Central Administrative Tribunal - Bangalore
R Manavalan vs Centre For Development Of Advanced ... on 19 April, 2023
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OA.No.170/1305/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/01305/2019
Order Reserved on: 02.03.2023
Date of Order: 19.04.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
R. Manavalan
Son of G Ramanujam
Aged about 45 years
Working as Principal Technical Officer,
Centre for Development of Advanced Computing,
Residing at SF-07, Ittina Padma Apartment,
Kempegowda Under Pass Road,
Near Vijinapura SBI, Ramamurthy Nagar,
Bangalore - 560 016. ..Applicant.
(By Advocate Shri Abilash Raju)
Vs.
1.Centre for Development of Advanced Computing
C-DAC Innovation Park
S.No.34/B/1, Panchavati Pashan,
Pune 411 008
Represented by its Director General
2. Centre for Development of Advanced Computing
C-DAC Innovation Park
S.No.34/B/1, Panchavati Pashan,
Pune 411 008,
Represented by its Director (HRD).
3. Centre for Development of Advanced Computing
Knowledge Park Centre,
Opposite to HAL Aero Engine Division,
Old Madras Road,
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OA.No.170/1305/2019/CAT/Bangalore Bench
Near Byappanahalli Metro Terminal
Bangalore - 560 038
Represented by its Centre Head
4. Ganga Prasad G.L
Son of Gonibeed Lakshminarayana Rao
Aged about 61 years
Senior Director and Centre Head (Retired),
CDAC, Bangalore,
Residing at No.191, 9th Main Road,
NTI Layout, Vidyaranyapura
Bangalore 560 007.
5. Union of India
Ministry of Electronics and Information Technology
Electronics Niketan,
No.6, CGO Complex, Lodhi Road,
New Delhi- 110 003. ....Respondents
(By Smt K.M. Sai Apabharana, Counsel for Respondents)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash Order bearing No. CHR-XI/1-B/JP/4431 dated 30.9.2019, issued by Respondent No.2 (Annexure A-16), vide which his representation dated 20.6.2019 for rectifying the APAR grades assigned by the Reviewing Officer for the year 2017, has been rejected.
b) Direct the respondent No.2 to restore the APAR ratings assigned by the First Level Authority in the APAR 2017 and consequently promote the applicant to the post of Joint Director w.e.f. July 2016 and grant all 3 OA.No.170/1305/2019/CAT/Bangalore Bench consequential benefits on par with his juniors and other employees who completed MRP and were promoted w.e.f. July 2016.
c) Pass such other order or direction as deemed just and necessary in the facts and circumstances of the case.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) Applicant joined service of the Respondent No.1, Centre for Development of Advanced Computing (CDAC) on 07.02.2001 as Member Technical Staff. Subsequently he was promoted as Senior Technical Officer in July 2006. He was further promoted as Principal Technical Officer in July 2012 and is currently working in the said post.
The minimum residency period (MRP) for the next higher post viz., Joint Director is 4 years. The Applicant became eligible for the same in July 2016.
b) The MRP required for the promotion to the post of Joint Director from the post of Principal Technical Officer is 4 years and the minimum APAR rating required is 6 and above. Applicant completed his residency period for the post of Joint Director in July 2016 and has been within the Zone of consideration since then.
c) In December 2018, Respondent No.4, who was then the Centre Head, initiated the promotion process for the post of Joint Director in so far as the Bangalore Centre in concerned. All the Principal Technical Officers who had completed MRP in July 2016 were called for the 4 OA.No.170/1305/2019/CAT/Bangalore Bench interview scheduled to be held on 20.12.2018. Applicant attended the same and appeared before the Interview Committee. The results of the interview were declared on 02.01.2019, and the Applicant was not recommended for promotion. Nine candidates from different Groups including a candidate from Business Division of CDAC, who worked under Respondent No. 4 were promoted to the post of Joint Director as per the Science and Technology Interview Promotion Scheme of MeitY-CDAC.
d) Applicant approached Respondent No.3 and sought for a copy of the APARs for 2016 and 2017 on 08.01.2019. Accordingly, on 10.01.2019, Applicant received a copy of the APARs for 2016 and 2017. The Applicant noticed a drastic reduction in his APAR for 2017 ratings by the Second Level Officer, (Respondent No.4), who was also a part of the Interview Committee.
e) The applicant was called for another interview for promotion to the post of Joint Director which was held on 11.02.2019. In this interview panel again the Respondent No: 4 was one of the members of the interview board. The results of the second interview were declared on 30.04.2019 and the Applicant was again not recommended for promotion.
f) Respondent No.3, who is currently holding the post of Centre Head, took over charge from Respondent No.4 with effect from May 2019.
g) Applicant was called for the third interview for the promotion to the post of Joint Director. Applicant appeared before the third Interview 5 OA.No.170/1305/2019/CAT/Bangalore Bench Committee on 24.06.2019. On 05.07.2019 the results of the third interview were declared and the Applicant was shocked to see that many of his juniors were successful, but he was again not recommended for promotion. In all, it is pertinent to note that a total of 21 Principal Technical Officers participated in the interview process held in December 2018, February 2019 and June 2019, out of which 18 persons were promoted to the post of Joint Director.
h) The applicant has alleged bias on the part of Respondent No. 4. He had deliberately given him a low rating in his APAR for 2017, as the reviewing authority. He had also been a Member of the Interview Committee, which did not recommend him for promotion in two interviews held in December 2018 and February 2019. The applicant has also alleged bias against Respondent No.3, who was Member of the Interview Board for the interview held in June 2019.
i) The applicant has further alleged that during the course of the first interview, Respondent No.4 brought to the notice of the Interview Committee the low rating of applicant's APAR as well as AWR. This indicates that Respondent No.4 had some personal and official bias towards the applicant. Similarly, in the second interview held on 11.2.2019, Respondent No.4 again made reference to the low rating assigned in APARs 2017 and also mentioned about the rating assigned by the Screening Committee. This reflected his personal bias for the reasons best known to him.
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3. The respondents have filed their written statement wherein they have averred as follows:
a) As per the promotion policy of C-DAC, the minimum average APAR rating of an employee for the last four years for considering him for promotion and calling him for interview is required to be six. A separate screening committee comprising of two senior technical members, one external expert and one HR representative, who should all be above the level to which promotion is considered, is constituted by the Executive Director of the Centre to assess the scientific content of the work done by the eligible employee during the relevant year. The Screening Committee prepares report as per the prescribed format for each employee and assigns him a grade after assessing the scientific content of the work reported by the employee in his Annual Work Report (AWR). This report of the Screening Committee is also made available to the interview board in confidence.
b) The interview board for employees of Level-12 to which the Applicant belongs, comprises of five members i.e., Chairman, who is an external member of appropriate level, Executive Director/Centre Head of another C-DAC Centre, Executive Director/Centre Head of the respective C-DAC Centre, Expert from a premier academic institution or industry/R&D Lab and Director (HRD) or his nominee.
c) The interview board, after due interaction with the concerned employee, assesses his/her potential and the quality of the scientific content of the work done and prepares a one para summary making 7 OA.No.170/1305/2019/CAT/Bangalore Bench recommendations for promoting or not promoting him. The recommendations of the interview board are put up to the Director General for approval.
d) In the present case, the average rating of the Applicant, for the last four years was more than six. He was therefore, rightly considered for promotion, and interviewed on three different occasions. The reduction of his rating in the year 2017 did not come in the way of him being eligible for consideration for promotion and appearing for interview thrice, as his average rating was always above the threshold limit of six. He was interviewed by three different interview boards comprising of different members and all of them found him unfit for promotion after assessing the scientific and technical contents of the works done by him and his performance during the interviews.
e) The Applicant has made false allegations of official and personal bias against Respondent No.4, who was a member of two of the three interview boards that interviewed him, as well as against Respondent No.3, who was a member of the third interview Board.
f) All the members of the interview committee were persons of eminence in their respective fields. Respondent No.3/Respondent No: 4 were only one of the members of the Committee and the decisions taken by the interview committee were collective decisions of all members and it is preposterous to allege that such eminent persons can be influenced by Respondent No.3 or Respondent No.4.8
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g) The Applicant has wrongly presumed that if the reduction in APAR rating for the year 2017 made by the Respondent No.4 is set aside and the higher rating given by the First Level Authority is restored, it would automatically result in his promotion to the next grade. A higher rating for 2017, even if restored, would not make any difference so far as his promotion is concerned. The average of four years ratings is taken only for the purpose of considering employees for promotion and selecting them for interview. The role of APAR ratings is relegated to the background afterwards. It is only after assessing the technical and scientific contents of his works done, the knowledge possessed by him, his performance in the interview, and after taking all relevant factors into consideration, three different interview boards have found the Applicant unfit for promotion.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant has sought for quashing of the order dated 30.9.2019, in which his request for rectification of APAR grades assigned to him by the Reviewing officer for the year 2017, has been rejected and then to consider his case for promotion to the post of Joint Director w.e.f. July 2016.
6. The applicant has specially alleged bias on the part of Respondent No.4, who assigned him a low APAR grading and subsequently being instrumental in allegedly influencing the interview committee, of which he 9 OA.No.170/1305/2019/CAT/Bangalore Bench was a member, for not recommending his promotion to the post of Joint Director.
7. The respondents have denied the allegation of any bias and have stated that the applicant had been interviewed thrice by three different committees. The Members of such Committees were all eminent Scientists in their respective area, who cannot be presumed to be influenced by Respondent No.3 or Respondent No.4, who just happen to be a member of the Committee.
8. Even if it is presumed that APAR of the year 2017, which had been downgraded by the Reviewing authority, is restored, it will not make any significant difference on the issue of shortlisting of the applicant for consideration, since the average APAR rating for the last 4 years are considered for shortlisting the candidates and person with average APAR of 6 or above are considered for promotion.
9. After shortlisting of the eligible candidates, the promotion is decided based upon the recommendations of the interview committee, which is set up for the purpose. This committee comprises of 5 eminent Scientists/experts. The concerned Centre Head is also ex officio one of the members of this committee.
10. The three interview committees have consistently found the applicant as not fit for promotion.
11. A copy of the assessment form of the interview committee in the case of the applicant for the interviews held on 20.12.2018, 11.2.2019 and 24.6.2019, 10 OA.No.170/1305/2019/CAT/Bangalore Bench were produced by the respondents in their reply. These recommendations of the interview committee were perused.
12. For the interview held on 20.12.2018, the committee recommended the applicant as 'unfit' for promotion, although no specific reasons were provided with regards to assessment of specific content of the work. However, for the subsequent interviews dated 11.2.2019 and 24.6.2019, there was specific reasons recorded by the interview committee, as to why the applicant had been assessed as not fit for promotion.
13. A study of the three Assessment Forms of the Interview Committees in the case of the applicant reveal the following details:
Interview Committee for the interview held on 20.12.2018 comprised of the following members:
1. Shri Rai Vargherese, Director (HRD), Corporate Officer, C- DAC - Member.
2. Shri Magesh.E, Director, C-DAC, Hyderabad - Member.
3. Shri Shreekrishna Bhat. P, STD, NIC, Bengaluru - Member.
4. Shri Ganga Prasad G.L, Senior Director & Centre Head, C- DAC, Bengaluru - Member. (Respondent No: 4)
5. Shri Ramakrishnan. G, Scientist G Technology Director ADA, Bengaluru - Chairman.
This Committee assessed the applicant as unfit without assigning any specific reasons on the interview assessment form. The Interview Committee for the interview held on 11.02.2019 comprised of the following members:
1. Shri Rai Vargherese, Director (HRD), Corporate Officer, C- DAC - Member.
2. Shri Magesh. E, Director, C-DAC, Hyderabad - Member. 11
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3. Shri Anil Kumar. V, Sr. Principal Scientist, CSIR-4PI, Bengaluru
- Member.
4. Shri Ganga Prasad G.L, Senior Director & Centre Head, C- DAC, Bengaluru - Member. (Respondent No: 4)
5. Shri K. Parthasarathy, Director, Information Technology, Antrix Corporate Office, Bengaluru - Chairman.
This Committee did not recommend the applicant for promotion and noted the following shortcomings:
Limited Technical Know how Lack of Clarity in the areas claimed to be worked Need to improve the research aptitude Appears looking for opportunities rather than proactive Not ready for higher role.
The 3rd interview Committee for the interview held on 24.6.2019 comprising of the following members:
1. Shri Rai Vargherese, Director (HRD), Corporate Officer, C- DAC - Member.
2. Shri Magesh. E, Director, C-DAC, Hyderabad - Member.
3. Shri Chidambara. K, Professor, PESIT, Bengaluru - Member.
4. Shri B.S. Bindhumadhava, Senior Director & Centre Head, C- DAC, Bengaluru - Member.
5. Shri Ramakrishnan. G, Scientist G Technology Director ADA, Bengaluru - Chairman.
This Committee also did not recommend the applicant for promotion and observed as follows:
"Carried out routine activities of evaluating licence agreements of all open-source tools of C-BDSS & MLSTACK; Review of technical documents, Conceptualizing the projects, etc., Not demonstrated taking any new initiatives, Lack of Vision, Technical Know-how, Deliverables etc., Lack of management and Leadership skills, No motivation to take new role, Needs improvement, needs counselling."
14. It is observed that besides the applicant's reviewing officer (Shri Ganga Prasad G.L, Respondent No: 4) there were 4 other senior members, who 12 OA.No.170/1305/2019/CAT/Bangalore Bench specifically found the applicant to be unfit for promotion. In the 3rd interview board, Respondent No.4 was not a member at all. Respondent No: 3 was a member in the third interview committee. Both the respondents No: 3, and Respondent No: 4 were part of the respective interview committees, in their capacity as the Centre Head at the time the interviews were held. The Centre Head of the concerned CDAC is supposed to be a member of the interview committee as per the rules.
15. Keeping the above points in view, the stand of the applicant that he was denied promotion due to alleged bias exhibited by Respondent No.4 (in the first and second interviews), and by Respondent No: 3, (in the third interview) cannot be countenanced.
16. It is a settled law that the scope of judicial review of Courts and/or Tribunals in matters of selection is extremely limited. Courts have repeatedly affirmed that recommendations of Selection Committees cannot be challenged except on grounds of malafide or violations of Statutory Rules. Court cannot sit as an Appellate Authority to examine the recommendations or findings of a Selection Committee. Supreme Court has observed in several judgements that the discretion to select is that of a Selection Committee only and it is not the business of the Court to examine its recommendations for evaluating and substituting its opinion for that of the Committee. Selection Committees are carefully constituted and are manned by experts in the field and their assessments have to be invariably respected and trusted unless they are actuated and bristle with malice or arbitrariness. 13
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17. The Honourable Supreme Court in M.V. Thimmaiah v. UPSC, (2008) 2 SCC 119 held has under:-
21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion.
18. The Honourable Supreme Court in Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 SCC 305 : 1990 SCC (L&S) 80 : (1991) 16 ATC 528] observed as follows:
―12. ... it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits 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 on the subject. The court has no such expertise. ... in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.‚
19. In National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman [1992 Supp (2) SCC 481: 1992 SCC (L&S) 959: (1992) 21 ATC 680] 14 OA.No.170/1305/2019/CAT/Bangalore Bench the Honourable Apex Court held that the expert committee's finding should not be lightly interfered. It was held as follows:
(SCC p. 482) ―...The function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. Where selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility and there is no rule or regulation brought to the notice of the Court requiring the Selection Committee to record reasons, the Selection Committee is under no legal obligation to record reasons in support of its decision of selecting one candidate in preference to another. Even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement.‚
20. In UPSC v. M. Sathiya Priya, (2018) 15 SCC 796 the Honourable Supreme Court set aside the exercise undertaken by the Tribunal and the High Court to reassess the recommendations of a Selection Committee constituted by the UPSC for appointment by promotion to the Indian Police Service and held as follows:-
―17. The Selection Committee consists of experts in the field. It is presided over by the Chairman or a Member of UPSC and is duly represented by the officers of the Central Government and the State Government who have expertise in the matter. In our considered opinion, when a High-Level Committee or an expert body has considered the merit of each of the candidates, assessed the grading and considered their cases for promotion, it is not open to CAT and the High Court to sit over the assessment made by the Selection Committee as an appellate authority. The question as to how the categories are assessed in light of the relevant records and as to 15 OA.No.170/1305/2019/CAT/Bangalore Bench what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. The courts have very limited scope of judicial review in such matters.
21. Based on the above observations made by the Apex Court, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, sitting in judicial review, to enter into the merits of a selection process. This task is the prerogative of and in the expert domain of the Selection Committee. This is subject to the caveat that if there are proven allegations of malafide or violation of statutory rules, Courts can intervene. It is not the decision but only the decision-making process which is open to judicial scrutiny of the Courts.
22. In the present case, the applicant has been found to be unfit during the course of three different selection processes/interviews, which were conducted by committees consisting of 5 senior scientists/experts each in that area. The interview committee besides interviewing the candidates, also assessed the personal records as well as the AWR of the candidates, and it is only after a proper assessment that the interview board has come to its conclusions.16
OA.No.170/1305/2019/CAT/Bangalore Bench There appears to be, therefore, no scope for any judicial review of the three assessments of the applicant done by the respondents at this stage.
23. It is however noticed that the applicant was assessed three times through interviews called on 20.12.2018, 11.2.2019 and 24.6.2019.
24. A purview of the promotion scheme for Group 'A' S&T staff of the CDAC, notified vide Office Memorandum 20/16 dated 07.11.2016 (Annexure A-4) by the respondents indicates the following provisions relating to the assessment for promotions:
"7. The assessment of S&T officers for promotion to the next grade, from a particular grade, would only be three times and thereafter the employee could be covered under MACP scheme notified by DoPT according to the provisions of that scheme. However, an employee who has been granted any grade under MACP can be considered for next grade under this policy according to the eligibility and other provisions of this policy.
8. The respective centers will be responsible for carrying out the process for promotions up to GP 6600 and corporate HRD will process the promotions into GP 7600 and above.
9. The promotions are to be carried out twice in a year with the crucial dates as 1st of January and 1st of July every year. The process for assessment should begin by October and April every year and end by mid-December and mid-June, so that all promotions are given effect to as on 1st January and 1st July respectively every year. If, for some reasons, there are administrative delays in concluding 17 OA.No.170/1305/2019/CAT/Bangalore Bench the assessment process, the promotions shall, however, be given effect from as on 1st January/ 1st July of the eligible year."
(Emphasis added)
25. The applicant, was therefore eligible to be considered/assessed only three times for the purpose of promotion under these rules. The rules also specified that the process for assessment for promotions is to be carried out twice in a year. The cycle for assessment process has also been specified to be between April to mid-June and from October to mid- December every year.
26. In the case of the applicant, however, he has been assessed thrice on 20.12.2018, 11.2.2019 and 24.6.2019. The gap between two consecutive assessments is unreasonably short, being less than two months (20.12.2018 and 11.2.2019) in the first instance, and slightly more than 4 months (11.2.2019 and 24.6.2019) in the second instance. It is not understood as to how an objective technical assessment of the work done by the applicant would undergo any significant change in a couple of months. It would have been reasonable if the assessment of the applicant had been considered only once in every half year cycle, so that the applicant had an opportunity to improve his functioning and grading in the subsequent assessment, if not found suitable in the initial assessment.
27. His assessment three times within a short span of around 6 months i.e., between 20.12.2018 and 24.6.2019, indicates that he has been assessed as unfit thrice in an unreasonably short span of time. This would work to his disadvantage, particularly when it is considered that he has only three 18 OA.No.170/1305/2019/CAT/Bangalore Bench opportunities under these rules to be assessed for promotion, and subsequently, he is only eligible to be considered for grant of MACP.
28. It would therefore be appropriate and reasonable to allow the applicant one more chance for assessment, presuming that the two interview/assessments, held in his case on 20.12.2018 and 11.2.2019, overlap each other and are one and the same, since these were held after a gap of less than two months.
29. Accordingly, the respondents are directed to grant the applicant one more opportunity of assessment as per the process prescribed for consideration of his suitability for promotion under the promotion scheme for Group "A" S&T staff. This assessment process shall be completed within a period of six weeks from the date of receipt of the certified copy of this order. He shall subsequently be also considered and granted promotion if assessed as suitable under the rules.
30. The OA is accordingly disposed of with the above directions. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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