Judgment:
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
The question involved in this case is as to what is the procedure for consideration for promotion in a case where the ACRs for a few years are not available.
2. Facts Capsule : The applicant, who had joined the respondent No. 1 in 1992 as a Lecturer-cum- Instructor, is the 2nd senior most Lecturer while respondents No. 6 and 7 are junior to the applicant. Vide Annexure A-3, there were three vacancies for the post of Senior Lecturer cum Senior Instructor and the Departmental Promotion Committee was convened for selection purposes on 09-07-2010. It is the case of the applicant that when the applicant was taking class, she was called by the DPC members and was told that some annual confidential reports in her case are not available. According to the applicant the self appraisal reports have all been submitted. Had it been not so, reminders would have been sent by the administrators and no such reminders were received by the applicant. However, vide Annexure A-1, certain promotion orders have been issued and the applicant's name does not figure in. Hence, the applicant had filed a representation dated 02-08-2010 vide Annexure A-4. This was replied to by the respondents vide Annexure A-2 stating as under:-
"Since you had not submitted our self appraisals as required for the years 2004-05, and 2007-08, your ACRs for these years were not available for scrutiny by the DPC to judge your merit and suitability for promotion. To learn for itself as to your constraints/reasons for not submitting the self appraisals as required the DPC has called you in person for an interview. Although you have accepted your default before the DPC and regretted for not submitting the self appraisals, the DPC could not find your reasons sufficiently justifiable for non submission of the self appraisals. In the absence of the ACRs, the DPC decided not to consider your case for promotion to the post at present and accordingly recommended the names of the other 3 candidates based on their inter-se seniority, eligibility and past performance as reflected in the ACRs for promotion. Based on the recommendation of the DPC duly approved by the Chairman, Board of Governors, they have been promoted to the available 3 posts of Senior Lecturer cum Senior Instructor accordingly."
3. The applicant has thus, filed this O.A. seeking the following relief(s) -
(a) To quash Annexure A-1 to the extent it grants promotion to the juniors of the applicant in preference to her.
(b) To quash Annexure A-2.
(c) To declare that the applicant is entitled to be considered for promotion as Senior Lecturer-cum-Senior Instructor in preference to her juniors and to direct the respondents to grant the applicant promotion as Senior Lecturer-cum-Senior Instructor with effect from the date of promotion of her juniors with all consequential benefits including seniority and arrears of pay abnd allowances
4. Respondents have contested the O.A. Their reply mainly contained as to what has been stated in Annexure A-2 reply, a part of which is extracted above. The difference, if any, is to the extent that whereas they have in their communication stated that the ACRs are not available for 2004-05, and 2007-08, in the counter they have added one more year 2005-06.
5. The applicant has filed his rejoinder as well.
6. Counsel for the applicant argued that in fact the self Appraisals were sent to the authorities though they deny having received. In any event, assuming without accepting that these have not been sent, in the absence of the self appraisal the department cannot completely omit to consider the case of the applicant for promotion. A detailed procedure has been prescribed to deal with cases where self appraisal is not forthcoming. In this regard, the applicant has referred to the following portion of the order of the OM dated 23.9.1985 (vide page 55 of Swamy's book on 'Seniority and Promotion' (2006) Edition:-
2. In regard to Item 2 in the time schedule, it is clarified that a reporting officer should not wait till the expiry of the time limit for self appraisal of the officer to be reported upon. After the expiry of the first week, if self appraisal is not received by that time, the reporting officer should take it upon himself to remind the officer to be reported upon in writing, asking him to submit the self appraisal by the stipulated date. It should also be made clear in the reminder that if the officer to be reported upon fails to submit the self appraisal by the stipulated date, the report will be written without self appraisal. If no self appraisal is received by the stipulated date, the reporting officer can obtain another blank CR form and proceed to write the report on the basis of his experience of the work and conduct of the officer reported upon. While doing so, he can also point out the failure of the officer reported upon to submit his self appraisal within the stipulated time.
7. It shall be the duty of the Administration or CR Section/Cell to keep a regular watch on the progress in the completion of CRs at different stages. If no intimation is received from the reporting officer regarding the submission of the CRs by him to the reviewing officer within 5 days after the expiry of the stipulated date for completion of his part of the CR, the matter should be taken up immediately with the reporting officer so that the report is submitted by him to reviewing officer without any further delay. Similar action should be taken if the complete report is not received from the reviewing officer. Any delay on the part of the reporting/reviewing officer, in spite of their being reminded as above, should be brought to the notice of the reviewing officer/officer superior to the reviewing officer, as the case may be.
7. Counsel for the respondents was earlier directed to produce the ACR dossiers of the applicant and the same have been produced. The counsel argued on the same lines as in the counter.
8. Arguments were heard and documents perused. The ACR Dossiers contain the ACRs for the period 2010-11, 2008-09, 2006-07, 2003-04, 2002-03 and certain earlier years' ACRs.
9. Instructions of the Nodal Ministry as to how to handle a situation of non receipt of self appraisal, as contained in the above OM are still valid and have not been superseded or cancelled. As such, the same ought to have been followed, in which event the question of non availability of ACRs for consideration of the DPC would not have arisen. In fact, the practice, in case of non availability of ACRs for certain years is to consider the ACRs for the earlier period for the corresponding number/years and arrive at a conclusion as to the suitability or otherwise of an individual for promotion. This has not been done in this case.
10. Thus, the applicant has made out a cast iron case in her favour. The reasoning of the respondents that because no self appraisals have been furnished for a few years the case of the applicant for promotion as Senior Lecturer cum Senior Instructor is not at all justified. For, consideration for promotion is a fundamental right as held repeatedly by the Apex Court, including the decision in the case of S.B. Bhattacharjee vs S.D. Majumdar (2007) 10 SCC 513, wherein the Apex Court has held as under:-
13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor.
11. This has been repeated in the case of Dev Dutt v. Union of India, (2008) 8 SCC 725 as well.
12. In view of the above, the O.A. is allowed. It is declared that the applicant is entitled to be considered for promotion for the post of Senior Lecturer cum Senior Instructor in the respondents' organization and as a few ACRs are not available, the respondents shall consider the available ACRs for five years from 2009-2010 (and earlier) and on the basis of the performance/grading therein, the applicant's promotion should be decided. For this purpose, a review DPC has to be conducted. In case the applicant is selected and promoted, then as the vacancies are only three against which promotions have already been effected, the junior most among the ones so selected and promoted shall have to be reverted. This be done in accordance with law. Again, it is open to the respondents to keep the junior most selected candidate in supernumerary post, in case they so desire. As regards the consequential benefits, the applicant is entitled to promotion from the date the immediate junior has been promoted and her seniority in the higher post shall reckon from that date. However, the promotion shall be on notional fixation of pay and actual only from the date she shoulders higher responsibility. Pay from the date of promotion has not been directed as she had not shouldered the higher responsibilities and further, a part of the blame in the ACRs not being available has to go to the applicant as well. (We do not want, however, to enter into the controversy whether the self appraisals were submitted or not).
13. Respondents are directed to convene review DPC within a period of six weeks from the date of communication of this order and the result of the same should be declared immediately thereafter. In case of selection and promotion of the applicant, the pay fixation as well as seniority position shall also be duly considered and decided at the earliest.
14. The OA is allowed to the above extent. No cost.