Central Administrative Tribunal - Bangalore
D S Ramesh vs Health And Family Welfare on 1 September, 2023
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OA.No.170/65/2022/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00065/2022
DATED THIS THE 01ST DAY OF SEPTEMBER, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Sri D.S.Ramesh
S/o Chennegowda,
Aged about 58 years,
Working as Stores Supervisor
All India Institute of Speech and Hearing,
Manasagangothri, Mysore-570006
R/o: A7/1, AIISH Layout Bogadi,
2nd Stage, Mysore-570026. ..Applicant.
(By Advocate Shri Ranganatha S. Jois)
Vs.
1.The Union of India,
Rep by its Secretary to Government,
Department of Health and Family Welfare
Nirman Bhavan, III Floor, 'A' Wing,
New Delhi - 110001.
2. The Director,
All India Institute of Speech & Hearing (AIISH),
Manasagangothri, Mysore-570006.
3. Chief Administrative Officer
All India Institute of Speech & Hearing (AIISH),
Mysore-570006. ....Respondents
(By Shri S. Sugumaran, Sr.Panel Counsel for the Respondents)
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OA.No.170/65/2022/CAT/Bangalore Bench
O R D E R (ORAL)
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) Call for records of DPC Proceedings held in pursuance to the circular dated 06.11.2020 to fill up the post of Assistant Registrar (Academics) on promotion, vide Annexure A4, issued by the 2nd respondent.
b) To quash the impugned letter dated 20.5.2021 bearing No.SH /PL /A. (AR) 2020-21 passed by 2nd Respondent (Annexure A-10), vide which the applicant has been informed that the DPC has recommended that none has been found suitable to the post of Assistant Registrar, on Promotion.
c) To direct the 2nd Respondent to conduct a review DPC to consider the case of the Applicant for promotion as Assistant Registrar and give effect to the same with effect from the date he became due for promotion.
d) Grant such other relief(s) as deemed fit to grant to the Applicant in the circumstances of the case.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was selected for the post of Store Keeper vide Office Memorandum dated 25.6.1987. He was later promoted as Office 3 OA.No.170/65/2022/CAT/Bangalore Bench Superintendent w.e.f. 29.02.2012 vide OM dated 16.03.2012. The Applicant was directed to look after the work pertaining to both the Establishment and Stores as per the OM dated 16.3.2012. The Applicant had satisfactorily completed the probationary period as evidenced from OM dated 09.06.2014. He was further promoted as Assistant Administrative Officer and he reported to duty on 04.11.2016 as per OM dated 08.11.2016. The post of Assistant Administrative Officer is in the scale of Rs.9300-34800 plus grade pay of Rs. 4,600.
The Applicant has been working as Assistant Administrative Officer since 04.11.2016 till date.
b) The 2nd respondent issued a circular dated 06.11.2020 for filling up of the post of Assistant Registrar. As per the recruitment rules for the post of Assistant Registrar, the said post is to be filled firstly by way of promotion of the officials of the institute, failing which by deputation, failing which by direct recruitment. The eligibility criteria as per recruitment rules (Annexure-A5) for the post was also stated in the said circular.
c) The Applicant being eligible submitted his application on 20.11.2020 along with self-assessment report as sought in Annexure-A6. The post of Assistant Registrar was to fall vacant on 31.01.2021 and as on that date the applicant had completed 3 years' experience. There was no one else in the in-service category and he alone was eligible for consideration for promotion.
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OA.No.170/65/2022/CAT/Bangalore Bench
d) The applicant has always been sincere and has been discharging his duties with utmost dedication and honesty. The applicant is an in- service eligible candidate. He never come to the adverse notice of the Administration. He was never penalized, or warned by proceedings against him under disciplinary Rules during the review period. Further no penalty against him is under currency during the period of promotion. The processing of selection through DPC was completed but the applicant was not selected.
e) The Applicant is aggrieved by the advertisement dated 29.06.2021, by which Applications were called for filling up of the post of Assistant Registrar, on deputation basis, even though the Applicant was eligible and qualified for being considered for promotion. The applicant was the only eligible candidate in the zone of consideration. There is no comparative evaluation of the officer's merit. The DPC will categorize the officer as fit /not fit.
f) The assessment and grading showed that Applicant has been graded as follows:
2014-15 - 7
2015-16 - 6
2016-17 - 6
2017-18 - 4.9
2018-19 - 5.7
g) The bench mark is 'GOOD' for Group 'A' posts up to Rs12,000- 16,500 (V CPC, In VI CPC Grade pay upto 7,600). Any grading of 4 and above 5 OA.No.170/65/2022/CAT/Bangalore Bench and below 6 in APAR including for promotion from lower Group to Group 'A posts/grades services shall be treated as "GOOD". Therefore, the applicant was eligible to be promoted as Assistant Registrar and there is no reason to reject the case for promotion of the applicant.
h) O.M. dated 08.02.2002 point 3.4(ii) is reproduced below for kind perusal of the Tribunal.
"The DPC shall for promotion to posts / grades / services in the aforesaid categories, grade officers as 'fit' or unfit' only with reference to the bench-mark of 'good'. Only those who are graded as 'fit' shall be included in the select panel prepared by the DPC in order of their inter-se seniority in the feeder grade. Thus, as already explained in paragraph 3.2 above, there shall be no supersession in promotion among these who are found 'fit' by the DPC in terms of the aforesaid prescribed bench mark of good".
i) The post of Assistant Registrar is a non-selection post as per recruitment rules. Guidelines In this regard is reproduced below:
"The principal of zone of consideration is not applicable. There is no comparative evaluation of the officer's merit. The DPC will categorize the officer fit /not fit, name of the officer found fit will be arranged accordingly to their inter-se seniority".
j) The applicant is aggrieved not only by his non-selection and promotion to the post of Assistant Registrar, but also with the notification seeking 6 OA.No.170/65/2022/CAT/Bangalore Bench to fill up the said post by deputation, when a candidate for promotion is very much available as per the recruitment Rules.
k) The post in question became available for filling up on and from 01.02.2021 due to the retirement of the incumbent officer on 30.01.2021 A/N. In that view of the matter the applicant fulfilled the requirement of two years of service in the grade pay of Rs.4600 as on 01.02.2021 (his appointment to the post with grade pay of Rs.4600 being on 04.11.2016). The applicant being fully eligible and qualified was entitled to be considered for promotion. Therefore, issuing the impugned notification for filling it up by deputation is contrary to Article 14 & 16 (1) of the Constitution of India.
3. The respondents have filed their written statement wherein they have averred as follows:
a) It is submitted that for filling up of the Group-A post of Assistant Registrar, the mode of recruitment as per RR is promotion failing which by deputation/ direct recruitment.
b) Accordingly, the mode of recruitment by promotion was explored first and the applicant was considered by the DPC held on 12.03.2021.
However, the DPC found him not suitable for promotion to the post of Assistant Registrar.
c) Wherefore the Respondents resorted to calling for deputation with approval of the competent authority, and advertised on 29.06.2021 vide 7 OA.No.170/65/2022/CAT/Bangalore Bench advertisement no. 07/2021. The above actions of the respondents are in conformity with the Recruitment Rules and as such the applicant does not deserve any consideration from this Tribunal as there is no merit and application of the applicant deserves to be dismissed accordingly.
d) The application filed by the applicant has no merits either on facts or on law and deserves to be dismissed in the interest of justices.
e) Although, the applicant was the only officer eligible for consideration of promotion for the post of Assistant Registrar, the suitability whether a candidate can be recommended for promotion or otherwise is based on the recommendation of the Group 'A' DPC and its approval by the competent authority. The DPC had not recommended the applicant for promotion.
f) The performance of the applicant in the post held by him has not been rated high as claimed by the applicant. The assessment and grading in his APARs is presented below:
Year Final General assessment- Details of representation on adverse remarks/ disposal average (Pen picture) of representation numerical grading (on scale of 1-10) 2018- 5.7 An officer with Representation made by the officer against the rating 19 potential to improve. on individual parameters of assessment and the final numerical grading Has to pay more attention to detail. Extracts from disposal of representation The officer has to take "Several times, the lapses and shortcomings have been more responsibilities pointed out both by the reporting and reviewing officer and has to improve the on multiple files, with respect to poor drafting, wrong quality of the work of application of Rules etc., Establishment section. The officer has also been callous in his approach He should also be towards his work as may be seen in his submission of punctual to his duties. his APAR to the Reporting Officer only on 04.7.2019, 8 OA.No.170/65/2022/CAT/Bangalore Bench Year Final General assessment- Details of representation on adverse remarks/ disposal average (Pen picture) of representation numerical grading (on scale of 1-10) whereas he was supposed to submit on or before 17.5.2019, as per circular in this regard.
Further, processing of LTC application of a Research Assistant in December 2018, wherein he had recommended wrongly for availing of LTC.
Shri D.S. Ramesh, had also several instances of late coming and non-recording of his attendance in the biometric attendance system during the reporting year as follows:
Late in : 36 occasions
Late in no out : 51 occasions
No out : 49 occasions
When sought for his explanation, he put the blame on the biometric machines that it had not captured his fingerprints. He also hid the fact of his having been provided with a RFID card.
Shri D.S. Ramesh has been found wanting on many aspects, and has not shown the degree of responsibility and diligence expected of him. All these deficiencies on his part continued, despite bringing to his notice during the reporting period.
In view of the above, the grading and evaluation as recorded in his APAR for the years 2018-19 hold good and remain as such."
2017- 4.9 While the officer deals Representation made by the officer against the general 18 with routine matters, he assessment and final numerical grading.
has to put extra efforts in improving his skills, Extracts from the disposal of representation has to pay more "Several times, these lapses and shortcomings have attention to detail and been pointed out both by the Reporting Officer as well exercise diligence and as Reviewing Officer. care, avoiding delay in critical matters such as 1.Inordinate delay in the disposal of RTI query sent to RTI, where inordinate Establishment Section on 27.4.2017. Despite several delay was noticed. reminders from the CPIO, the matter was kept pending and he was directed to expedite action as in the Extra efforts are Reporting Officer's Note No.SH/Cad0/2017-18 dated expected from the 26.5.2017.
officer.
2.Gross deficiencies have been found in the draft Office orders/letter to external agencies and Office Memorandum which was pointed out from time-to- time.
3.The officer is also very inattentive and does not take care to write the correct dates on the file, indicating callousness in his work.
4.The finalization of fixation of VII CPC and fixation of pay for Grade Pay Rs.8700/- was delayed, as a result of which the Accounts Section had to get it done from a UDC. Further the information about the multiplier for the Grade Pay of Rs.8700 was wrongly calculated and 9 OA.No.170/65/2022/CAT/Bangalore Bench Year Final General assessment- Details of representation on adverse remarks/ disposal average (Pen picture) of representation numerical grading (on scale of 1-10) DoPT OM substantiating the same had not been submitted.
These are only samples of how the officer was working during the reporting period.
In view of the above, the grading and evaluation as recorded in his APAR for the years 2017-18 hold good and remain as such".
2016- 6 The officer's strength
17 include good relations.
The officer can Nil
improve with respect to
noting and drafting and
paying attention to
details
2015- 6 An official with good
16 potential. With focus,
attention to detail, is Nil
capable of better
performance and to
shoulder higher
responsibilities
2014- 7 Has shown lot of
15 improvement in
discharging
Establishment section Nil
work. Needs
improvement in
scrutiny of CEA claims
and other papers put up
by dealing assistants.
The officer is capable
of better performance
and has positive
attitude overall.
g) A copy of the Minutes of the DPC which considered the case of Shri
Ramesh D S to the post of Assistant Registrar is quite speaking and the respondents crave leave of the Tribunal to produce the same as and when required for its perusal.
h) The applicant was informed about the decision vide OM No SH/PL/A.(AR))2021-22, dated May 20,2021. It is also informed that Mr. Ramesh DS has indulged in misrepresentation in the Verification portion of the OA. No. 65/2022 in page 16 by mentioning his Father's 10 OA.No.170/65/2022/CAT/Bangalore Bench name as Chennegowda and also identifying himself as Stores Supervisor of AIISH. He holds the post of Assistant Administrative Officer and his father's name as per official records is Sannegowda.
4. In his rejoinder to the reply, the applicant has pleaded as follows:
a) Applicant submits that the Bench mark required for promotion upto level 11 in 7th CPC is "Good" i.e a numerical assessment between 4 to
5.9. In the applicant's case, his bench marks is 'Good' only as required by rule for promotion. Hence, he is fully eligible to be considered for promotion.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is challenging his non-selection for promotion by the DPC held for the post of Assistant Registrar on 12.3.2021. He has also subsequently challenged the notification issued by the respondents inviting applications for the post of Assistant Registrar from eligible candidates for consideration of appointment on deputation. In the process for filling up the post of Assistant Registrar the failing which clause has been invoked by the respondents and they have resorted to calling for applications from candidates in order to fill up the post deputation, with the approval of the competent authority. This is in conformity with the existing recruitment rules in force for the post.
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OA.No.170/65/2022/CAT/Bangalore Bench
7. During the course of hearing, the respondents were directed to produce a copy of the DPC proceedings held on 12.3.2021 for filling up the post of Assistant Registrar on promotion. Copy of the proceedings were accordingly produced by the respondents on 01.9.2023.
8. A perusal of the DPC proceedings indicates that the applicant was duly considered for promotion for filling up the post of Assistant Registrar on promotion basis. However, after perusal of the documents including CR/ APARs. Integrity certificate, Vigilance Report, Career Profile of the officer, etc., the DPC summarised its deliberations as under:
1. The post to which promotion is being considered is that of the Assistant Registrar which is a Group A post. The duties and responsibilities attached to Assistant Registrar of an institute of the magnitude of AIISH is quite immense. It is a sensitive post and calls for independent functioning with utmost devotion and attention to detail.
2. The Committee observed that the decline in the Overall grading in the recent three previous years when he was functioning as AAO does not augur well in the context of his candidature for holding a higher post which falls under Group A.
3. The consistent remarks of being inattentive to detail, being callous with dates, being non-punctual and poor drafting skills does not demonstrate officer like qualities and makes him unsuitable to hold a Group A post and also with specific reference to the post under 12 OA.No.170/65/2022/CAT/Bangalore Bench consideration. An Assistant Registrar is supposed to have high levels of attention to detail and also deals with confidential matters, requiring most carefulness, besides good drafting skills.
4. The Committee discussed that as laid down in the guidelines referred in para 20 8 1.2 of the Handbook of Personnel Officers, advancement in officer's career should not be regarded as a matter of course, but should be earned by dint of hard work, good conduct and result oriented performance as reflected in the annual confidential reports. .
5. The Committee also noticed that displeasure of superior officers and authority have been conveyed to him in the immediate three reporting years 2019-20, 2018-19 and 2017-18 as reflected in the ACRs/APARs and his representation(s) on the above have also been disposed of with supporting instances and through speaking orders"
9. After due deliberations, and an objective assessment of suitability of the applicant for promotion to the post of Assistant Registrar, the DPC has assessed him as not suitable for promotion to the post of Assistant Registrar. Hence, the DPC has not recommended the applicant for promotion to the post of Assistant Registrar.
10. There are a plethora of Court judgments relating to DPC/Selection Committee proceedings, where it has been held that it is not the function of the courts to hear matters before it treating them as appeals over the decisions of the DPC/ Selection Committee. The question as to whether a 13 OA.No.170/65/2022/CAT/Bangalore Bench candidate is fit for a particular post or not has to be decided by the duly constituted expert body such as the DPC in the present case. The courts have very limited scope of judicial review in such matters unless it is on the ground of alleged malafide or in any violation of statutory rules or guidelines.
11. The Honourable Apex Court in the case of Union Public Service Commission vs L.P. Tiwari & Ors in Appeal (civil) 5155 of 2006 vide its order dated 22 November, 2006 has observed as follows:
"It is now more or less well-settled that the evaluation made by an expert committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. Such view was reiterated as late as in 2005 in the case of U.P.S.C. vs. K. Rajaiah & Ors., reported in (2005) 10 SCC 15, wherein the aforesaid Rules for the purpose of promotion to the I.P.S. Cadre was under consideration. Apart from the above, at no stage of the proceedings, either before the Tribunal or the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the comparative merits of the respective candidates."
12. The Honourable Apex Court in the case of Union Of India & Anr vs S.K. Goel & Ors in Appeal (civil) 689 of 2007 vide its order dated 12 February, 2007 has held that "..the DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not called for...".
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OA.No.170/65/2022/CAT/Bangalore Bench
13. The Honourable Apex Court in the case of Baidyanath Yadav versus Aditya Narayan Roy & Ors. in Civil Appeal No. 8847 of 2019 vide its order dated 19th November 2019, has observed as follows:
"5. At the heart of the dispute before us for consideration lies the scope of judicial review of the process governing the selection of non- SCS officers to the IAS, for which it is important to take stock of the position governing judicial review of selections made by a duly constituted expert body. 5.1 It is by now well-settled that the scope of such review is limited, and the Tribunal or Court cannot re-assess the merit of the individual candidates. As observed by a 2-Judge Bench of this Court in M.V. Thimmaiah v. UPSC, (2008) 2 SCC 119:
"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..."
5.2 This view has subsequently been affirmed by this Court in various decisions, including the recent decision of a 2-Judge Bench of this Court in M. Sathiya Priya (supra), of which one of us was a member. In this decision, this Court, while setting aside the re-assessment undertaken by the Tribunal and the High Court of the recommendations made by the Selection Committee to the UPSC for appointments to be made to the Indian Police Service by promotion, observed 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 15 OA.No.170/65/2022/CAT/Bangalore Bench 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 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."
5.3 It can be concluded from the above that it was not for the High Court to address questions of comparative merit of the candidates, and neither is it appropriate for us to do the same. All we may look into is whether there was any serious violation of statutory rules, or any bias, mala fides or arbitrariness in the entire selection process."
14. There has been no allegation of any malafide or any violation of statutory rules, or bias, on the part of DPC, in the present case. Hence, this Tribunal, 16 OA.No.170/65/2022/CAT/Bangalore Bench finds no reason to review the recommendations of the DPC, which have also been subsequently accepted by the Competent Authority.
15. The respondents after finding that there was no suitable person available for filling up the post of Assistant Registrar on promotion basis, as per the provisions of the Recruitment Rules, invoked the failing which clause and decided to fill up the post on deputation basis for which advertisement No.07/2021 dated 29.06.2021 has been issued subsequently.
16. Keeping in view the above points, there is no merit whatsoever in the present OA and it deserves to be dismissed.
17. 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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