Judgment:
Dr. Dharam Paul Sharma, Member (J):
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 against Order No. 4/29/2003/CS -1dated 03.05.2006 whereby the representation of the applicant for inclusion of his name in the select list Grade-I for the year 1991 stands rejected. A copy of the said order is at Annexure A-1.
2. The applicant was selected as Section Officer of CSS on the basis of Civil Service Examination, 1982 but he joined the service as Section Officer, CSS only on 02.07.1984. Under the applicable rules, the applicant became eligible for consideration for inclusion in the select list Grade-I of CSS on completion of eight years of approved service. Despite the fact that he had not completed eight years of approved service in 1991, the name of the applicant was indeed considered for inclusion in the select list for the year 1991 perhaps for the reason that his juniors had completed the requisite eight years of approved service and were within the zone of consideration. The name of the applicant was, however, not recommended by the DPC held by Union Public Service Commission for inclusion of his name in the select list of Grade-I of CSS for the year 1991. The name of one Smt. L. Indumathy, junior to the applicant, was recommended, the reason being she was having overall grading Very Good and the overall grading of applicant being Good. The name of the applicant was subsequently recommended for inclusion in the Select List of 1992. The applicant made a number of representations for revision of the date of regular appointment to CSS Grade-I and Select List of the same as per seniority in the grade of Section Officer. It appears that the applicant had also taken the matter to the National Commission for SCs/STs which was duly informed of the factual position and the reason as to why the applicants name was not recommended for inclusion in the Select List Grade I of CSS for the year 1991 vide Order No.4/29/2003-CS I dated 17.12.2003, a copy of which is Annexure A-2. The representation made by the applicant was finally disposed of vide impugned order dated 03.05.2006. Feeling aggrieved, the applicant has filed the present application challenging the legality of the impugned order rejecting his representation on the subject.
3. The case of the applicant is that in OM No.4/15/2001 CS-I dated 24.8.2001 forwarding the eligibility list of SOS/Grade-A officer of CSS for the years 1991-1994, the name of the applicant figures at Sl. No.241 between the name of Shri Ramesh Kumar and Km. L.Indumathy but in the Civil List forwarded by DOPT OM NO.4/8/2002 CS-I dated 10.6.2003, the name of the applicant figures at Sl. No. 398 instead of 241. The representation made against the same was disposed of vide impugned order which is bad in law for the reason of it having been passed in an mechanical manner.
4. The applicant has pointed out the contradictions between the impugned order on the one hand and the communication sent to the National Commission for SCs/STs on the other hand. The reason given to the Commission for non-inclusion of the applicants name was non-completion of eight years of approved service. But in the impugned order dated 03.05.2006, a new ground has been added by the respondents stating that the applicant failed to meet the benchmark. It was contended by the applicant that he was not communicated any adverse remark for the relevant period. No punishment, minor or major, had been inflicted on the applicant during the relevant period and in case there is any adverse remark, the same cannot be taken into consideration against the applicant for the reason of not having been communicated to him. No departmental enquiry or trial or proceeding is pending against the applicant.
5. It has further been contended that the benchmark for Group A posts below the level of Rs.12000-16500/- is Good and the grading to be given by the DPC is only fit/unfit. Where the benchmark is Good, the DPC would assess the suitability of officers in the zone of consideration up to a number which is considered sufficient against the number of vacancies and would not consider the remaining officers in the zone of consideration. There shall be no suppression in the promotion among persons, who are found fit by DPC in terms of prescribed benchmark of Good. Where adequate number of SC/ST candidates were not available within the normal zone of consideration, the zone of consideration was required to be extended upto five times of the number of vacancies and the SC/ST candidates coming within the extended zone should also be considered against the vacancies reserved for them.
6. It has further been contended by the applicant that regular service of the applicant is to be counted from 01.07.1983 for the reason he being a Section Officer of 1982 batch. In view of this, the applicant has already completed the requisite eight years of approved service in the year 1991.
7. In view of the aforesaid, the applicant prayed for setting aside the impugned order and issuance of a direction to include his name in the Select List of Grade-I of CSS for the year 1991 with all consequential benefits.
8. At the hearing, the learned counsel for the applicant contended that the discrepancies between the impugned order on one hand and in the order of National Commission for SCs/STs on the other hand vitiate the action of the respondents. The respondents cannot insist upon the completion of requisite approved service of eight years in view of the fact that by their own admission, the respondents had indeed considered the name of the applicant for inclusion in the Select List of Grade I for the year 1991. The main thrust of the argument of the applicants counsel is that non-inclusion of applicants name in the Select List Grade I for the year 1991 for the reason his grading falling below the benchmark, is not sustainable in law in view of the Honble Supreme Courts judgment in Dev Dutt Vs. Union of India and Ors. (Civil Appeal No.7631/2002, decided on 12.05.2008) and a Full Bench decision of this Tribunal in the case of Ashok Kumar Aneja Vs. Union of India and Ors. (OA-24/2007, decided on 7.5.2008). The principle laid down in these cases is that the downgrading from Very Good to Good and similar downgrading does amount to making of an adverse entry. Mandatorily these are required to be communicated to the person who stands to be affected thereby.
9. In the written reply, the respondents referred to Rule 12 (2) read with Rule 2 (C) of Central Civil Services (Classification, Control and Appeal) Rules, (for short CCS (CCA) Rules) 1962 and stated that since the applicant joined the service as Section Officer of CSS only on 02.07.1984, he cannot be said to have completed approved service of eight years in Grade I on 1.7.1991 and, therefore, he was not eligible for consideration on this count. Nevertheless, applicants service was counted from 01.7.1983 and his name had indeed been considered by the DPC held for inclusion in the Select List of 1991, the issue of completion of approved service of eight years loses its significance in this case. Strong emphasis has been laid on Regulation (7) of the CSS (Promotion to Grade-I and Selection Grade) Regulations,1964 which reads as follows:The Select List shall be prepared by including the required number of names first from amongst the officers finally classified as outstanding then from amongst those similarly classified as very good and thereafter from amongst those similarly classified as good. The order of names inter-se within each category shall be the order in which the names are arranged in the single list prepared under Clause (2). The Select List so prepared shall be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions.
10. It has further been submitted by the respondents that the name of the applicant has been placed at Serial No.2523 in the Common Seniority List of the Section Officers of the CSS. The Serial number of Smt. L.Indumathy, in the common seniority list was 2528. The name of the applicant was considered for inclusion in the Select List of grade-I(Under Secretary) of CSS for the year 1991. The eligibility list was prepared in accordance with the seniority of Section Officers in the common seniority list. The applicant was no doubt senior to Smt. L.Indumathy in the grade of Section Officer and his name was kept above Smt. Indumathy in the eligibility list. Both the aforesaid officers, along with others were considered by the DPC held in the Union Public Service Commission for inclusion of their names in the Selection List of Grade-I of CSS for the year 1991. The applicant could obtain grading of Good only whereas Smt. L.Indumathy obtained grading of Very Good;The name of the applicant was not recommended by the DPC for inclusion in the aforesaid Select List due to shortfall in the benchmark and Smt. Indumathy was included due to better benchmark. It is accordingly said that it is not a case of downgrading of grading or fixing a benchmark for consideration of eligibility. Here is the case where the applicant was considered as per the rules but could not be selected on the basis of his service record. Accordingly, the respondents submitted that the application is devoid of merit and is liable to be dismissed.
11. We have given careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
12. The cases relied upon by the applicant are distinguishable on facts as well as on law. In Dev Duts case (supra), the appellant was eligible to be considered for promotion to the post of Superintending Engineer on completion of five years in the grade of Executive Engineer which he completed on 21.02.93. Accordingly, the appellants name was included in the list of candidates eligible for promotion. However, the DPC held its meeting on 16.12.1994 and in that meeting, the appellant was not found to be eligible for promotion since he did not have Very Good entry but only the Good entry for the year 1993-94. The stand of the respondent was that according to para 6.3(ii) of the guidelines for promotion of departmental candidates, the benchmark grade was Very Good for the last five years before the DPC. Since the appellant failed to meet the requisite benchmark, he was not held eligible for promotion. The grievance of the appellant was that he was not communicated the Good entry for the year 1993-94. He submitted that had he been communicated that entry, he would have had an opportunity of making a representation for upgrading that entry from Good to Very Good and if his representation was allowed, he would have also become eligible for promotion. The respondents, on the other hand, submitted that only an adverse entry needs to be communicated to an employee. This did not find favour by the Apex Court as the Good entry, in fact, was an adverse entry because it eliminates the candidate from being considered for promotion. Thus, the nomenclature is not relevant, it is the effect, which the entry is having, which determines whether it is an adverse entry or not. It is thus the rigours of the entry, which is important, not the phraseology. The grant of a Good entry is not of satisfaction to the incumbent if it, in fact, makes him ineligible for promotion or has an adverse effect on his chances. Accordingly, the Honble Supreme Court directed that the Good entry would be communicated to the appellant and thereupon the appellant might make the representation against the said entry and his said representation would be decided. In case his entry is upgraded, the appellant shall be considered for promotion by the DPC and in case he got selected, he would be given higher pension with arrears of pay and interest etc. In the instant case, there is no such benchmark fixed which has effect of eliminating the appellant from being considered for promotion to Grade I. It is not the case of applicant here that he could not be selected in the Select List Grade I for the year 1991 for the reason that he failed to meet benchmark as a result of which his case was taken out of consideration. In Ashok Kumar Anejas case, the applicant was not recommended for promotion by the DPC for the reason that out of five years grading, he was having Very Good grading for two years whereas he was required to have Very Good grading in the ACRs for the last five years for being considered as eligible for promotion. The question was whether downgrading from Very Good to Good amounted to making of an adverse entry and whether that was required to be communicated to the applicant before it was acted upon by the DPC while processing promotion of the officer. This question was also answered in affirmative by the Full Bench of this Tribunal in its order dated 07.05.2008 in Ashok Kumar Anejas case (supra).
13. The fact remains that the applicants case was considered but not recommended on merit as others were having better grading. If the other persons did not have better grading, then applicants case might have been recommended in own his turn. On the other hand, even if the applicant was having grading Very Good, his case might not have been recommended if a person junior to him was outstanding grading. In other words, it is the relative merits based on which selections are made among the eligible officers, those having Outstanding grading will be ranked first followed by those having Very Good and Good grading respectively. In a class based on similar gradings, the officers will be listed on the basis of their respective seniority.Regulation (7) makes it clear how the selection is to be made. The applicant has not pointed out if the selection in his case has been made in contravention of Regulation 7 in anyway.
14. On a careful consideration, we are of the considered opinion that the applicant has failed to make out any case for the grant of relief sought by him. The OA is dismissed. No order as to costs.