Calcutta High Court (Appellete Side)
Dr. Ashis Kumar Mukhopadhyay vs Indian Institute Of Technology & Ors on 16 September, 2016
W.P. No. 10620 (W) of 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Dr. Ashis Kumar Mukhopadhyay
Vs.
Indian Institute of Technology & Ors.
For the Petitioner : Mr. R. N. Bag, Advocate
Mr. Sudhir Kumar Bhowmik, Advocate
Ms. Payel Bag, Advocate
For the Respondent : Mr. Arunava Ghosh, Advocate
Nos. 1 to 3 Mr. Soumya Majumdar, Advocate
Ms. Sreya Basu Mullick, Advocate
Hearing concluded on : September 9, 2016
Judgment on : September 16, 2016
DEBANGSU BASAK, J.:-
The petitioner has assailed the decision of the competent authority of Indian Institute of Technology communicated through the impugned Memo dated March 28, 2016. By the impugned memo, the institute has rejected the request of the petitioner for grant of Senior Administrative Grade (SAG) under the Dynamic Assured Career Progression Scheme (DACPS) for the reasons stated therein.
Learned Advocate for the petitioner has submitted that, the petitioner was appointed as a medical officer in the institute. Since the nature of employment of the petitioner is such that there is not scope for promotion, the Central Government had introduced DACPS on October 29, 2008 to provide for persons similarly situated as that of the petitioner. He has referred to the DACPS as introduced by the memorandum dated October 29, 2008 and has submitted that, the question of evaluation of the performance of a person covered under the scheme for the purpose of grant of the next higher scale of pay does not arise. He has submitted that, the concept of Annual Confidential Report (ACR) / Annual Performance Assessment Report (APAR) for the purpose of grant of the next higher scale of pay under the DACPS does not arise. He has submitted that, ACR/APAR is assessed under a different scheme. The same has no manner of application for the purpose of consideration under the DACPS. He has further submitted that, the petitioner was never informed by the competent authority that, the petitioner was assessed for the ACR/APAR and that, the petitioner had obtained only a 'Good' mark for the ACR/APAR for the years concerned. The petitioner was not afforded an opportunity by the competent authority to enhance his performance to have 'Very Good' in the ACR/APAR for the relevant years.
Learned Advocate for the petitioner has referred to a communication received by the petitioner under the Right to Information Act, 2005 from the Indian Institute of Technology, Delhi. He has submitted that, it would appear from such writing dated March 28, 2016 that, the medical officer therein was granted the SAG without the ACR/APAR.
Learned Advocate for the institute has contended that, the grant of the next higher scale of pay under the DACPS is not automatic on the residence of a pay band for the tenure concerned. The receipt of the next level of grade pay and pay band is depended not only upon the quantum of residence upon a particular pay of scale but also the performance assessment of the candidate concerned. He has submitted that, in the event of vacancy arising, the candidate of SAG has to be granted the promotion. Therefore according to him, an ACR/APAR is done before granting SAG. He has submitted that, the decision of the competent authority of the institute as communicated under the impugned memo is correct, in the facts of this case.
I have considered the rival contentions of the parties and the materials made available on record.
The petitioner was working as a medical officer with the institute with effect from January 8, 1992. The Central Government had introduced DACPS by the office memorandum dated July 21, 2009 in respect of medical and dental doctors in the Central Government. Applying the DACPS, the institute by a writing dated February 6, 2012 conveyed the approval of the competent authority to grant of financial upgradation to the petitioner with effect from October 29, 2008. The Central Government had issued a clarification with regard to DACPS on August 7, 2012. The petitioner had made a representation on October 6, 2015 for upgradation in the SAG with grade pay of Rs.10,000/- from October 29, 2015 as he had completed 7 years in grade pay of Rs.8,700/- in terms of DACPS dated October 29, 2008. Such representation was negated by the impugned memo.
Two reasons have been assigned by the impugned memo dated March 28, 2016 for negating the request of the petitioner. Both the reasons are interconnected. Essentially, the competent authority of the institute has claimed that, for financial upgradation to the grade pay of Rs.7,600/- and above, the bench mark prescription in the ACR/APAR is 'Very Good' and is to be adhered rigorously in all ACRs/ APARs of last 5 years under consideration as a candidate goes higher up on the ladder. Since on consideration of the ACR/APAR of the petitioner for the relevant period, it was found that, one ACR/APAR in the year of 2011 was 'Very Good' and the rests are graded as 'Good' the petitioner cannot be granted the request.
DACPS as introduced by the Central Government on October 29, 2008 and as clarified subsequently on August 7, 2012 does not contemplate ACR/APAR for the purpose of migration to the next level. No material has been placed before the Court to suggest that, consideration of ACR/APAR is essential for the purpose of migrating from one pay band to other under the DACPS. DACPS has been introduced to provide for a situation where an employee does not have a promotional avenue. ACRs/APARs are assessed for the purpose of grant of promotion. Therefore, without DACPS having specifically introduced ACR and APAR for the purposes of grant of upgradation in pay to an employee who does not have a promotional avenue, the same need not be imported for the purpose of consideration of a request under the DACPS. Viewed from such perspective the impugned decision of the competent authority of the institute as contained in the impugned memo dated March 28, 2016 is bad.
In such circumstances, the impugned memo dated March 28, 2016 and the decision of the competent authority of the institute as contained therein are set aside. The institute is directed to reconsider its decision and to grant the request made by the petitioner.
W.P. No. 10620 (W) of 2016 is allowed. No order as to costs. Urgent certified website copy of this judgment, if applied for, be given to the parties on priority basis.
[DEBANGSU BASAK, J.]