WP(C) 4123/07 Page 1 of 32 * HIGH COURT OF DELHI : NEW DELHI + W.P. (C) No. 4123/2007 Judgment reserved on: 13.11.2007 % Judgment delivered on: 09.01.2009 DR. INDIRA SARNATH ..... Petitioner Through: Mr. P.V. Kapur, Sr. Advocate with Ms. Radha Rangaswami, Ms. Prachi Vasisht and Mr. Amit Sibal, Advocates. versus UNION OF INDIA & ORS . ..... Respondent Through: Mr. V.S.R. Krishna, Advocate. CORAM: HON'BLE MR.JUSTICE A.K.SIKRI HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? VIPIN SANGHI, J. 1. The present writ petition is directed against the order dated 22.5.2007 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short „The Tribunal‟) whereby the petitioner‟s Original Application bearing OA No.2612/2006 and the various miscellaneous applications filed by her have been disposed off by the Tribunal. The Tribunal has dismissed the aforesaid O.A filed by the petitioner. The petitioner had preferred the aforesaid OA to seek the WP(C) 4123/07 Page 2 of 32 quashing and setting aside of two orders passed by the respondents, both dated 6.12.2006 promoting, inter alia, respondent no.6 as Chief Medical Directors (CMD, for short) in Higher Administrative Grade (HAG, for short), and posting respondent nos.3 to 5 and 7 to 9 as CMD in Senior Administrative Grade (SAG, for short), and for a direction to the respondent authorities to promote the petitioner as CMD(HAG) with consequential benefits. 2. The petitioner was recruited to Indian Railway Medical Service(IRMS, for short) in 1972. She was promoted as Assistant Medical Officer (AMO), Additional Divisional Medical Officer (ADMO) and then as Divisional Medical Officer (DMO). She was further promoted to Senior Administrative Grade (SAG) in the year 2002 w.e.f. 20.10.2000. The next high grade is CMD (HAG). She was considered for promotion as CMD (HAG) and also for the various down graded posts of CMD in SAG but she has been denied promotion to CMD(HAG) and posting as CMD (SAG) by the respondent authorities. Respondent no.6 has been promoted as CMD (HAG) whereas the other private respondents have been posted as CMD (SAG). 3. The case of the petitioner before the Tribunal was that in the year 2002 when she was considered for promotion to the post of SAG, her record upto the year 2000 was considered. She submits that she definitely had a grading of “Very Good”. That is why she was promoted to SAG. However since the year 2001, after her promotion to the post of SAG she had been subjected to frequent transfers. Her ACRs were WP(C) 4123/07 Page 3 of 32 written by several officers. There was no communication from the Railway Board or any other authority indicating that there had been a fall in her grading of ACRs which would disentitle her for future promotion. As per the brochure of the Railway Board pertaining to confidential reports, and the writing of ACRs, the fact of fall in the grading requires to be communicated. The fact that she was never communicated any adverse remarks in her confidential reports goes to show that she was fit for promotion. If any grading is lower than the minimum required for promotion i.e the benchmark for promotion, the same has to be considered as adverse and has to be communicated to the concerned officer. Since no adverse remarks has been communicated, if she has been graded “Good” or below, the same has to be ignored on account of its non-communication. Her further case was that her immediate superior who wrote her ACRs is the DRM, who is an officer in the same grade as the Petitioner. The DRM is a non Medical Officer. It is not possible for the DRM to assess the performance of a Medical Officer. She also apprehended that on account of her being a tough task master, she might have incurred the displeasure of her colleagues and subordinates. For this reason her ACRs might not have been properly recorded on account of the biased attitude amongst her superiors during the period 2003-2005. She further submitted that her juniors, who were due to retire within a short span of time were posted as CMD(SAG). The post of CMD was down graded to SAG from HAG to accommodate such persons. The petitioner WP(C) 4123/07 Page 4 of 32 also submitted that the down grading of the various posts of CMD (HAG) to CMD(SAG) was improper. It was contended that the respondent authorities while down grading the said posts of CMD(HAG) had failed to establish expediency for such down grading in public interest, and had not consulted DOPT before such down grading. Her further grievance was that the Selection Committee was not constituted in accordance with the Resolution dated 28.3.2000 of the Railway Board, in asmuch as the said Resolution required that a functional member should be a member of the Selection Committee, especially when the Chairman, Railway Board is also a functional member. Her grievance was that the Railway Board does not consist of any member from IRMS and the Chairman, Railway Board is also not from IRMS. Consequently the Selection Committee did not consist of a functional member dealing with officers of IRMS. As there is no member (Medical) in the Railway Board, the head of the IRMS i.e. Director General, Railway Health Services (DG, RHS) should have been associated with the Selection Committee. It was contended that the process of selection and appointment as CMD was not transparent. She further contended that the method of writing ACRs for the petitioner was wrong, as during the five years from 2002-2006, she had served in five different assignments and her ACRs were written by different officers from various divisions in different zones. She complained that there was no Central Monitoring Authority to assess her work in so far as it involved varied responsibilities in different situations. The procedure of assessment of WP(C) 4123/07 Page 5 of 32 ACRs by the Selection Committee was also not transparent according to the petitioner. She sought the production of the ACRs of the petitioner as well as respondent No. 3 to 9 before the Tribunal for its own perusal along with the records of the Selection Committee and its recommendations for promotion to the post of CMD (HAG) and posting as CMD (SAG). 4. The stand of the official respondents before the Tribunal was that the Competent Authority had assessed the performance of all eligible officers including the petitioner at the time of preparation of the panel for HAG of IRMS officers. However, some of the officers including the petitioner were not recommended for promotion to HAG as they did not meet the benchmark of VG+ as stipulated in the circular dated 03.06.2002. The officers who were recommended for promotion to HAG were promoted vide Railway Board‟s letter dated 6.12.2006. No officer junior to the petitioner had been promoted to HAG vide the first order dated 6.12.2006. So far as the other order dated 6.12.2006 relating to posting of SAG officers of IRMS as CMD in SAG is concerned, the same does not amount to a promotion. It is further stated that the down grading of certain HAG posts of CMD to SAG was done by the Competent Authority to meet administrative exigencies and in public interest. As and when officers empanelled in HAG become available, these posts would be upgraded to HAG. It was further stated that even for posting against the down graded post of CMD, the performance of the officers including that of the petitioner was taken into account. WP(C) 4123/07 Page 6 of 32 5. The official respondents further stated that there are nine organized Grade `A‟ services in the Indian Railways, including IRMS. There are various other services/departments such as Security, Legal, Printing & Stationery etc. There are seven members of Railway Board headed by the Chairman. Their pay is Rs.26,000/- fixed. Member (Staff) an Ex-Officio Secretary to Government of India has control over the following services/departments: Personnel, Medical, Security, Law, Vigilance, Official Language etc. It was further disclosed that there are two posts of Director General/Railway Health Services and Director General/Railway Protection Force in the Railway Board. Their pay is also Rs.26,000/- fixed like that of the members of the Railway Board, but they are neither members of the Railway Board nor do they have the status of member and Ex-Officio Secretary to Government of India. These Director Generals report to Member (Staff). The Departmental Promotion Committee(DPC) for promotion to, inter alia, Senior Administrative Grade (Rs.18,4000-22,400) consists of all the members of the Railway Board as per the letter dated 26.9.1989, amended on 3.6.2002. According to the respondent the letter dated 26.9.1989 was an adoption of DOPT OM dated 10.4.1989 relied upon by the petitioner. For consideration for promotion of the IRMS officers, there is no member from Medical Department on the DPC. The petitioner was considered for promotion to SAG by the DPC, namely, the members of the Railway Board and was promoted as such. The DPC for promotion to HAG (Rs.22,400-24,500) comprises of members as laid down in the WP(C) 4123/07 Page 7 of 32 Resolution dated 28.3.2000 i.e. the Chairman Railway Board, Secretary/DOPT and one member of Railway Board. In the case of promotion to HAG of IRMS, the 3rd member is member (Staff). The Resolution dated 28.3.2000 was framed and issued with the approval of DOPT. The respondent, therefore, submitted that the contention of the petitioner that the DPC for promotion to HAG from amongst the IRMS officers had not been constituted as per DOPTs guideline was wrong. The DG, RHS not being a member of the Railway Board, he cannot be made the functional member in the DPC which considers the promotion of IRMS officers to HAG. The respondents further submitted that the letter dated 3.6.2002 does not state that the DPC can go outside the ACRs and make its own assessment. What has been stated is that the DPC is not merely guided by the grades recorded in the ACRs but makes its own assessment on the basis of the various entries in the ACRs including pertaining to several parameters and attributes. The respondent relied upon the decision of the Supreme Court in Dalpat Abasaheb Solunke V. Dr. B.S. Mahajan etc., AIR 1990 Supreme Court 434 wherein the Supreme Court had held that it is not the function of the Court to hear appeals against the decision of the Selection Committees and to scrutinize the relative merit of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise in the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited WP(C) 4123/07 Page 8 of 32 grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure violating the selection norms etc. 6. Based on the procedure laid down in the aforesaid circular dated 3.6.2002 it was submitted by the respondent authorities that the DPC was not merely guided by the grades recorded in the ACRs but it had to make it own assessment on the basis of various entries in the ACRs including several parameters and attributes. 7. The respondent authorities submitted that the Resolution dated 28.3.2000 and Circular dated 3.6.2002 were founded upon O.M dated 10.4.1989 of DOPT, and in conformity with it. The respondents produced the seniority list of SAG officers dated 12.4.2002 to dispute the claim of the petitioner that Dr. Krishan Kumar, respondent no.6 is junior to the petitioner. Dr. Krishan Kumar was placed at Sl. No.55 (having being promoted to SAG w.e.f. 28.07.2000), as opposed to the petitioner‟s placement at Sl.No.62 (having been promoted to SAG w.e.f. 20.10.2000) in the said seniority list. The respondent authorities defended the system of writing the ACR. The same had been evolved over a period of time and had stood the test of time. The 3-tier system of recording ACRs eliminates the element of bias. It was submitted that even though the DRM is in the same grade as the petitioner i.e. SAG, he had been authorized to initiate the ACR because he is the head of the Department/organization at the Divisional Level and the petitioner was reporting to him. The Medical Expert incorporates his views in the ACR WP(C) 4123/07 Page 9 of 32 of the SAG officers of IRMS as the Reviewing Authority is the CMD. The respondents contended that the genesis of the Resolution dated 28.3.2000 and the Circular dated 3.6.2002 is the DOPT circular dated 10.4.1989 and they are in conformity with it. If the Circular dated 3.6.2002 is bad in law as contended by the petitioner, then her promotion to SAG in terms of the said Circular is also unsustainable. 8. In her rejoinder the petitioner submitted that since she had been promoted to SAG in the year 2002, she would have had the grading “Very Good” in terms of the circular dated 3.6.2002. Thus if in the year 2006, the DPC met to consider her case for promotion to HAG, the DPC would have taken into consideration only three additional ACRs for the years 2003-04, 2004-05 and 2005-06. She states that in the two earlier years i.e.2002-2003 and 2001-2002 she must have had “Very Good” since she already stood promoted to SAG on that basis. During the years 2003-04 and 2004-05, she had done outstanding work which had been reported to the DG, RHS. Thus even with a “Good” or “Very Good” ACR for the year 2005-06, the total would have come to two “Very Good”, two “ Outstanding” and one “Good” or “Very Good” thus making the final grading of “Very Good +”. 9. We may at this stage take note of a few developments which took place during the pendency of the aforesaid OA before the Tribunal and the orders passed therein. The petitioner had sought interim relief while filing the Original Application before the Tribunal on 13.12.2006. On 14.12.2006, the Tribunal directed that the prayer for interim relief WP(C) 4123/07 Page 10 of 32 is kept open till the respondents appear. In case of future promotion, the respondents were not precluded from considering the applicant‟s case if she was otherwise eligible. 10. Thereafter the petitioner/applicant filed another MA. No.2330/2006 on 18.12.2006. The prayer sought in this application was to “clarify the order dated 14.12.2006 to state that the respondent no. 1 and 2 to consider the applicant‟s case for future vacancy of CMD(HAG) pending petitions………..” This MA No.2330/06 was taken up by the Tribunal and on 20.12.2006 the order passed by the Tribunal read: “MA 2300/2006 No order need be recorded in the M.A. Accordingly, it is disposed of. List the O.A on 5.1.2007. Issue dasti.” 11. The petitioner challenged the order dated 20.12.2006 of the Tribunal by filing W.P(C) No.210/2007 before this Court. The said petition was taken up for consideration on 10.1.2007. This Court, inter alia, passed the following order: “In so far as the merit of the matter is concerned, the learned counsel for respondent no. 1 and 2, on instructions of the Instructing Officer, states that petitioner‟s case shall be considered for two vacancies said to arise in January 2007. List on 8.2.2007. Dasti.” W.P(C)No.210/2007 was disposed of by this Court on 13.2.2007. In the said order, this Court, inter alia, directed “needless to say that a DPC shall be constituted by the respondent according to the DOPT WP(C) 4123/07 Page 11 of 32 Circular dated 10th April 1989 bearing O.M.No.22011/5/86/Estt(D) and the concerned Resolution of the Railway Board dated 28.3.2000. In this view of the matter, no further orders are called for and accordingly, the writ petition stands disposed of along with CM 365/2007 and CM366/2007. The fact that the petitioner would have less than one year‟s service left before her retirement at the time of consideration of her candidature shall not come in the way of promotion, in case she is found fit for the post as the lis was pending prior to this period becoming less than one year.” 12. One of the grievances raised by the petitioner before the Tribunal was that despite the aforesaid orders passed by this Court, the respondent authorities had failed to consider the case of the petitioner for promotion to CMD (HAG) in respect of the two vacancies which arose in January 2007. To meet the aforesaid submission of the petitioner, the respondent authorities submitted that the information given to the Tribunal and to the High Court initially, that two vacancies of CMD(HAG) were to arise in January 2007 was factually in-correct. This point was clarified by the official respondents in their pleadings before the High Court itself as follows:- “10. That on 10.01.2007, on the instructions of the instructing officer, II. Counsel for Respondent Nos.1 & 2 had submitted before this Hon‟ble Court that the Petitioner‟s case shall be considered for two vacancies said to arise in January, 2007. The factual position, as can be seen from the submission made above, is that the Petitioner already stands considered both for promotion to HA Grade as CMD against vacancies arising up to 30.06.2007 as well as for the post of CMD by temporarily WP(C) 4123/07 Page 12 of 32 operating the HA Grade posts in SA Grade. The submission made before this Hon‟be Court was without knowledge of the factual position obtaining in the relevant records. Therefore, the deponent tenders unconditional apologies for the same.” 13. The respondents further clarified that the Selection Committee/DPC for consideration of cases of IRMS officers to the posts of CMD (HAG) and for posting as CMD(SAG) was held on 10.8.2006 and not on 21.8.2006, as contended by the petitioner. 14. The Tribunal rejected the claim of the petitioner that her seniority has to be counted on the basis of the date of her entry into service. A person substantively promoted earlier in the higher grade shall necessarily count his/her seniority in that higher grade ahead of those who were promoted later to that higher grade. The claim of the petitioner that she had been superseded by respondent No.6 Dr. Krishan Kumar was rejected. The Tribunal called for the record of the DPC meeting held on 10.8.2006 and perused the same. The Tribunal found that names of 10 officers were considered by the DPC for filling up ten vacancies in order of seniority as per SAG seniority list dated 12.4.2002. The petitioner made the cut for being considered for promotion in spite of being ranked at serial no.17 out of 20 persons in the zone of consideration, since seven of her seniors were not considered, as their residual service was less than one year as on 1.7.2006. The petitioner was at serial no.10. Out of the ten officers who made the cut, only six were finally found “fit” for promotion to the post of CMD (HAG) on the basis of assessment of their performance and WP(C) 4123/07 Page 13 of 32 upon being graded VG+ by the Selection Committee. The petitioner was one of the four persons who were assessed as “unfit” by the Selection Committee. The Tribunal further observed that as far as the petitioner is concerned, the assessment of her performance/fitness in the years 2001-2002 to 2005-2006 by the DPC is based purely on the grading recorded in the ACRs for that period. In none of the years, the petitioner had been recorded as „unfit‟ in the ACRs. The primary reason for the petitioner being „unfit‟ on the whole is that her overall grading has not been found to be “Very Good+” as per the stringent criteria of selection for promotion to HAG prescribed in the Railway Board‟s Circular dated 3.6.2002. The Tribunal held that the description in para 3.11 of the Brochure on confidential reports, regarding communication of the remarks „not fit‟ if the officer has been graded as „Good” is with reference to the entries made in the ACRs and has nothing to do with the proceedings of the DPC. The Tribunal also observed that in respect of the petitioner‟s ACRs, the same had been countersigned by the DG(RHS) before their submission to the Accepting Authority. 15. Before us the submissions of the petitioner are that the circular dated 03.06.2002 issued by the Railway Board laying down the procedure for promotion to HAG from SAG is bad as it is in contradiction with Government of India OM dated 08.02.2002. It is further contended that the circular dated 03.06.2002, which sets out “VG+” as the benchmark is at variance with OM dated 08.02.2002. “VG+” is not defined anywhere. With an undefined “VG+” even five VGs can make WP(C) 4123/07 Page 14 of 32 the ACR as “VG+”. There could be other combinations of Good, Very Good and Excellent, which could result in the grading of “VG+”. The combinations without any guideline makes it arbitrary. It is contended that the only permissible benchmark is “VG” as set out in the OM dated 08.02.2002. It is also argued that the OM dated 10.04.1989 prescribes that the DPC shall consist of, inter alia, a technical member and a person familiar with the work of the officers being considered. The resolution dated 28.03.2000 does not fulfill either of these requirements. The resolution dated 28.03.2000 is not in conformity with Government of India OM dated 10.04.1989. It is argued that member (staff) cannot be considered as a technical member since he does not belong to the medical field. He has not seen the working of the IRMS officers except those who may have attended on him professionally. It is also argued that the respondents have not complied with the order dated 13.02.2007 passed by the Division Bench which directed the consideration of the petitioner‟s case by the DPC in accordance with OM dated 10.04.1989. It is also submitted that the orders dated 10.01.2007 and 13.02.2007 passed by the Division Bench, as aforesaid, necessitated the consideration of the petitioner‟s case for promotion to HAG in respect of vacancies arising in January 2007. In spite of the said orders the respondents authorities have not held the DPC and they are in contempt of the orders of the Court. It is argued that DRM could not have adjudged the fitness of the petitioner, as the DRM himself is also in the same grade. In support of this contention WP(C) 4123/07 Page 15 of 32 reliance is placed on SBI v. Kashinath Kher & Ors. (1996) 8 SCC 762. The petitioner also questions the down grading of the various posts of CMD (HAG) to CMD (SAG). The petitioner has also made a grievance that her representation and other materials were not placed before the DPC; that she had repeatedly been transferred five times in four years while working in SAG but this fact was not brought to the notice of the DPC; that her DRM has failed to write a deserving report for the petitioner during the period 2003-2005. It is stated that there is violation of the wednesbury principle in the proceedings of the DPC. The petitioner also raises an issue of biased attitude of the respondent officials. It is also argued that even the Tribunal has recorded that so far as the petitioner‟s case is concerned, the DPC was merely guided by the grading given in the ACRs and that it has not given its own grading in terms of paras 10 & 11 of the circular dated 03.06.2002 of the Railway Board. Despite the Tribunal finding the aforesaid lacuna, it did not set aside the consideration of the DPC. 16. Respondent authorities have contended that the impugned order is detailed and reasoned, which considers all the contentions of the petitioner at length. The respondents have defended the placing of respondent No.6 as senior to the petitioner in the seniority list. It is argued that the job