UNION OF INDIA Vs. AMIT SHANKAR

JUDGEMENT

(1.) THE respondent No.1 joined the service with the petitioner/Union of India in the Ministry of Defence as a Junior Translator on 14.08.1989 after he was selected on the basis of examination conducted by the Staff Selection Commission in the year 1987. THE Respondent No.2 & 3 also joined the said service in the same post on the basis of same examination. In the Seniority List of the Junior Translator, respondent No.1 was placed at Sl. No.4, whereas the respondent Nos. 2 & 3 were shown at Sl. Nos. 3 and 7 respectively. It is clear therefrom that the respondent No.1 was junior to the respondent No.2 and was senior to respondent No.3. Next promotion is to the post of Senior Translator. It is not in dispute that as per the Recruitment Rules, the said post of Senior Translator is a non- selection post and criteria for promotion prescribed is "seniority-cum-fitness". Thus, the promotion is to be made on the basis of seniority and only an ,,unfit person is to be excluded.

(2.) THE DPC for this purpose was held on 20.12.1994 when the respondent No.1 along with respondent Nos.2 and 3 were considered for the aforesaid post. THE DPC did not recommend the case of the respondent No.1 categorising it as "not yet fit" on the basis of assessment of his service records. It, however, recommended the promotion of both the respondents 2 and 3 to the post of Sr. Translator. Accordingly, the respondent Nos. 2 & 3 were given the promotion to the post of Senior Translator, whereas the respondent No.1 was denied the same.

(3.) IN order to verify the respective claims of the parties, the Tribunal called for the DPC records. It was found by the Tribunal that in the year 1991-92, adverse remarks recording late coming to the office was shown in the ACR of the respondent No.1. However, at the bottom of these very remarks, another remark was made in 1993 that the respondent No.1 was regular. From this, the Tribunal concluded that the sting of remarks made in the year 1991-92 stood removed. It was also noted by the Tribunal that for the years 1989-90 and 1992-93, the respondent No.1 was given the gradation of ,,good and in the remaining three years, the gradation was ,,average. Relying upon the guidelines issued by the Department of Personnel & Training and particularly, Para 6.1.4 thereof which stipulates that ,,average gradation is not to be treated as adverse remarks, the Tribunal took the view that on the basis of the aforesaid gradation of ,,good for two years and ,,average for three years, it could not be said that there was anything adverse against the respondent No.1. Since the Rule for promotion, as mentioned above, is ,,seniority-cum- fitness and in the absence of adverse comments in the records against respondent No.1, it could not be stated that he was unfit for promotion. As he was senior to respondent No.3, who was promoted, the respondent No.1 could not be denied for the promotion of Senior Translator. On this basis, the OA of the respondent No.1 was allowed by the Tribunal with direction to consider the case of the respondent No.1 for promotion to the post of Senior Translator with effect from 20.12.1994 with all consequential benefits.