Central Administrative Tribunal - Bangalore
R P Sharma vs M/O Railways on 30 May, 2018
1 OA No. 170/00127/2017/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO. 170/00127/2017
DATED THIS THE 30TH DAY OF MAY, 2018
HON'BLE DR. K.B. SURESH, MEMBER (J)
HON'BLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (A)
R.P. Sharma,
S/o Shri Ganga Prasad Sharma,
Aged 58 years,
Working as Chief Electrical Engineer,
Rail Wheel Factory,
Yelahanka, Bengaluru - 560 064,
Residing at D-Suit,
Officers' Rest House, East Colony,
Rail Wheel Factory, Yelahanka,
Bengaluru - 560 064. .....Applicant
(By Advocate ShriA.R. Holla)
Vs.
1. Union of India,
By Secretary,
Ministry of Railways,
(Railway Board), Rail Bhavan,
New Delhi - 110 016.
2. The Chairman,
Railway Board,
Rail Bhavan, New Delhi - 110 001.
3. The General Manager,
Rail Wheel Factory,
Yelahanka, Bengaluru - 560 064.
4. Sri Anup Kumar,
Senior Executive Director (Traction Installation),
Research, Design and
Standards Organization,
Manak Nagar,
Lucknow - 226 006 ....Respondents
2 OA No. 170/00127/2017/CAT/BANGALORE
(By ShriN.S. Prasad, Counsel for the Respondents)
ORDER
HON'BLE PRASANNA KUMAR PRADHAN, MEMBER (A):
The applicant aggrieved by the non consideration of his promotion to Higher Administrative Grade of the Indian Railway Service of Electrical Engineers has filed the present OA seeking the following reliefs:
(i) To quash the order no. E(O)III-2016/AE/463 New Delhi 110001, dated 1.01.2017, issued by the respondent No. 2, Annexure-A14,
(ii) Direct the respondents to convene a Review DPC/Review meeting of the Appointments Committee of the Cabinet, Government of India for considering the applicant for promotion to the Higher Administrative Grade of the Indian Railway Service of Electrical Engineers, in accordance with law in HAG panel of IRSEE cadre for the year 2016-17 and place him above the respondent No.4 and extend consequential benefits accordingly
2. The applicant submits that he is in the Higher Administrative Grade (Non Functional) in IRSEE cadre since 10.07.2014. He worked as Chief Electrical Locomotive Engineer, West Central Railway in Jabalpur from 08.05.2012 to 31.03.2014 and as Chief Electrical Traction Engineer, from 01.04.2014 to 22.06.2014. Thereafter he worked as Chief Project Manager, Railway Electrification. While working so, he was granted the Non Functional Higher Administrative Grade. Thereafter he was transferred as Chief Electrical Engineer in Rail Wheel Factory, Yelahanka where he was working since 09.06.2016.
3. The applicant submits that for the year 2014-15, there were 2 APARs, one for the period from 23.06.2014 to 31.12.2014 and another from 01.01.2015 to 31.03.2015. In the APAR for the period from 23.06.2014 to 31.12.2014 the Reporting Officer had given the grading 'Outstanding' and 3 OA No. 170/00127/2017/CAT/BANGALORE there is no grading by the Reviewing Officer. In the other APAR, i.e., from 01.01.2015 to 31.03.2015, both the Reporting Officer as well as the Reviewing Officer gave the grading 'Outstanding'. In both the APARs mentioned above the Accepting Officer graded him as 'Very Good' after recording the reason as "there have been large complaints about quality of work under his jurisdiction". The applicant submitted representation to Chairman, Railway Board on 16.05.2016 against the grading awarded to him and restore his grading to 'Outstanding' but the same representation was not considered by the respondents. For the APAR for the year 2013-14 the award of grading was given as 'Very Good'. Though he gave a representation on 18.09.2014 (Annexure-A4) highlighting the achievements and requesting for upgrading his grading to 'Outstanding', the same was not considered and he was informed by an order dated 27.08.2015 saying that it has been decided to retain his overall grading as 'Very Good' (Annexure-A6).
4. The applicant submits that for regular promotion to Higher Administrative Grade in IRSEE cadre for the year 2016-17 eligible candidates were considered and vide order dated 16.08.2016 (Annexure-A9) 17 officers were empanelled for promotion to HAG in IRSEE cadre which included some of the persons who are junior to the applicant. However the applicant was left out. Thereafter the applicant submitted a detailed representation to Respondent No.1 on 16.11.2016 mentioning the fact of promotion of juniors to regular HAG and saying that though the applicant was graded 'Outstanding' for 3 years and 'Very Good' for 2 years, he has not been empanelled for 4 OA No. 170/00127/2017/CAT/BANGALORE promotion. The Selection Committee observed that in the APAR for 2013- 14the Reporting Officer recorded "Asset failure has not come down despite several warning to the officer" and important management attributes have been graded 'Good'. The Selection Committee observed the trend of his downward performance and decided to treat the grading of the APAR for the period 2013-14 as 'Good' for the purpose of assessment and held that the applicant does not meet the performance benchmark for HAG. The applicant in his representation submitted that he has not been properly assessed by the Selection Committee and requested to consider him for empanelment for regular HAG based on his seniority. He followed up with one more representation on 12.12.2016 (Annexure-A11&12). Thereafter he was informed vide communication dated 11.01.2017 (Annexure-A14) that the request of the applicant for promotion to HAG grade is not tenable. Aggrieved by the said communication and non consideration of his regular promotion to HAG grade he has filed the present OA seeking the aforesaid reliefs.
5. The applicant further submits that the order at Annexure-A14 is not a speaking order but cryptic. The ground raised by the applicant in his representation ought to have been considered in an objective manner and he should have been empanelled for HAG. His earlier request for upgradation of grading for the year 2013-14 to 'Outstanding' have also been rejected without cogent reasons. The DPC did not assess his case properly and recorded that there have been downward trend in the performance of the applicant which is incorrect. He has possessed 3 'Outstanding' and 2 'Very Good' grades in the 5 OA No. 170/00127/2017/CAT/BANGALORE APARs for the last 5 years and hence he has been denied promotion to regular HAG without any justification. Therefore he sought a direction on the respondents to consider his case for empanelling to HAG for the year 2016-17.
6. The respondents in their reply statement submitted that the applicant did submit a representation on 16.11.2016 seeking regular promotion to HAG cadre which was forwarded to the Railway Board. However the Railway Board in their communication stated that the applicant was considered for empanelment to HA Grade for 2016-17 but was not empanelled as the Selection Committee did not recommend his empanelment in HAG which was also further approved by the Hon'ble Minister of Railways as well as by ACC. In regard to his gradings in APAR, his representation was duly considered and it was decided to retain the remarks and gradingsavailable in the APARs. The respondents further submits that the applicant's claim that there is no basis for the conclusion of the DPC to downgrade the grading of the applicant is not correct. As per Railway Board's letter dated 03.06.2002 and 15.2.2015 (Annexure-R1 & R2) "DPC would not be guided merely by the overall grading in an APAR, but should make its own assessment on the basis of entries in APAR, as sometimes the overall grading in an APAR may be inconsistent with entries, various parameters and attributes". Therefore DPC or Selection Committee for the purpose of its own assessment can discern the overall grading. In other words the DPC can independently consider the suitability of a candidate keeping in view the post for which the selection is made and come to a conclusion. The Selection Committee recorded reasons for non 6 OA No. 170/00127/2017/CAT/BANGALORE empanelment of the applicant in minutes of the proceedings. The subsequent representation by the applicant have also been considered by the competent authority and their decision have been communicated to the applicant. Therefore the contention made by the applicant does not merit any consideration.
7. We have heard the learned counsel for both sides. The learned counsel for the applicant referred to the submissions made in the OA and highlighted the fact that for the promotion to the Higher Administrative Grade the applicant had 3 'Outstanding' and 2 'Very Good' grading for the last 5 years. The suomotu downgrading of 'Very Good' in one APAR to 'Good' by the DPC is grossly unjustified.Rather the authority should have considered the representation made by the applicant for upgrading the APARs to 'Outstanding'. When the juniors or the applicantshave been promoted there is no rationale for denying him the promotion, moreso when the gradings in the APARs met the requirement.Learned counsel mentioned that the applicant has now been promoted to HAG grade vide order dated 30.1.2018 but he ought to have been promoted earlier when his juniors were promoted to regular HAG grade.
8. The learned counsel for the respondents on the other hand referred to the contention made in the reply statement and submits that the DPC examined the APAR in detail and made their assessment about the grading for the year 2013-14.The DPC in its minutes clearly spelt out the reasons for treating the assessment as 'Good' in place of 'Very Good'. Learned counsel 7 OA No. 170/00127/2017/CAT/BANGALORE also referred to a judgment of Allahabad Bench of this Tribunal in OA No. 1462/2016 in which the Tribunal dealt with similar issue pertaining to same selection for HAG grade in the year 2016-17and did not want to interfere with the decision of the Selection Committee in not recommending the applicant therein for promotion to HAG cadre. He also referred to an order of the Hon'ble Apex Court in Civil Appeal No. 2717/2007 pertaining to validity of the selection made by the Departmental Promotion Committee. He further mentioned that vide order dated 30.01.2018 the applicant has since been promoted to the HA grade. He also mentioned that the applicant is due to retire on 30 th April 2018 and he will not be getting any further financial benefits since he is already in the grade on non functional basis. He also produces a copy of the DPC proceedings during the hearing. It was notedduring the hearing that though the observation of the Selection Committee pertains to APARs for the year 2013- 14 the APARs enclosed in the OA pertains to the year 2014-15 only. The learned counsel for the respondents subsequently furnished a copy of the APAR for the year 2013-14.
9. We have carefully considered the facts of the case and submissions made by either side. From the records it clearly emerges that for the year 2013-14 the applicant was graded as 'Very Good'. For the year 2014-15 in case of both the APARs even though the Reporting/Reviewing Authority had graded the applicantas 'Outstanding' the Accepting Authority graded him as 'Very Good' stating reasons. The applicant'srepresentations for upgrading in the APARs for both the years was duly considered by the authority but it was 8 OA No. 170/00127/2017/CAT/BANGALORE decided to retain the grading as such. This issue of upgradation of the gradings in the APAR is not under consideration in the present OA and we do not intend to go into that issue except for putting the facts in perspective.
10. For regular promotion to the HAG grade from the IRSEE cadre for the year 2016-17 a meeting of Selection Committee was held on 20.06.2016. The Selection Committee considered the case of 24 officers for the available 13 vacancies. The applicant was also considered by the Selection Committee. It appears from the minutes of the Selection Committee meeting that the benchmark for promotion to the post of HAG is 'Very Good' plus which means 2 'Outstanding' and 3 'Very Good' in the last 5 APARs. However as per Railway Board's letter of 15.12.2015 there should be minimum 'Very Good' in each of the last 5 APARs. The said communication also mentioned that the DPC would not be guided merely by overall grading of the APAR but should make its own assessment on the basis of the entries in APARs as sometimes the overall grading in an APAR may be inconsistent with entries, various parameters and attributes. In respect of the applicant the Selection Committee in its minutes observed as follows:
"11.8. Selection Committee noted that Shri Ram Prakash Sharma (Sl. No. 17 of the statement at Annexure IX) has been graded as 'Very Good' in the last two APARs for 2013-14 and for 2014-15. Reporting authorities recorded negative remarks viz. "Asset failure has not come down despite several warning (to the officer).." in 2013-14 APAR and ".. there have been large complaint about the quality of work under his jurisdiction" in 2014-15 APAR. Selection Committee also noted that important management attributes have been graded as 'Good' in his APAR for 2013-14. Selection Committee observed the trend of his downward performance in recent years as well. Keeping these in view, Selection Committee decided to treat the grading of his APAR for 2013- 14 as 'Good' for the purpose of his own assessment. The Selection 9 OA No. 170/00127/2017/CAT/BANGALORE Committee has accordingly found that Shri Ram Prakash Sharma does not meet the performance benchmark for HAG and therefore has not recommended his empanelment in HA Grade."
11. We have carefully gone through the APAR for the year 2013-14of the applicant. In the said APAR the reporting authority in his comments on part 2 i.e. details of self appraisal provided by the Reporting Authority has mentioned "partially agreed as asset failure has not come down despite several warning." He has also recorded "satisfactory" in the column pertaining to Task relevant knowledge and quality of output. We also note that under the Management qualities in case of several attributes the gradings has been given as 'good' while in others it is mentioned 'very good'. None of the attributes is graded excellent. On going through the APAR in detail, we are of the view that the observation of Selection Committee in respect of the APAR and assessing the grading as 'good' in theoverall perspective,inspite of the fact that the over grading was shown as 'very good', cannot be faulted with.
12. The learned counsel for the respondents have referred to an order dated 30.08.2017 of the Allahabad Bench in OA No. 1462/2016. The applicant therein was Rajesh Tiwari who was also considered for promotion to the HAG grade for the year 2016-17 by the same Selection Committee and in the same minutes. In his case also the Selection Committee had assessed the rating as 'Good' for one year even though the overall grading in the APAR was mentioned as 'Very Good'. The Tribunal in its order held that the Selection Committee was competent to make its own assessment of suitability of the candidates for promotion and therefore the decision of the Selection 10 OA No. 170/00127/2017/CAT/BANGALORE Committee in not recommending the applicant for promotion to HAG is justified and cannot be interfered by the Tribunal.We are in complete agreement with the observation made and conclusion drawn by the Allahabad Bench in the aforesaid OA. After going through the APAR for year 2013-14 and also the same proceedings of the Selection Committee which was examined by Allahabad Bench of the Tribunal, we are of the view that the observation of the Section Committee in respect of Assessment of the APAR of the applicant for the year 2013-14 and their decision regarding grading as well as in not recommending the applicant for promotion to HAG appears justified and it does not call for any interference by this Tribunal.
13. Therefore, on detailed consideration of the facts and circumstances of the case, we hold that the contention made by the applicant in OA does not merit any consideration and therefore the OA being devoid of merit, stands dismissed. No order as to costs.
(PRASANNA KUMAR PRADHAN) (DR. K.B. SURESH)
MEMBER (A) MEMBER (J)
/ksk/
11 OA No. 170/00127/2017/CAT/BANGALORE
Annexures referred to by the applicants in OA No. 170/00127/2017 Annexure-A1: Copy of the order dated 31.01.2014 Annexure-A2: Copy of the APAR of the applicant from 23.06.2014 to 31.12.2014 Annexure-A3: Copy of the APAR of the applicant from 01.01.2015 to 31.03.2015 Annexure-A4: Copy of the applicant's representation dated 18.09.2014 Annexure-A5: Copy of the order dated 15.12.2014 Annexure-A6: Copy of the order dated 27.08.2015 Annexure-A7: Copy of the order dated 15.12.2015 Annexure-A8: Copy of the applicant's representation dated 16.05.2016 Annexure-A9: Copy of the order dated 16.08.2016 Annexure-A10: Copy of the order dated 29.08.2016 Annexure-A11: Copy of the applicant's representation dated 16.11.2016 Annexure-A12: Copy of the applicant's representation dated 12.12.2016 Annexure-A13: Copy of the letter dated 18.11.2016 Annexure-A14: Copy of the order dated 11.01.2017 Annexure-A15: Copy of the letter dated 19.01.2017 Annexures with Reply Statement Annexure-R1: Copy of the order No. 2002/SCC/3/1 dated 03.06.2002 Annexure-R2: Copy of the order No. 2015/SCC/3/09(pt.) dated 15.12.2015
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