High Court
Case Details
WP(C) 572/2012 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH Heard Mr. D. Barua, learned Central Govt. Counsel, for the petitioners, and Ms. U. Dutta, learned counsel, for the respondent. The respondent-applicant was initially appointed as an Assistant Executi 2. ve Engineer (Civil), on 21.03.1991, in Central Public Works Department, Govt. of India. The respondent-applicant was promoted to the grade of Executive Engineer , with effect from 05.06.1995, on pay scale of Rs.10,000/- to 15,200/-. The pro motional post for an Executive Engineer is the post of Superintending Engineer. In terms, however, of Office Memorandum, dated 06.06.2000, issued by the Governm ent of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, a person, on completion of five years of service in t he grade of Executive Engineer, is entitled to upgradation in the scale of pay, the upgraded scale of pay being Rs.12,000/- to Rs.16,500/-. This upgradation, in the scale of pay, is known as Junior Administrative Grade (in short, JAG), whic h is, strictly speaking, a non-functional grade inasmuch as Executive Engineer r emains, notwithstanding the upgradation of the pay scale of JAG, an Executive En gineer. 3. The respondent-applicant’s case has been that he had completed his five years of service, in the grade of Executive Engineer, in the pay scale of Rs.10, 000/- to Rs.15,200/-, on 05.06.2000 and became eligible to receive the pay scale of JAG on 05.06.2000 itself. The respondent-applicant’s grievance has been that despite the fact that he had completed five years of service in the grade of Ex ecutive Engineer, he was not granted the benefit of upgradation in the pay-scale mentioned hereinbefore, though the present petitioners, vide office order, date d 07.09.2005, granted, non-functional JAG in the pay scale of Rs.12,000/- to Rs. 16,500/-, to as many as 134 Executive Engineer (Civil) and the said 134 Executiv e Engineer (Civil) included some persons, who were junior to the respondent-appl icant herein. 4. The respondent-applicant, then, submitted his representation to the peti tioners herein, on 23.09.2005, expressing his grievances against the omission to grant him JAG, though his juniors were favoured by granting the said grade. In course of time, the respondent, along with others, was, by officer order, dated 27.09.2007, issued, in this regard, promoted to the post of Superintending Engin eer in the pay scale of Rs.14,300/- to Rs. 18,300/-. The respondent-applicant, u pon joining the promotional post of Superintending Engineer, made, once again, a representation, on 21.04.2008, seeking granting of the benefit of upgradation t o JAG, but the respondent-applicant did not receive any response to his represen tation.
Legal Reasoning
Aggrieved by the inaction, on the part of the petitioners herein, the re 5. spondent-applicant made an application, under Section 19 of the Central Administ rative Tribunals Act, 1985, to the Central Administrative Tribunal, Guwahati Ben ch. The said application came to be registered as Original Application (in short , the OA) No.148/2009. 6. ntending, inter alia, thus: The petitioners herein, as respondents in the OA, contested the OA by co (i) In terms of the Office Memorandum, dated 06.06.2000, aforementio ned, an Executive Engineer, on completion of five years of regular service in th e pay scale of Rs.10,000/- to Rs.15,200/-, is eligible for consideration for gra nt of non-functional JAG. However, in terms of DOPT guidelines, contained in Off ice Memorandum, dated 09.10.89, in order to grant to an Executive Engineer upgra ded scale of JAG, a Departmental Promotion Committee (in short, DPC) has to be c onstituted, which is required to consider the ACRs of last five years of the off icer concerned and, on being satisfied that the overall performance of the offic er is good, upgradation, in the pay scale of JAG, is granted provided that a can didate has, at least, two ACRs, during the relevant period, wherein he stood gra ded as ’very good’ and that there shall be no adverse entries in any of the ACRs . (ii) A DPC, in the present case, was held, on 18.03.2012 and 01.04.20 12, and it considered, amongst others, the case of the present respondent-applic ant too; but the benefit of JAG could not be extended to the respondent-applican t inasmuch as his ACRs, in the relevant period, has had adverse remarks and that was the reason why the respondent-applicant had not been granted the benefit of JAG. (iii) The present petitioners’ contention that it was because of adverse entries, in his relevant ACRs, that the respondent-applicant had not been grant ed the scale of JAG, the respondent-applicant contended that he had never been c ommunicated the adverse entries, if any, contained in his ACRs and, in such circ umstances, the adverse entries, if any, ought to have been kept excluded by the DPC from the purview of its consideration. In this regard, reliance was placed, on behalf of the applicant-respondent, on Abhijit Ghosh Dastidar Vs. Union of In dia and others, reported in (2010) 1 SCC 959. 7. Though the present petitioners, as respondents, insisted, in the OA, tha t the adverse entries had, indeed, been communicated to the applicant-respondent herein, they produced no such material, which the learned Tribunal could rely u pon to hold that the adverse entries, contained in the ACRs of the respondent-ap plicant, had, indeed, been communicated to the respondent-applicant. This apart, the petitioners, who were respondents in the OA, could also not establish that they had responded or replied to the representations, which the present applican t-respondent had made seeking benefit of the pay scale of JAG. In the circumstances, as indicated above, the learned Tribunal, by its o 8. rder, dated 04.03.2011, held that since the respondents, i.e., the petitioners h erein, had failed to prove that the adverse entries, contained in the ACRs, in q uestion, had been communicated to the respondent-applicant, the refusal to grant the pay scale of JAG was wholly illegal and, therefore, directed the respondent s to constitute a review DPC in order to consider the present respondent’s case for raising the scale of pay to JAG by ignoring the adverse entries in the ACRs, which had not been communicated to him. The learned Tribunal further directed t hat the respondents, i.e., the petitioners herein, shall pass appropriate order in terms of the finding of the review DPC and communicate the same to the respon dent-applicant within three months from the date of receipt of the copy of the o rder passed by the learned Tribunal. It is the order, dated 04.03.2011, passed, in OA No.148/2009, which has 9. been put to challenge, in this writ petition, made under Article 226 of the Cons titution of India, by the petitioners, who were, as indicated above, respondents in the OA. 10. While considering the present writ petition, it needs to be noted that t he question as to whether the adverse entries, contained in the relevant ACRs of the respondent-applicant, had or had not been communicated, was a disputed ques tion of fact and the learned Tribunal, in terms of the provisions of Section 14 of Administrative Tribunals Act, 1985, is competent to decide, on the basis of t he evidence, if any, available before it. In the case at hand, since the petitioners herein justified the refusal 11. to grant the pay scale of JAG to the respondent herein by contending what they c ontended in the OA, the burden of proving that the adverse entries, if any, in t he ACRs of the applicant-respondent, had been communicated to the applicant-resp ondent lied on the petitioners. As the petitioners herein had failed to discharg e this burden, the learned Tribunal was wholly within the ambit of its jurisdict ion in directing the present petitioners to constitute a review DPC in order to
Decision
consider the case of the respondent-applicant for granting him the scale of JAG. 12. Because of what have been discussed and pointed out above, we do not fin d that there is any merit in the present writ petition and we, therefore, dismis s the writ petition accordingly. 13. We, however, leave the parties to bear their own costs.