , wherein Lord Denning's observation on assigning reasons were emphasized. It would be expedient to note excerpts from said para, which reads as follows: Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union 1971(1) All E.R. 1148, observed "The giving of reasons is one of the fundamentals of good administration". In Alexandar Machinery (Dudley) Ltd. v. Crabtree 1974 LCR 120, it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, be its silence, render it virtually impossible for the Courts to perform their appellants function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
15. In M/s. Mahabir Prasad v. State of U.P. and Ors. , Hon'ble Supreme Court took a view that administrative orders affecting the right of citizens has to be treated at the same pedestal as of quasi-judicial authority and the orders so passed must be supported by good and adequate reasons particularly when relevant rules granted a right to appeal to the State Government against the order. The practice of executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons was held to be a negation of the rule of law and which practice has been severely criticized in a series of cases.
Satisfactory decision of a disputed claim may be reached only if it is supported by the most cogent reasons that appeal to the authority.
Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. The aforesaid law, in our respectful view, squarely applies to the facts of the present case.
16. As far as the objection raised about non-maintainability of present O.A. based on co-ordinate Bench Order dated 17.4.2006 in O.A. No.736/2005, is concerned, we may note that neither applicant herein was a party nor these aspects as raised herein, were considered. Said order was passed examining the validity of DPC vis-a-vis the applicant therein only. In our considered opinion the same is not an order in them but in personam. Therefore, we do not find any justification in said contention and accordingly finding the said order clearly distinguishable, the same is overruled.
17. We have given our thoughtful consideration to rival contentions raised by the parties and are of the considered view that applicant's contention that Shri A.K. Mittal, the then Superintending Engineer, spoiled his ACR, which was later expunged and for same incident minor penalty proceeding initiated in 1997 resulted in infliction of penalty of stoppage of the increment for a period of one year, remains unchallenged/ undisputed and uncontroverted. Further more, the review petition filed against aforesaid penalty remains pending even as on date. C & AG O.M. dated 30.8.1990, as relied upon, Specifically prescribes that where increments have been withheld, the said penalty cannot be construed as obstruction/impediment in consideration of an officer for promotion. The only limitation provided therein is that promotion order should be issued after expiry of the period of penalty.
It is an admitted fact that penalty imposed on 12.5.2000 expired after a year and said penalty had been taken into consideration by the DPC held in UPSC while recommending his case for promotion. The effect of imposition of minor penalty has been amply stated and clarified in judgment of S.K. Sharma (supra).
18. It is no doubt true that Competent Authority is at liberty and has discretion not to act upon UPSC's advice. At the same time, it is equally well settled that the discretion is governed by rules and it must not be arbitrary, vague and fanciful, (see S.G. Jaisinghani v.Union of India ) While exercising the discretion,Reliance Airport Developers (P) Ltd. v. Airports Authority of India, , it was observed that: "'Discretion', said Lord Mansfield in R. v. Wilkes, 'when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular'." In the absence of any records produced before us to justify as to on what basis and reasons, applicant was denied promotion despite recommendations made by UPSC, we are unable to locate the exact reasons for respondents action except to guess that there are no valid and just reasons, which could withstand the test of legal scrutiny.Lt. Col.
V.K. Pandey v. Union of India and Ors.
with a situation where because of order of punishment of reprimand, promotion was withheld. Initially the Selection Board was not having the said order of reprimand before it and, therefore, it found the appellant suitable and accordingly he was informed that he would get his promotion in due time. However, a caveat was added in the communication that the promotion shall be subject to continuing satisfactory performance. On being noticed the aforesaid punishment of reprimand, a special review board was called and that fresh input was placed before the Board, as a result of which, he was not found suitable and ultimately could not be promoted. Said action of the respondents was upheld. However, the Hon'ble Court observed that though the punishment of reprimand, which had been recorded in the service record will continue be the part of same, but in future if there is improvement in his performance that can always be reviewed by the authorities. If the facts of present case, and the issue raised are tested in view of aforesaid observations, we would find that penalty order dated 12.5.2000 was taken into consideration by the DPC concerned yet it recommended, and rightly so, for promotion. Under Rule 11 of CCS (CCA) Rules, 1965 penalties are bifurcated into two heads "minor penalties" and "major penalties". Withholding of promotion as well as withholding of increments are two distinct and separate penalties, which fall under the head "minor penalties". It is well settled that more than one penalties cannot be imposed simultaneously. If the penalty of withholding of increment is allowed to operate as affecting his promotion, it would tantamount to inflicting another penalty of withholding promotion, which is clearly impermissible in law. Moreover, applicant had been promoted to the grade of Chief Engineer (Civil) against the vacancies of the year 2005-06, though his claim is (for promotion against the vacancy year 2004-05. In other words, there is an addition of only one more latest ACR and elimination of one year's earlier ACR, while considering his case for promotion against the vacancy year 2005-06. A perusal of applicant's ACR Folder reveals his grading from 1998 onward as follows:01.04.98 to 31.03.99 : No ACR is written as he was on a training course on environmental engineering.01.04.0 to 31.08.01 : No ACR is written as he worked for less than 3 months in different units.01.02.1 to 31.03.04 : No ACR - period being less than 3 months01.04.03 to 24.12.03 : "Very Good"25.12.03 to 31.03.04 : No ACR is written as he had been relieved from concerned project and further he If above aspects and gradations are taken into consideration, it would be amply clear that firing aforesaid period, he maintained his gradations. The gravamen of the misconduct 4$ alleged vide Memorandum dated 26.11.1997 which led to the imposition of the penalty of stoppage of one increment for a period of one year without cumulative effect f5 the same which had been the basis for his ACR for the year 1989-90 which, in any case, ands expunged completely.
18. Taking an overall view of the matter, we observe that no reasons much less than plausible explication have been disclosed and furnished to this Tribunal and, therefore, We have no hesitation to conclude that the Government/Competent Authority, in law and fairness. was found record its reasons for its action in not accepting the expert body commendations, failed to discharge his duty and also failed to produce records despite clear orders.
19. In view of the discussion made hereinabove, we are of the considered view that the impugned action of the respondents is clearly unsustainable m law and the applicant deserves the relief us prayed for. Accordingly, we hold that applicant's non-empanelment to the post of Chief Engineer in Central Public Works Department in the panel for the year 2004-05 is illegal, arbitrary and without any reasons and justification. Consequently respondents are directed to promote him from the date his immediate juniors viz. S. Baliga and Vipin Chand were promoted with all consequential benefits except the arrears of pay and allowances. This exercise shall be complete within a period of three months from the date of receipt of this order. There shall be no order as to costs.