Central Administrative Tribunal - Jabalpur
Dr. Arun Kumar Sharma Son Of Shri Ramesh ... vs Union Of India on 24 May, 2013
(Reserved)
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.712 of 2009
Jabalpur, this Friday, the 24th day of May, 2013
Honble Mr. Justice Dhirendra Mishra, Judicial Member
Honble Mr. G.P.Singhal, Administrative Member
Dr. Arun Kumar Sharma son of Shri Ramesh Chand Sharma,
Aged about 42 years, Documentation Officer,
Indian Institute of Soil Science, Nabi Bagh,
Berasia Road Bhopal (Madhya Pradesh),
Resident of House No.34 J Sector HIG,
Ayodhya Nagar, Phase-II, Bhopal, M.P. - Applicant
(By Advocate Shri Mohit Nayak, proxy counsel
of Shri Shashank Shekhar)
V e r s u s
1. Union of India, Through its Secretary,
Indian Council of Agricultural Research, Krishi Bhawan,
Dr. Rajendra Prasad Road, New Delhi 110114.
2. The Director General, Indian Council of
Agricultural Research, Krishi Bhavan,
Dr. Rajendra Prasad Road, New Delhi 110114.
3. Dr. A.Subba Rao, Director, Indian Institute of Soil Science,
Nabi Bagh, Berasia Road, Bhopal 462038.
4. Shri V.B. Andurkar, Farm Superintendent (T-9),
Indian Institute of Soil Science, Nabi Bagh,
Berasia Road, Bhopal 462038.
5. Mrs. Nirmala Mahajan, Technical Officer (T-9),
Library Indian Institute of Soil Science,
Nabi Bagh, Berasia Road, Bhopal-462038. Respondents
(By Advocate Smt. Ritu Sharma, proxy counsel
of Smt. Kanak Gaharwar)
(Date of reserving the order: 30.04.2013)
O R D E R
By Dhirendra Mishra, JM.-
Through this Original Application, the applicant has prayed for the following reliefs:
(i) It is therefore, prayed that this Honble Tribunal may kindly be pleased to quash the comments of respondent No.3 as detailed in letter dated 15/11/2008 bearing No. F No.4-46/2004-RECTT. (Vol. IV), (Annex.A/9) alongwith the proceedings of assessment committee and further the Honble Tribunal may kindly be pleased to quash the observations of respondent No.3 in the same letter detailing that, the recommendation of assessment committee be read and conjunction with the observations of the Institute.
(ii) That, this Honble Tribunal may further be pleased to quash the observations made in respect to the applicant in order dated 11/12/2008 bearing No.11(48)/2005-Estt.IV (Annex.A/14).
(iii) That, this Honble may kindly be pleased to quash office order dated 14/1/2009 bearing F-46/2004-RECTT. (Vol.V).
(iv) That this Honble Tribunal may further be pleased to direct the respondent No.1 to reconsider the recommendations of DPC/ Assessment Committee dated 20/10/2008 afresh and to pass suitable orders within stipulated time frame.
(v) That, this Honble Tribunal may kindly be pleased to hold that, the DPC/Assessment Committee is empowered to upgrade the assessment of the reporting officer/reviewing officer and as such the DPC had rightly upgraded the assessment reports of the applicant, by a speaking order in the recommendation.
(vi) Any other order or direction deemed just and proper in the circumstances of the case may also be issued to give relief to the applicant.
2. Briefly stated grievance of the applicant is that the applicant joined on the post of Documentation Officer (T-7) at Indian Institute of Soil Science (in short IISS) Bhopal under the Indian Council of Agricultural Research (ICAR) on 12.08.1994. He became eligible for promotion to the next cadre (T-9) after completing 7 years regular service as per ICAR Technical Service Rules. However, no Departmental Promotion Committee (in short DPC) was convened despite repeated reminders till 22.10.2008, when a DPC was conducted for assessment of the applicant for the post of T-9. The Chairman (Library Committee), who is reporting authority of the applicant, recommended his case for promotion. The Assessment Committee recommended applicants case for promotion w.e.f. 12.08.2001 to the next grade of T-9, vide Annexure A-8. The recommendations of the Assessment Committee were forwarded to the Director General, ICAR, respondent No.2, who is the appointing authority for approval, by the respondent No.3 vide letter dated 15.11.2008 (Annexure A-9), along with his own remark with a malafide intention to harm the applicant. Respondent No.3 had never been reporting or reviewing authority of the applicant and the remarks were absolutely uncalled for and undesirable. The applicant was not communicated the result of the DPC for a considerable period and he was informed vide letter dated 14.01.2009 (Annexure A-10), that the competent authority of the Council has not accepted the recommendations of the Assessment Committee, held on 22.10.2008 for granting Merit Promotion to the applicant from T-7 to the next higher grade T-9, whereas respondent No.5 was granted promotion.
3. From facts pleaded in paragraph 4.10 of the Original Application, it would be evident that the respondent No.3 nourished malice against the applicant and he constantly harassed and victimized him. The applicant had never been communicated any written or oral advice, caution, reprimand, warning, censure etc. He never received any communication regarding downgrading of his Annual Confidential Report (in short ACR) from the benchmark and, therefore, he was under impression that he is possessing required ACR gradings for promotion to cadre T-9. However, from the communication dated 11.12.2008 (Annexure A-14), he learnt that the competent authority did not accept the recommendations of the Assessment Committee for granting him merit promotion to T-9 grade because he does not fulfill the benchmark criteria of three Very Good ACRs during seven yearly assessment period.
4. The applicant has already represented his case to the Director General, ICAR vide Annexure A-15, dated 11.02.2009. However, respondent No.3 has not forwarded the same. He has also submitted reminder on 02.05.2009 (Annexure A-16) to the Director IISS, Bhopal for forwarding his representation to the Director General, ICAR whereupon he was informed vide Annexure A-17, dated 15.06.2009 that his case for granting him promotion to T-9 grade has not been accepted by the competent authority. It was vehemently argued that the applicant has been denied promotion on the ground that he did not fulfill the benchmark criteria of three Very Good ACRs during the seven yearly assessment period for promotion from T-7 to T-9 post, whereas below benchmark ACRs were never communicated to the applicant and therefore, the same could not be considered for denying him promotion by not accepting the recommendations of the Assessment Committee.
5. It was further argued that respondent No.3 should have forwarded the recommendations of the DPC, without any adverse comments. Even the comments recorded by respondent No.3 in his forwarding memo are factually incorrect. The object of the writing Confidential Report is to give opportunity to the officers to remove inefficiency and to inculcate his deficiency in order to improve their work and efficiency as been observed by the Honble Supreme Court in catena of its judgments. However, in the instant case, un-communicated below benchmark gradings in the ACRs of the applicant has been made basis for not accepting the recommendations of the assessment committee.
6. On the other hand, learned counsel for the respondents argued that the applicant had become eligible for being considered for promotion to the cadre of T-9 from T-7 as per circular dated 24.02.2006 (Annexure R-1) after completing seven years service in grade T-7. Before the applicant was considered for promotion to the grade of T-9, he was also considered for promotion to the grade of T-8 by the institute on 28.06.2003 and his case for promotion to the T-8 grade was not approved by the appointing authority as his performance was much below the prescribed benchmark of any three Very Good ACRs and the applicant was communicated about the same on 24.11.2004 vide Annexure R-3. The applicants request for holding DPC for promotion to the grade of T-9 could not be considered as amendment in the Technical Service Rules were pending at that time. However, after the ban on promotion and recruitment was lifted, cases of all eligible technical employees including the applicant for promotion to T-9 grade were considered. For the purposes of promotion of the applicant to grade T-9, his seven yearly assessment, commencing from 1994 to 2001, was relevant, notwithstanding any general remark made by the Chairman of the Library Committee while forwarding the recommendation of the DPC for promotion. The DPC while recommending the case of the applicant, wrongly interpreting circular dated 10.10.1991, upgraded the assessment of the applicant by taking into account the constraints faced by him while performing the duty during the period of assessment, which is legally not permissible and the DPC was only required to look into the grading given in the ACRs and to look into the report of the assessment period for assessing the merit of the candidates concerned. Even the constraints faced by the applicant referred to in the recommendation of Annexure A-8, are factually incorrect. ACR being comprehensive document serves an index of performance and base for marking the score while evaluating the performance of a candidate and the same cannot be overlooked particularly when promotion is a Merit Promotion. The Ministry has already issued comprehensive guidelines for assessment of Technical Personnel for screening of candidates for promotion by the Assessment Committee on 27.03.2001 (Annexure R-15). The material to be considered by the Assessment Committee for promotion of an employee is detailed in the letter of the ICAR, dated 26.12.2005 (Annexure R-11). The ICAR, vide its clarification dated 11.03.2010 (Annexure R-37) has clarified that the DPCs are not supposed to interfere with the ACR grading in cases where overall grading is consistent with the grading under various parameters or attributes, and in cases where the overall grading is found to be inconsistent with the grading under various parameters or attributes, the DPC is required to make its own assessment on the basis of the entries in the CR and record its conclusions and recommendation clearly in its proceedings. There is no question of upgrading or changing the ACR itself as no person other than the reporting, reviewing and accepting authorities can make entries on the ACR and the same would amount to interfering with and altering the official record. Since the applicant has failed to achieve minimum requirement of three Very Good ACRs for promotion above the grade of T-6 during the assessment period and he did not possess even a single Very Good ACR during his entire assessment period, the DPC was not justified to recommend his case for promotion to T-9 by literally upgrading his ACRs to Very Good for the years 1995-96, 1998-99, 2000-01 and 2001-02. The recommendations of the Assessment Committee for Merit Promotion of the applicant, was not accepted by the competent authority and the competent authority decided not to associate the members of the above Assessment Committee with any Assessment Committee or other committee in future. After the proceedings of the Assessment Committee is signed by the members of the committee, the institute is required to examine each and every recommendation in terms of period of assessment, benchmark, qualification, resume and ACRs and thereafter the same is to be forwarded for approval to the competent authority as per instructions of Annexure R-15, dated 27.03.2001 and R-16, dated 25.02.2004. In view of the these instructions, respondent No.3 has elaborately scrutinized the recommendation of the Assessment Committee and gave his remarks that the applicant did not face any constraints, as claimed by him, and considered by the Assessment Committee. The constraints claimed by the applicant in this Original Application, has been elaborately explained in paragraph 12 of the Counter Reply. The allegation of malafide attributed to respondent No.3 in paragraph 4.10 of the Original Application, has been elaborately denied in the counter reply, which is also supported by necessary documents.
7. The respondents have further stated that the recommendations for promotion of respondent No.5 was accepted as she fulfilled the requirement of three Very Good ACRs during her assessment period. She was given Very Good remarks in her ACRs by the reporting and reviewing officers for all the years except in the year 2005-2006. The comments made by the applicant in respect of respondent no.5 are outside the purview of the period of assessment as it pertains to year 2008-09, when the applicant as reporting officer, has graded her adverse remark of Average. The other cases referred to by the applicant in support of allegation of favoritism and malafide, are also have no consequence, as Shri T.A.Ramiah was given promotion after completion of 24 years of service under the ACP scheme whereas the applicant is claiming Merit Promotion. The allegation of malafide on the ground that his applications was not forwarded for jobs outside the Institute is factually incorrect, as the applicant was permitted to apply for jobs outside the Institute on 17 occasions. However, he was not selected (Annexure R-27). The fact that the applicant was permitted to pursue one year PGDCA course (Annexure P-28) clearly shows that the applicant was never harassed with an aim to distort his future prospects. The instance of not forwarding his application for the job at IIAS is not an act of malafides, but the same was not forwarded as the applicant did not submit the application through proper channel and also that he did not possess the requisite eligibility criteria for the post as would be evident from letters of Annexures R-29 & R-30. The question of communicating adverse grading to the applicant does not arise as the applicant was consistently graded as good officer and he was never downgraded and the same is not an adverse entry (Annexure R-35). So far as the question of communication to the applicant for not fulfilling the benchmark of 3 minimum Very Good ACRs for promotion above the grade of T-6 is concerned, the applicant was denied promotion from T-7 to T-8 grade due to non-fulfillment of the minimum eligibility of 3 Very Good ACRs during the entire assessment period and the same was duly communicated to him and, therefore, the applicant cannot be permitted to argue at this stage that he was not aware that he did not have minimum bench mark of three very good ACRs for promotion to the grades above grade T-6.
8. Heard learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
9. So far as allegation of malafide against respondent No.3 i.e. the Director of the IISS, Bhopal is concerned, all the allegations of instances of malafide made by the applicant against respondent no.3 have been effectively rebutted by the official respondents, in their counter reply and rebuttal is supported by documents. The respondent No.3 in his separate counter reply, which is supported by his affidavit, has denied the allegation of malafide levelled against him. After going through the pleadings of the official respondents in their counter reply as also the documents filed in support thereof, we are of the opinion that the applicant has utterly failed to establish the allegation of malafide against respondent No.3, who has only discharged his official duties as per relevant circulars issued by the ICAR. The counter affidavits filed by the official respondents as well as by respondent No.3 in this regard have not been rebutted by the applicant by filing any rejoinder-affidavit. Thus, after going through the contents of the counter reply and the documents annexed by the respondents, we are of the opinion that the applicant has failed to substantiate the allegation of malafide against the respondent no.3.
10. We also do not find any substance in the contention of the applicant that the respondents have malafidely accepted the recommendations in favour of respondent No.5, as from the uncontroverted pleadings of the official respondents we find that the respondent no.5 fulfilled the requirement of 3 Very Good ACRs during the relevant assessment period and she was given Very Good remarks in her ACRs by the reporting and reviewing officers for all the years except for the year 2005-2006.
11. The Assessment Committee constituted for considering the case of the applicant for promotion from T-7 to T-9 evaluated the performance of the applicant as documentation officer for the period from 1994-95 to 2001-2002 and unanimously recommended his promotion from T-7 to T-9 with the following observations:-
While amending the grading from Good to Very Good for the years 1995-96, 1998-99, 2000-01 and 2001-02, the Assessment Committee observed that the reviewing officer has acknowledged the constraints faced by Dr. A.K.Sharma consistently the years mentioned above, but no substantial support was extended to facilitate his work. The Assessment Committee perused the ACRs and observed that in 1995-96 and subsequent years in Part IV of ACR, the Reporting Officer has recommended for his promotion and observed him to be intelligent, hardworking; sincere and Intelligent person having good knowledge of computers. The work done by Dr. A.K.Sharma during the period like computerization of library resources, introduction of current awareness services, strengthening of journal subscriptions, information dissemination services, maintaining and promoting institutional repositories and editorial contribution in Intuitional publications are some of the factors which considered in scaling Very Good. Based on the above, the members of Assessment Committee unanimously agreed to amend the grade from Good to Very Good for the years mentioned above as per the contents in ICAR letter no F14 (2)/91 Estt IV-576 dated 10/10/1991.
12. The above recommendations of the assessment committee were forwarded by the Director of the IISS to the respondent No.2. The allegation of the applicant is that respondent No.3 while working as Director, IISS at the relevant time, forwarded the recommendations of the Assessment Committee malafidely by incorporating his own uncalled for observations and by disagreeing with the comments of the Assessment Committee with regard to the constraints faced by the applicant. However, from perusal of paragraph four of the guidelines issued by the Ministry vide their letter dated 27th of March 2001 (Annexure R-15), it is clear that a duty has been cast upon the Director of the Institute to examine each and every recommendations made by the Assessment Committee to ensure whether the recommendations are in terms of benchmark, qualifications, resume of ACRs, vigilance clearance through disciplinary angle, communication of adverse remarks and action thereon etc. and any failure on the part of the Director is to expose him to disciplinary action. Therefore, in our considered opinion the Director of the Institute has only performed his duties as per guidelines of Annexure A-15. The counsel for the applicant relying upon various decisions of the Honble Supreme Court, vehemently argued that the applicant could not be denied promotion on the ground of eligibility criteria that he did not possess requisite three Very Good ACRs which is a requisite bench mark for promotion to T-9 post, However, from the pleadings in the counter affidavit and the documents annexed therewith we find that in the case of applicants promotion from T-7 to T-8 also, recommendations of the Assessment Committee were not approved by the competent authority way back in the year 2004 on the ground that he did not possess minimum bench mark of three Very Good ACRs and the same was communicated to the applicant in the year 2004 itself and, therefore, the applicant can not now be permitted to argue that uncommunicated grading in his ACRs can not be made the basis for denial of promotion on the ground that he did not possess the minimum bench mark.
13. The only question for our consideration is whether the Assessment Committee was empowered to justify the constraints faced by the applicant in performing his duties as Documentation Officer and thereby amending the ACR gradings of the applicant for the years 1995-96, 1998-99, 2000-2001 and 2001-2002 from Good to Very Good and unanimously recommending him for promotion to the grade of T-9. The Govt. of India, Ministry of Agriculture vide their letter dated 27.3.2001 (Annexure R-15) have issued guidelines regarding assessment of technical personnel. The Ministry considering that very deviant recommendations were being made without any justification, in respect of assessments from T-7 to T-9 and forwarded to the ICAR Headquarters for approval of the Director General as competent authority in their cases, issued detailed guidelines in this regard and the Directors of the Institute were instructed for processing the assessment cases before forwarding them to ICAR headquarters for approval. In paragraph 3(vii) of the aforesaid guidelines circular of 10.10.1991 has also been referred, which empowers the DPC/Assessment Committee to make own assessment on the basis of entire record instead of relying blindly on the gradings indicated by the reporting or reviewing officer. However, the Director has been further instructed to examine each and every recommendation as detailed in paragraph 4 of the said letter and referred to in the foregoing paragraph. On bare perusal of the recommendations of the Assessment Committee filed as Annexure A-8, which has been forwarded by the Director of the Institute with his comments vide letter dated 15.11.2008 (Annexure A-9), it is clear that the Assessment Committee has not only considered the ACRs of the years from 1994-1995 to 2001-2002, but has also amended the grading from Good to Very Good for four years i.e. for the years 1995-96, 1998-99, 2000-2001 and 2001-2002, by referring to the constraints faced by the applicant consistently for the years mentioned above. In our considered opinion the Assessment Committee was only required to assess and evaluate the performance of the applicant on the basis of ACRs of the applicant for the relevant year, and record their overall assessment with regard to the performance of the applicant as Documentation Officer as reflected from his ACRs. By justifying the constraints faced by the applicant in his performance, the Assessment Committee has virtually entered into the realm of reviewing/ accepting officer, which is not the function of the Assessment Committee, and the Assessment Committee even while putting their overall assessment could not have amended the entries in the ACRs itself for the period referred above. The aforesaid aspect has been clarified by the ICAR in their letter dated 11.3.2010 (Annexure R-37), by which it has been clarified that the DPCs are not supposed to interfere with the ACRs grading, in cases where the overall grading is consistent with the grading under various parameters or attributes. In cases where the overall grading is found to be inconsistent with the grading under various parameters or attributes, the DPC is required to make its own assessment on the basis of entries in the ACRs and record its conclusion and recommendations clearly in its proceedings. There is no question of upgrading or changing the ACR itself. In fact, other than reporting/ reviewing/accepting authority, no one can make entry in an ACR that would amount to interfering with altering official documents. The competent authority after considering the recommendations of the Assessment Committee and after going through the report of the Director, with regard to recommendations of the Assessment Committee, by which the applicant was recommended to be promoted from T-7 to T-9 grade had finally not accepted the recommendations of the Assessment Committee. We also find from the pleadings in the counter affidavit and the documents annexed therewith that the applicants promotion from T-7 to T-8 grade as recommended by the Assessment Committee was earlier also not accepted in the year 2004, on the ground that he does not possess minimum bench mark of three Very Good ACRs for promotion to above T-6 grade and, the same was not challenged by the applicant before any forum. Therefore, not accepting the recommendations of the Assessment Committee by the competent authority for his promotion to T-9 grade by reference to ACRs for the same period can not be faulted.
14. Accordingly we do not find any merit in this Original Application. The same deserves to be and is accordingly dismissed, however, without any order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member rkv ??
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1Sub: Non-selection OA 712/2009
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