Central Administrative Tribunal - Bangalore
M Sunil Kumar vs Council Of Scientific And Industrial ... on 1 June, 2023
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OA.No.190/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00190/2019
ORDER RESERVED ON: 17.03.2023
DATE OF ORDER: 01.06.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
M. Sunil Kumar,
S/o Late Shri. Mohanlal,
Aged about 51 years,
Working at O/o CSIR,
National Aerospace Laboratories,
Old Airport Road, Kodihalli,
Bangalore- 560 017,
Residing at D-13,
NAL Colony, Kodihalli,
Bangalore-560 017. ....Applicant
(By Advocate Shri M. Subramanya Bhat)
Vs.
1.The Council of Scientific & Industrial Research,
Represented by the Director General,
Anusandhan Bhawan,
No. 2 Rafi Marg,
New Delhi -110001.
2.The Chief Vigilance Officer,
The Council of Scientific & Industrial Research,
Anusandhan Bhawan,
No. 2 Rafi Marg,
New Delhi - 110001.
3. Shri. Manish Kumar Sharma,
Major, Working as Deputy Financial Advisor
CSIR HQ, Anusandhan Bhawan,
No. 2 Rafi Marg,
New Delhi - 110001.
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4. Shri. Upendra Kumar,
Major. Working as Deputy Financial Advisor
CSIR HQ, Anusandhan Bhawan,
No. 2 Rafi Marg,
New Delhi- 110001.
5. Dr. Sanjay Kumar,
Director,
CSIR-Institute of Himalayan Resource
Biotechnology (IHBT)
Palampur-176061 (H.P.). ....Respondents
(By Shri K. Ananda, Advocate 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 reliefs:
a) To set aside the promotion of 3rd and 4th Respondents issued vide office memorandum in No.3-4(C)/2018-E1 dated 21.12.2018 (Annexure-A10) so far it relates to the 3rd and 4th Respondents
b) To set aside the impugned office memorandum in No.15-3(113)/2018-
Vig dated 30.11.2018 (Annexure-A11) issued by the second respondent.
c) Direct the Respondents to consider the case of the applicant for promotion to the post of Deputy Financial Advisor/ Controller of Finance and Accounts from the date on which the 3rd and 4th Respondents were promoted.
d) Consequently draw all consequential benefits and pass any other order or direction or grant any other relief as deemed fit by this Tribunal 3 OA.No.190/2019/CAT/Bangalore Bench including the cost of the exemplary cost, in the interest of justice, equity and fair play in administration.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The Applicant was initially appointed as LDC at CSIR HQ, New Delhi w.e.f. 27.08.1984. Subsequently, he was promoted to the post of UDC, Assistant (General) Grade-I, and Section Officer (Finance &Accounts) after qualifying Departmental Test on merit basis. The applicant was subsequently promoted to the post of Finance & Accounts Officer in the grade pay of Rs.6600 vide Office memorandum No.3-4(C)/2008-
E.l dated 26.10.2009 (Annexure-A3).
b) The Respondents issued the final seniority list of FAO vide letter dated 01.06.2018 and in the said final seniority list as on 01.04.2018 (Annexure-A5), the applicant is at serial No.13 while the 3rd and 4th Respondents are placed at serial No.14 and 16 respectively.
c) The Respondents issued an office memorandum in No.3-4(C)/2018-E1 dated 10.08.2018 (Annexure-A6), whereby the applicant was transferred to NAL, Bangalore.
d) The Respondents issued tentative details of vacancies and eligibility list for consideration of group A Common cadre for the vacancy year 2018- 2019 vide letter dated 10.08.2018 (Annexure-A7). 4
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e) The DPC scheduled initially from 17th to 20th September 2018 vide letter dated 10.09.2018 was postponed and subsequently was held on 12th and 13th December, 2018.
f) The Respondents issued the panel for the post of Deputy Financial Advisor/ Controller of Finance and Accounts vide office memorandum in No.3-3(b)/2018- El dated 20.12.,2018 (Annexure-A9). In the said panel, the 3rd and 4th Respondents are placed at serial No. 5 and 6 respectively, while the applicant did not find a place in the panel. Subsequently, by office memorandum dated 21.12.2018 (Annexure- A10) the Respondent No.3 and 4 have been posted as DFA/Controller of Finance and Accounts.
g) The second Respondent issued the impugned office memorandum in No.15-3(113)/2018-Vig dated 30.11.2018, stipulating that the letter No. 31-2(34)/2017-18 budget dated 21.07.2016 was issued by the applicant, the then Finance and Accounts Officer, Budget Section CSIR HQ, New Delhi, without following the O.M dated 19.05.2017.
h) The issuance of impugned office memorandum dated 30.11.2018 by the 2nd Respondent appears to be camouflage to deny the promotion benefit to the applicant. It is not known as to how the O.M dated 19.05.2017 can be applied to the letter issued on 21.07.2016. Even otherwise, the said office memorandum cannot be a bar for promotion of the applicant, as no disciplinary proceedings have been initiated, nor pending against the applicant.
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i) The applicant was deputed to conduct internal audit of CSIR-IHBT, Palampur, for the financial year 2016-2017 and 2017-2018 during the period from 18th to 29th June 2018. An important part of the audit report has been placed as at Annexure-A12 wherein major irregularities were pointed out by the applicant.
j) The said organization of CSIR-IHBT, Palampur is headed by the Respondent No.5 i.e., Director (Dr. Sanjay Kumar) who is also the Chairman of the Transfer and Posting Committee, as well as the Chairman of the Departmental Promotion Committee. The applicant has been victimized for having raised the audit objections regarding serious irregularities at CSIR - IHBT by issuing the transfer order to NAL, Bangalore on the recommendation of the Transfer and Posting Committee on 10.08.2018. Subsequently, the same authority might have played his role in DPC, wherein the case of the applicant, who was in the zone of consideration and who was senior to the Respondent No.3 and 4 was under consideration. It is therefore obvious that the applicant was denied promotion for having discharged his duties and responsibilities which was done in the interest of the Nation.
k) As per Recruitment & Promotion Rules of CSIR, 16 candidates are required to be called for interview for promotion against the six vacant post. In order to accommodate Respondent No. 4 in the list of 16 Candidates, Shri. Sudipto Chatterjee has been shown in the seniority list of Common Cadre Officers of CSIR as Deputy Financial Advisor on 01.04.2018 circulated by CSIR vide letter No.3-5(b)/2018-E.I dated 6 OA.No.190/2019/CAT/Bangalore Bench 01.06.2018. He has joined as Deputy Financial Advisor at CSIR HQ on 02.04.2018.
l) The applicant qualified the department test specifically conducted for the post of Section Officer (Finance & Accounts) on merit basis in 1997, whereas the Respondent No.3 and 4 have been appointed through direct recruitment as Section Officer (Finance & Accounts) on the basis of their rank acquired in Combined Administrative Services Examination (CASE) of CSIR in 1999. Hence, the Respondent No.3 & 4 cannot be considered as specialized persons in Finance & Accounts in comparison to the applicant.
3. The respondents have filed their written statement wherein they have averred as follows:
a) CSIR has its own Governing Body which is the supreme authority of the Organisation that makes Rules and adopts Government of India Rules/Guidelines either in full or in part with or without modification by virtue of provisions made in its Bye-laws. As per Bye-law 11 of the CSIR, the Recruitment and Promotions, including Assessment and Merit Promotions, in respect of all categories of the staff of the society are regulated in accordance with the detailed scheme formulated by the Governing Body, CSIR in this behalf. By virtue of Bye-law 11, the Recruitment and Promotions of all the administrative staff, are governed by Administrative Services (Recruitment & Promotions) Rules, 1982 (ASRP Rules).7
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b) As per the ASRP Rules, Recruitment to the post of Deputy Financial Advisor/Controller of Finance and Accounts shall be made by promotion on the basis of merit on the recommendations of the Department Promotion Committee (DPC) which shall interview the eligible candidates from amongst the Finance & Accounts Officers in the pay-scale of Rs. 10,000-15,200 who have rendered not less than 5 years of approved service in that grade. If, in a particular year, sufficient number of eligible officers are not available in CSIR, the DG CSIR may, at his discretion, relax the qualifying service to 4 years.
c) The applicant was initially appointed as LDC on Compassionate Grounds at CSIR Head Quarters, New Delhi on 27.08.1984 and thereafter, he was promoted as UDC, Assistant (General) Grade-l, Section Officer (Finance & Accounts) through the qualifying departmental test on merit basis. Subsequently, the applicant was promoted as Finance and Accounts Officer on 14.09.2009. It is pertinent to state here that, while the applicant was promoted to the post of Finance and Accounts Officer, he himself had superseded 11 candidates as he was at S. No. 12 in the list of candidates who were considered by the DPC for promotion to the post of Finance and Accounts Officer.
d) The Tentative Seniority List-2018 was published by the 1st Respondent vide letter dated 12.04.2018 and thereafter, the Final Seniority List- 2018 was issued vide letter dated 01.06.2018. The applicant did not 8 OA.No.190/2019/CAT/Bangalore Bench raise any objection to this Seniority List published by the 1st Respondent.
e) The 1st Respondent published the Tentative Details of the Vacancies and Eligibility List etc., of various Groups 'A' Posts for the Year 2018 vide CSIR Web Notification dated 10.08.2018. In the said Notification, it is clearly mentioned at Clause-6 that, "Any Submissions/ Representations on this issue may be sent on e-mail ID [email protected] latest by 17.08.2018. Thereafter, no representation will be entertained."
f) In pursuance of the said clause, several representations were made by the concerned officers and the same were considered and disposed of vide Notification dated 16.11.2018. The applicant did not file any representation or objection to the said Tentative Details of Vacancies and Eligibility List and did not question the inclusion of the name of the 4th Respondent in the said list on or before the stipulated date i.e. 17.08.2018. The applicant, therefore, is now estopped from raising any objections in respect of the said list.
g) The applicant and Respondent No. 3 & 4 were the candidates for the post of Deputy Financial Advisor/Controller of Finance and Accounts. There were 6 vacancies for the post of Deputy Financial Advisor/Controller of Finance and Accounts and as per the Rules, Zone of consideration was 16 (Notified Posts x 2 + 4). Accordingly, in the Zone of consideration, the name of applicant and the Respondents No. 3 and 4 were included.
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h) The Departmental Promotion Committee meeting for considering the eligible candidates for promotion to the post of Deputy Financial Advisor/Controller of Finance and Accounts was held on 12th and 13th December, 2018. For the 6 posts, 16 candidates were called for interview as per Rules as stated above. However, only 14 candidates attended the interview and 02 candidates did not attend the interview.
i) As per the Rules, the post of Deputy Financial Advisor/Controller of Finance and Accounts is to be filled on the basis of merit. The DPC prepares the Panel observing the following principle:
i. When the promotions are made within Group 'A' post or Services, the bench mark will be 'Very Good'.
ii. The DPC shall grade the officers as "Outstanding", "Very Good", "Good", "Average" or "Unfit" as the case may be. However, only those officers who are graded as 'Very Good' and above will be included in the Select Panel, by placing the Officers Graded as 'Outstanding' on the top, followed by those graded as 'Very Good' subject to availability of vacancies. The Officers with the same grading will be empanelled by maintaining their inter-se seniority as in the feeder grade.
j) CSIR ASRP Rules, 1982 provide for an element of Interview.
Accordingly, the DPC shall award its final grading on the basis of overall performance of the candidates i.e, after assessing them in the interview and also after taking into account their service records as 10 OA.No.190/2019/CAT/Bangalore Bench reflected in their Annual Confidential Report/Open-Annual Performance Appraisals Reports with particular reference to the ACRs/O-APARs for 5 preceding years. As per rules, in evaluating the ACRs/O-APARs, the DPC shall not be guided merely by overall grading recorded by the Reporting/Reviewing Officer in ARCs/O- APARs, but should make its own assessment on the basis of entries in ACRs/O-APARS mainly because of the fact that, some time, overall grading in ACRs/O-APARs may be inconsistent with the grading under various parameters or attributes.
k) As per the extent orders on reservation, the benefit of reservation in promotion is to be provided only up to the lowest rung in Group A. Since, the post of Deputy Financial Advisor/Controller of Finance and Accounts is not the lowest rung Group 'A' post in Finance and Accounts Cadre, the reservation is not applicable.
l) The DOPT vide O.M. No. 35034/7/97 Estt(D) dated 08.02.2002 enumerated regarding procedure to be observed by the DPC and also mentioned that, there would be no supersession in selection promotions and discontinued the practice of supersession in promotions even if the mode of promotion is "Selection by Merit". The Governing Body (GB) of the 1st Respondent, in its 153rd meeting held on 01.05.2002 considered the proposal for the adoption of the ibid DOPT O M. dated 08.02.2002. After careful consideration, the Governing Body approved that promotions to and within the Group 'A' of Common Cadre shall continue to be made as per DOPT guidelines on DPC as were in force 11 OA.No.190/2019/CAT/Bangalore Bench prior to Notification of the revised guidelines vide O. M. dated 08.02.2002. In other words, the guidelines followed in these cases hitherto, shall continue to be followed. This decision of the Governing Body of the 1st Respondent was notified vide letter dated 11.06.2002 and therefore, supersession is allowed for the post of Deputy Financial Advisor/Controller of Finance and Accounts.
m) The DPC meeting was held on 13.12.2018 and the DPC awarded its Final Grading on the basis of overall performance of the candidates i.e., after assessing them in the interview and taking into account their service records as reflected in the Annual Confidential Report/Open- Annual Performance Appraisal Reports. The Grading awarded to the applicant is 'Good' and the Grading awarded to Respondent No. 3 & 4 is 'Very Good'. Accordingly, based on the Final Grading given by the DPC, the DPC recommended empanelment of 6 Finance and Accounts Officers for promotion to the post of Deputy Financial Advisor/Controller of Finance and Accounts. The Panel was notified vide O.M. dated 20.12.2018. It is submitted that the contentions of the applicant that, the Respondents No 3 and 4 have wrongly superseded the applicant though being junior to the applicant is not sustainable in the eyes of law, since they were promotes as per the existing rules of CSIR. Even the applicant had earlier superseded 11 candidates when he was considered for the promotion to the post of Finance and Accounts Officer. Hence, now, the applicant cannot raise the contention of supersession.
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n) The applicant has also alleged that, the 5th Respondent being the Chairman of DPC is biased against the applicant, as the applicant had submitted an Internal Audit Report against the 5th Respondent. This is totally incorrect and false. Internal Audit is a routine activity in the 1st Respondent Organisation and it is meant to strengthen the system. Any observations or para made by the Audit Team are the observations/paras of the team as a whole and not of any individual person. No individual, such as the applicant, can be singled out for raising observations/audit para.
o) The applicant had produced Anenxure-A12 stating that, the same is the portion of the Audit Report of the CSIR-Institute of Himalayan Bio- Resource Technology (IHBT), Palampur for the year 2016-17 and 2017-18 which is one of the Laboratory under the 1st Respondent and the 5th Respondent is the Director of the said Laboratory. This Annexure-A12 as produced by the applicant is not a part of the said Audit Report. The entire Audit Report for the year 2016-17 and 2017- 18 is herewith produced as Annexure-R14. The 5th Respondent was not aware of the said observation as stated in Annexure-A12 and hence, the question of any bias towards the applicant does not arise.
p) The 5th Respondent being the Chairman of the DPC has not played any negative role or acted in a biased manner against the applicant and his case was considered as equal to other candidates who were called for the interview.
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q) The applicant has also taken the contention that, in view of the Audit Observation made against the 5th Respondent, the applicant was victimized in issuing the transfer order to CSIR-NAL, Bengaluru on the recommendation of the Transfer and Posting Committee on 10.08.2018. This is also incorrect and false. In a routine activity, several officers were transferred as per the Transfer and Posting Guidelines of the 1st Respondent as per Annexure-A6. The transfer was not only of the applicant and, therefore, the allegation of the applicant regarding bias or victimization does not arise.
r) The Departmental Promotion Committee was held on 13th December, 2018 at the Head Quarters of the 1st Respondent to assess the candidates who appeared for interview for the promotion to the post of Deputy Financial Advisor/Controller of Finance and Accounts. The Committee by considering the overall performance of the candidates including the applicant as stated above, had recommended the names of the suitable candidates for the promotion unanimously as per the extant Rules of the 1st Respondent. It is made clear that, none of the Committee Members have any difference of Opinion on the proceedings. This committee included an external expert from the Office of Comptroller and Auditor General (CAG) of India
s) There were many other candidates besides the applicant, who were above the respondents 3 and 4 in seniority list who could not get promotion. These candidates, who were also senior to the applicant, were not part of the Audit Team that visited CSIR-IHBT during June, 14 OA.No.190/2019/CAT/Bangalore Bench 2018. Therefore, it is very clear that, no biased decision has been taken against any of the candidates who appeared before the DPC.
t) It is well settled law in service matters, that once the candidate has participated in a Recruitment/Promotion process, he/she cannot challenge it after being declared unsuccessful as Principles of Estoppels would operate. It is submitted that, the Hon'ble Supreme Court of India has time and again upheld the said position of law and therefore, the applicant having participated in the promotion process, cannot turn around and say that the very procedure adopted is not correct. In view of the said principles of law, the above O.A. is liable to be rejected.
u) The impugned OM dated 30.11.2018 was only a show cause notice giving the applicant an opportunity to give his version regarding a discrepancy. Issuance of the OM dated 30.11.2018 cannot be linked with the proceedings of DPC held on 12th & 13th December, 2018, as vigilance clearance in respect of the applicant was granted for the same and the OM dated 30.11.2018 and the DPC are two separate issues which do not have any correlation.
v) Shri Sudipto Chatterjee had already been empanelled for promotion to the post of Deputy Financial Advisor/Controller of Finance and Accounts for the Vacancy Year 2017-18. His name, therefore, could not be included in the zone of consideration for the vacancy year 2018. He was not eligible for being considered again for the post of Deputy Financial Advisor/Controller of Finance and Accounts for the vacancy 15 OA.No.190/2019/CAT/Bangalore Bench year 2018. The zone of consideration (ZOC) for vacancy year 2018 was notified vide OM dated 10.08.2018. On that date the panel for vacancy year 2017-18 had already been operated and Sh. Sudipto Chatterjee had joined the post of Deputy Financial Advisor at CSIR Hqrs. on 02.04.2018. Therefore, there was no question of inclusion of his name in the Zone of Consideration (ZOC) for the Vacancy Year 2018. The Applicant never challenged the ZOC notified vide OM dated 10.08.2018. Inclusion of Sh. Sudipto Chatterjee's name in the Zone of Consideration for the Vacancy Year 2018 would have vitiated the Zone of Consideration.
w) The relief sought by the applicant in paras 8 (ii) of the OA relates to two issues viz. first for considering him for promotion and second for quashing OM dated 30.11.2018. These are two separate administrative issues, having no link with each other. The prayer of the applicant is liable to be out rightly rejected as the applicant is seeking multiple remedies in the prayer.
4. The respondents filed a Memo dated 09.8.2021 stating that during the pendency of the OA, the applicant got promoted to the post of Controller of Finance & Accounts on 28.12.2020.
5. The applicant has filed a rejoinder to the reply filed by the respondents and has averred as follows:
a) The un-amended rule does not give any jurisdiction or authority to the DPC to have its own course of evaluation in total disregard to the grading given to an Officer in the APR. Therefore, the contention 16 OA.No.190/2019/CAT/Bangalore Bench raised by the respondents is devoid of merit and without any basis.
Under no circumstances the DPC can overlook the grading of the reviewing authority. Under the recruitment rules, DPC has not been conferred with any power to accord and assign grading independently. The rules have been framed by the Governing Body of the CSIR and this statutory body has not conferred any authority to the DPC to have recourse of evaluation of its own.
b) The applicant was awarded the grading of "Outstanding" continuously for 4 years from 2011-12 to 2014 - 15. He was awarded grading of "Very Good" in the year 2015-16. Therefore, what was required to be considered by the DPC at the time of evaluation of the relative merit of the candidates is the above gradings of the applicant.
c) The DPC under no circumstances can assess and evaluate a candidate by altering the grading given to the candidate. Therefore, the whole process and method adopted by the DPC, as claimed by the respondents, cannot be countenanced, as the same is in violation of the well settled principles of law.
d) The respondents have stated in their statement of objection in paragraph 13, that the audit report prepared by the applicant and his team does not attribute anything to the fifth respondent and in the absence of any such imputation, allegation of bias is untenable. This contention is liable to be rejected in view of a document which the applicant could secure under RTI Act. A copy of the same is produced as Annexure-A13. This document is a revised internal audit report 17 OA.No.190/2019/CAT/Bangalore Bench dated 20th March 2019. By this revised report, two paragraphs were added to the original audit report at paragraph 6.08 and 6.09. These two paragraphs make it sufficiently clear and apparent that financial irregularities were attributed to the Internal Purchase Committee (IPC) and the recommendations of the said committee were approved by the fifth respondent, which resulted in huge financial loss to the government.
e) The applicant was subsequently considered for promotion in the year 2020 by the DPC. However, by delaying the promotion by 2 years, the applicant has been made to suffer irreparable injury and injustice. On the one hand his juniors were promoted by overlooking his Merit and seniority and on the other hand, he was made to suffer financial loss and also future promotional prospects. In this view of the matter, non- consideration of the applicant's claim for promotion by the respondents is wholly arbitrary and without any justification.
6. Heard learned counsels for the parties and perused the pleadings made by them.
7. In the present case, the applicant is aggrieved by his non-selection for promotion to the post of Deputy Financial Advisor/ Controller of Finance & Accounts, during the process of selection by the DPC in December 2018.
8. He has alleged that he has not been properly evaluated by the DPC, which awarded him a grading of 'Good' resulting in his non-selection. He has also alleged that the DPC should not have ignored his "Outstanding" grading in his APARs while assessing him overall as 'Good' in the DPC. His 18 OA.No.190/2019/CAT/Bangalore Bench contention is that the DPC has no authority to revise the grading given by the assessing officer and reviewing officer in the APARs.
9. He has also alleged bias on the part of the 5th respondent, who was the Chairman of the DPC, on the ground that the applicant, while functioning as part of an Internal Audit team of CSIR, had raised audit observations against certain financial transactions made by the CSIR IHBT, Palampur. This Institute was headed by the 5th respondent at that point of time.
10. He has also questioned the inclusion of the 4th respondent in the eligibility list in the zone of consideration for promotion to the post of Deputy Financial Advisor and Accounts Officer for the vacancies of 2018-2019 on the ground that Shri Sudipto Chatterjee was not holding the post of Deputy Financial Advisor and Accounts Officer as on 01.4.2018, since he had been promoted on 02.4.2018. By removing his name from the tentative eligibility list, the 4th respondent was accommodated with a view to ensure that he is not only included in the tentative list but is also given the promotion.
11. The respondents were directed to produce the original record pertaining to the DPC in question. A perusal of these proceedings indicated that as per the instructions, the DPC was required to assess the eligible officers through the process of interview besides consideration of their APARs for the past 5 years. Subsequent to this assessment, each of the eligible officer was required to be graded as being 'Outstanding', 'Very Good', 'Good' or 'Average', as the case may be. The officers who were graded as "Very Good" and above were required to be placed in the selection panel by placing those who were graded as 'Outstanding' first, followed by those who 19 OA.No.190/2019/CAT/Bangalore Bench were graded as 'Very Good', subject to availability of vacancies. The officers in the same grading were to be empanelled by maintaining the inter- se seniority as in the feeder grade.
12. The copy of the original DPC proceedings in the present case was examined. It was noted that this DPC comprised of 8 Members as follows:
1. Dr. Sanjay Kumar, Director, CSIR-IHBT, Chairman
2. Prof. S.K. Barik, Director, CSIR-NBRI Member
3. Dr.B.Chandrasekaran,Director,CSIR-CLRI Member
4. Dr. Sudeep Kumar, Head, Mission Directorate, CSIR Member
5. Navneet Gupta, Principal Director (ER-II)Representative of CAG Member
6. K.R. Vaidheeswaran, Joint Secretary (Admn.),CSIR Ex-Officio Member
7. Sumita Sarkar, Financial Advisor,CSIR Ex-Officio Member
8. Dr. Ram Swarup, Retd. Chief Scientist,CSIR-NPL, (Representative of SC/ST) Member
13. The assessment made by the DPC clearly stated that the DPC was required to award its final grading on the basis of overall performance i.e., after assessing them in the interview and taking into account their service as reflected in their ACR/O-APARs, with particular reference to ACRs/O- APARs for the 5 preceding years. It further stated that in evaluating ACR/O- APARs, the DPC should not be guided merely by the overall grading recorded by the Reporting/Reviewing Officer in ACR/O-APARs, but should make its own assessment on the basis of entries in the ACRs/O-APARs mainly because of the fact that sometimes overall grading in ACR/O- 20
OA.No.190/2019/CAT/Bangalore Bench APARs may be inconsistent with the grading under various parameters or attributes.
14. Out of the 16 eligible candidates considered for promotion to the post of Dy.
FA/COFA for the vacancy year 2018, 14 candidates attended the meeting on 13.12.2018 including the applicant. The final grading given by the DPC after their interview and assessment of service records, indicated that 6 persons were assessed as 'Very Good', whereas 5 candidates (including the applicant) were assessed as 'Good', 2 persons were considered as 'Unfit' and in one case, proceedings were kept in a sealed cover. It was also noticed that some of the persons who were senior to the applicant have also been graded as either 'Unfit' or 'Good' only.
15. As far as the allegation of bias against the 5th respondent is concerned, it is noticed that the DPC comprises of eight Senior Scientists/officers including the 5th Respondent. It cannot be presumed that one person can prevail over the other members in such a large DPC. The proceedings of the DPC have been signed unanimously by all the members, without indicating any dissent note.
16. The allegation that the applicant had filed audit observations against the Institute headed by the 5th respondent could have caused any bias also cannot be countenanced. The audit observations have been conveyed to the Institute headed by the 5th respondent on 20.3.2019, whereas the DPC assessment took place in December 2018. Moreover, the process of internal audit observations is a routine administrative activity and it cannot be presumed that since the applicant was part of the audit team (comprising of other 21 OA.No.190/2019/CAT/Bangalore Bench persons as well) the audit observations could have caused a bias on the part of the 5th respondent.
17. The contention of the applicant that issuance of OM dated 30.11.2018 by the 2nd respondent had a bearing on the grading by the DPC, cannot be countenanced. This OM dated 30.11.2018, is only a notice to the applicant seeking his version/comments. It had not culminated in any disciplinary proceedings against him. Moreover, vigilance clearance had been granted to the applicant before he was considered by the DPC. Hence, this OM dated 30.11.2018, cannot be said to have any impact on the assessment of the applicant made by the DPC.
18. It has also been brought to our notice by both the parties, that the applicant has subsequently been considered and promoted to the post of Deputy Financial Advisor and Accounts Officer vide OM dated 22.8.2020, in subsequent proceedings.
19. Keeping the above points in view, the present OA is devoid of any merit whatsoever and deserves to be dismissed.
20. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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