Central Administrative Tribunal - Delhi
Vinay Kumar vs Union Of India on 7 January, 2010
Central Administrative Tribunal Principal Bench OA No.1476/2009 New Delhi, this the 7th day of January, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Vinay Kumar S/o Shri Lalan Prasad R/o A-70, Ordnance Apartment, H-Block, Vikaspuri, New Delhi 110 018. Applicant. (By Advocate : Shri D. R. Gupta) Versus 1. Union of India Through the Secretary Department of Information Technology, Ministry of Communication & Information Technology, Electronics Niketan, CGO Complex, Lodhi Road, New Delhi-3. 2. Director General National Informatics Centre, Block A, CGO Complex, Lodhi Road, New Delhi-3. 3. Dr. (Mrs.) Vandana Sharma DDG & Head RS & GIS Division, National Informatics Centre, Block A, CGO Complex, Lodhi Road, New Delhi-3. . Respondents. (By Advocate : Shri M. M. Sudan) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Vinay Kumar, the Applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 and has prayed for the following reliefs:-
(i) to allow O.A. with costs on Respondents.
to quash the adverse report of 2004 with a direction to the Respondents for its upgradation to outstanding after expunging the adverse remarks therefrom.
to direct the Respondents to consider the representation of the Applicant for the upgradation of overall Grade to Outstanding within a month.
to Direct the Respondents to hold a review DPC for consideration of the case of the Applicant for promotion from Scientist D to Scientist E retrospectively from the date his juniors (other colleague of the same batch but figuring below in the merit lists promoted in 2003 for the promotion to Scientists D) have been promoted and to give him all consequential benefits including arrears of the pay and allowances and service benefits admissible to him.
to direct the Respondents to pay interest on the delayed payment of pay and allowances arising out of the promotion so made.
any other relief or direction which this Honble Tribunal may deem fit, just and proper in the facts and circumstances of the case and to meet ends of justice.
2. The facts of the case in nutshell would reveal that the Applicant joined National Informatics Centre (NIC for short) as Scientific Officer/Programmer in Dhanbad, Bihar (now in Jharkhand) in the year 1992 and after completion of mandatory residency period of 3 years, he appeared before the Selection Committee in December 1995 under Flexible Complementing Scheme (FCS) and was promoted on 01.01.1996. In the same manner, his performance was reviewed in December 1998 by the Committee and he was promoted as Scientist C on 01.01.1999. It is the case of the Applicant that the mandatory residency period for promotion from Scientist C to Scientist D is 4 years which can be relaxed for one year on any single occasion for exceptionally meritorious candidates and he having the outstanding performance from year 1997 to 2001, should be given the aforesaid relaxation. But the same was denied to him. He was called for interview in the year 2003 after five years and his name was recommended by the Committee and he was promoted as Scientist D w.e.f. 29.12.2003. The mandatory residency period for promotion from Scientist D to Scientist E is 4 years which he completed on 28.12.2007, but he was not called for interview before Selection Committee in December 2007. It is the case of the Applicant that his grading was downgraded to Average for the year 2004, and the Respondents did not communicate him the Average entry since they considered it as not an adverse grading. Due to the down gradation he secured below the prescribed percentage of marks for eligibility and as a consequence thereof, the Applicant stood eliminated after screening and was not called for interview before the Selection Committee. It is, therefore, averred that Average has to be treated as an adverse entry and communicated to the Applicant before acting upon it. Aggrieved by the action of the Respondents, the Applicant has approached this Tribunal with the aforesaid prayers.
3. Notice was issued to the Respondents including Private Respondent on 29.5.2009. The written reply was filed on 20.10.2009 by all Respondents including the Private Respondent. The Applicant filed his rejoinder on 12.11.2009 and furnished additional documents including a copy of his representation and copy of judgments. On our direction, the Counsel for the Respondents placed for our perusal, the Applicants Confidential Reports titled CR-3362.
4. Shri D. R. Gupta, the learned Counsel for the Applicant, highlighting the outstanding professional and scientific service rendered by the Applicant, contended that the Applicant for the years 2001,2002, 2003 and 2005 has got Outstanding ratings and for the year 2006 and 2007 he was given Very Good grading but he has got only one down graded ACR i.e. B(Average) for the year 2004. The ACR pertaining to the year 2004 was not communicated to the Applicant but having been looked into by the Screening Committee, it has adversely affected the Applicant by eliminating him from consideration for promotion from Scientist D to E on completion of four years of residency period. He has relied on the judgment of the Honble Supreme Court in Dev Dutt Versus Union of India and Others [2008 (8) SCC 725] to highlight that whether an entry is adverse or not, depends upon its actual impact on employees career and not on its terminology-so even a Good entry can be adverse in the context of eligibility for promotion. In this situation the Good entry is in fact an adverse entry because it eliminates the candidate from being considered for promotion. Nomenclature is not relevant. It is the effect, which the entry is having, which determines, whether it is an adverse entry or not. Non communication of Good entry is arbitrary and hence illegal. Shri Gupta further submits that the aforesaid ruling of the Apex Court was followed by the Central Administrative Tribunal, Principal Bench in the matter of S. Puttaswamy versus Union of India & Ors. in OA No.1352 of 2007 decided on 30.07.2008 and the Applicant is entitled to the same relief as has been granted in Shri S. Puttaswamys case (supra). Another aspect argued by Shri Gupta relates to the issue that the Reviewing Officer reviewed Applicants work for a job not assigned to him. On this count, he has attributed bias and malafide against his Reviewing Officer (Respondent-3), who made such an assessment deliberately to spoil his career. Shri Gupta, therefore, contended that while the Reporting Officer graded him Good, in the review the Average grading given in the ACR for 2004 by Respondent-3 was based on wrong premises, which he termed as malafide and not sustainable in the eyes of law. Shri Gupta drew our attention to the outstanding research work and publication of his professional articles in the International Journals and specifically he mentioned about the excellent work of the Applicant under supervision of Respondent-3 in the field of GISNIC and their technical paper of 2004 published in the International Journal of Information Technology and Management Vol.5 No.1.2006 (Pages 85-94). This he cited in support of the Applicant to wonder why the co-author (Respondent-3) became biased against the Applicant and why she gave adverse entry in his ACR for 2004. Shri Gupta, therefore, argued to allow the OA.
5. On the other hand, Shri M. M. Sudan, the learned Counsel for the Respondents, vehemently opposed the contentions raised by the learned Counsel for the Applicant. Shri Sudan submits that the Applicant has received his ACR for the year 2004 and the comments furnished by him have been replied by the Respondents. The Reviewing Officer while reviewing his ACR for the particular year 2004 has agreed with the remarks of the Reporting Officer and graded him B Average and in support thereof reasons have been given in the ACR. The Reviewing Officer has not agreed with the Self Appraisal. The Applicant has not come with clean hands as he has not annexed the complete copy of the Annual Confidential Reports as supplied to him under Right to Information Act, 2005. Further, the Applicant has obtained the views of the Reviewing Officer through Right to Information Act, 2005 which has been questioned by him in the OA. He contended that the judgment relied on by the Counsel for the Applicant being of 2008 and ACR of the Applicant in question being for the year 2004, the same could not be communicated as per extant guidelines of DOPT. On behalf of the Respondent-3 Shri Sudan refuted the allegations of malafide and bias leveled by the Applicant.
6. It is admitted fact that NIC is a Scientific and Technical organization and the promotion of Scientific officers is governed and regulated by the Flexible Complementing Scheme (FCS), which is merit oriented and assessment of the officers for the said purpose has to pass through two stages viz., (1) Screening, by Screening Committee on the basis of performance as reflected in the Officers Annual Confidential Reports and (2) by interview conducted by a Selection Committee. It is apt to refer to the DOPT OM No.2/41/97/PIC dt. 9.11.1998 which lays down the FCS as applicable in the 5th Central Pay Commission. As per the said OM, the officers ACRs are assessed in 10 point scale assigning 10 for Outstanding (A+), 6 for Good (B+), 4 for Average (B) and 0 for Poor(C) and the officers securing 90 percent of marks are given the 1st opportunity for the interview conducted by the Selection Committee. Further clarifications were issued by DOPT in OM dated 15.11.2000 (Page 61) and 29.11.2002 (Page 62). One of the clarifications issued in the OM dated 29.11.2002 stipulates the reduction of criteria of marks at the time of 1st opportunity from 90% to 85%. Annexure-II to the OM dated 9.11.1998 provides the criteria for considering promotion under FCS which is extracted below :-
(a) All officers will be first screened on the basis of gradings in the Annual Confidential Reports (ACRs) for consideration for promotion; the ACRs should be assessed on a 10 point scale giving 10 marks for outstanding, 8 marks for very good, 6 marks for good, 4 marks for average and 0 for poor and only those officers who satisfy the minimum residency period linked to their performance as indicated in the table below be screened in.
Number of years in the grade 3 4 5 6 7 8 Minimum percentage for eligibility Scientist B to 90% 80% 70% 65% 60% .
Scientist C Scientist C to .. 90% 80% 75% 70% 60% Scientist D Scientist D to 90% 80% 75% 70% 60% Scientist E Scientist E to . .. 90% 80% 75% 70% Scientist F Scientist F to . . 90% 80% 75% 70% Scientist G
Exceptionally meritorious candidates with all outstanding gradings may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion. Such a relaxation will be limited to a maximum of two occasions in their entire career.
(b) As the procedure adopted for assessment of CRs in various Scientific Departments differ at present, it has been decided that an external member, from Departments of Atomic Energy, Space or DRDO who have developed over the years a fine turned system of screening in meritorious Scientists may be co-opted in the selection process, till such time a system gets established in other Scientific Departments. The position will, however, be reviewed after 5 years from the date of issue of this Office Memorandum.
(c) All Officers who are screened-in will be called for an interview. The performance in the interview will also be graded similarly on a 10 point scale and the eligibility for promotion will be based on the same norms as in the above Table.
(d) Field experience in research and development and/or experience in implementation of such scientific projects is compulsory for promotion of scientists recruited to the posts in the Secretariat of the Scientific Ministries/Departments to higher grades under FCS. Field experience of at least 2 years and 5 years respectively will be essential for promotion to Scientist F and Scientist G grades respectively. However, during the transitional period, Committee may relax this requirement in case of meritorious candidates.
7. The Applicants grievances is basically on the assessment of his performance for the period from January to December 2004 where he has been assigned the grading of B+ (Good) by the Reporting Officer and reduced to B (Average) by the Reviewing Officer. Respondents have submitted that as per instructions of DOP&T in vogue in the year 2004, there has been no guidelines to communicate the below benchmark ACR. Consequent to the judgment of Honble Supreme Court in Dev Dutt case (supra) and subsequent guidelines issued vide DOP&T OM No.21011/1/205-Estt.(A) (Pt.II) dated 14.5.2009 in the interest of the fairness and transparency in public administration, the below benchmark ACRs are to be communicated to the officers reported upon. It is stated that the Applicant was verbally asked by the Respondents to improve his performance. But it is admitted that the below benchmark granding in the 2004 ACR and down grading in the same ACR was not communicated to the Applicant. It is also admitted by the Respondents that since the Applicant could not secure the minimum percentage of marks, he was not considered by the duly constituted Screening Committee to call for the interview.
8. We have perused the Applicants ACR Dossier. Gradings are captured in the following compilation of his performance expressed in terms of overall grade in the ACRs for the year 1997 to 2007 by the Reporting and Reviewing Officers :-
Sl.No. Year Assessment by Reporting Officer Assessment by Reviewing Officer
1. 1997 A+ No Review
2. 1998 A+ No Review
3. 1999 A+ A+
4. 2000 A+ A+
5. 2001 A+ A+
6. 2002 A+ A+
7. 2003 A+ A+
8. 2004 B+ B
9. 2005 A+ A+
10. 2006 A A
11. 2007 A A
9. It is noticed that Respondent-3 against whom the Applicant has attributed bias and malafide, has been Reporting Officer for the 1997 and 1998 years and has assigned A+ grade to the Aplicant. She has been the Reviewing Officer whereas Shri Vishnu Chandra, Technical Director, has been the Reporting Officer for the years 1999, 2000, 2001, 2002, 2003 and 2004 and both have assigned A+ grade to him for 5 years (1999 to 2003) but for the year 2004, Reporting Officer gave him B+ grade and Reviewing Officer (Respondent-3) B grade. The core issue is, therefore, the below benchmark grading in the ACR for 2004 and the downgrading of the said ACR. Hence, we closely looked into the ACR for the year 2004. Reporting Officer has assessed the Applicants performance on various attributes in 2 parts of the ACR (Part A and B). Part-A deals with Assessment of Personality with 15 sub heads including over all grade in sub head 15; Part-B General Performance with 4 sub heads. In case of Part-A he has assigned A+ in one sub-head (integrity), A in 3 sub heads, B+ in 6 sub heads, B in 2 sub heads and C in 2 sub heads with over all grading of B+. In Part-B, he has ticked against the Column Needs to be guided for improving performance, with no comments in the sub head-3, the following comments have been given by him in the sub-heads 1 and 2:-
B. General Performance
1. Please comment on Self Appraisal Report submitted by the officer in Part II and state whether you agree with the details therein. In particular, please indicate whether you agree with the bottlenecks and constraints mentioned by the officer. If so, what steps would you like to suggest to reduce/eliminate the same in order to improve overall productivity of the officer.
(a) GISNIC development was major activity assigned to the officer. This also includes development of GIS solution upto district level. No progress is shown.
(b) Regarding other activities related to PARAM, video work etc. are of minor nature.
2. Any other general remarks/special attributes of the officer about which you may like to make a special mention.
Officer is to improve his productivity for office activities. The Reviewing Officer [Dr. (Mrs.) Vandana Sharma, Senior Technical Director], the Respondent-3 herein, reviewed the said ACR in 2 sub heads of Part-IV. She assigned B grade and has given the following comments:-
1. Do you agree with the assessment given by the Reporting Officer? Please indicate whether you would like to modify or add anything to this report:
I agree with remarks of reporting officer.
I do not agree with statement at (A) on Page 1 of self appraisal. Two officers were attached for GISNIC Div. work. The Officer has not devoted time for office work as assigned to him. Overall grade (B).
2. What action would you like to take on the recommendation of the Reporting Officer in Column 4 of Part III(B).
Grievances of the officer were examined by DDG (Admin) and the officer was verbally asked to improve performance.
10. The Applicant, by using the instruments of Right to Information Act 2005, has received copy of the ACRs. The Applicant submits that as per the job allocation given to him (he has enclosed the statement executed by RS & GIS Division), he was not allocated the job for which he has been given B grading by the Reviewing Officer. It was argued by the counsel for the Applicant that major work including installation of PARAM PADMA (super computer) PARAM 9000 US being major works executed by the Applicant but those were termed by the Review Officer as works of Minor Nature. This, he attributes, as malafide and bias on the part of the Respondent-3 as Reviewing Officer. Our analysis of the Applicants ACR over last 11 years makes us to wonder as to why the Applicant got B-Average grading in 2004 from Respondent-3 who gave him A+-Outstanding grading as Reporting Officer for 2 years and same grading of A+-Outstanding grade for 5 years as Reviewing Officers. This, in our opinion, can be best analysed for a decisive conclusion by the Official Respondents only after getting the Applicants detailed representation on the ACR for 2004.
11. We now advert to legal position in the matters of below benchmark and downgrading of ACRs. It is now well settled principle in the service jurisprudence that any grading in the Annual Confidential Report of an employee of the Government, (a) which is below the benchmark prescribed for promotion to a higher grade in the employees service and (b) in case the Reviewing Officer has down graded the grading of the Reporting Officer, such ACR would be considered to be adverse remark. In this context, the Honble Apex Court in U. P. Jal Nigam Versus Prabhat Chandra Jain reported in JT 1996 (1) SC 641 (para 3) laid the ratio that any grading which has adverse civil consequences for an employee should be considered as adverse remark/grading. If the grading given to an officer is Good and is not considered Fit for promotion on the basis of such grading that being below the prescribed benchmark should be considered as adverse grading. The Honble Supreme Court in U. P. Jal Nigam case (supra) held as follows :-
3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. (emphasis added)
12. Though the above decision of the Apex Court remained confined to the employees of the U.P. Jal Nigam, the Honble Supreme Court in Dev Dutt vs. Union of India and Others [2008 (8) SCC 725] has taken up identical issues and in an elaborate judgment decided that irrespective of the grading the employees should be given the ACRs in order to represent if they feel like against any of the entries to ensure fairness and transparency in administration. The same view was upheld by the Honble Supreme Court in the case of Abhijit Ghosh Dastidar versus Union of India & Others decided on 22.10.2008 (Civil Appeal No.6227/2008). Further, a Larger Bench of this Tribunal considered the issue of downgrading of the grades by the Reviewing Officer in A. K. Aneja versus Union of India & Ors. decided on 7.05.2008 in OA NO.24/2007. In the said case, the Tribunal held that although the Reporting Officer had recorded Very Good grading, yet the officer reviewing the ACR had downgraded it to Good, which was below the bench mark of Very Good prescribed for promotion. The Tribunal took a view that such grading in the ACR was decidedly an adverse remark/grading and should be communicated to the Applicant, in that case, his representation be obtained and considered. The present case in this OA is akin to that of A. K. Aneja case (supra) wherein the Reporting Officer has given him Good (B+) whereas the officer reviewing the Applicants performance has down graded to the level of Average with a grading (B).
13. The learned Counsel for the Applicant relied on the judgment of this Tribunal in S. Puttaswamy case (supra) which was decided on 30.07.2008. This Tribunal has also considered similar issues recently in Shri Krishna Mohan Dixit Case Versus Union of India and Others in OA No.586/2009 decided on 25.8.2009. We find that the issues involved in the current OA are similar to these judgments. In case of Shri Dixit (supra) the non-communicated below benchmark and downgraded ACRs were directed to be ignored and to consider the ACRs of preceding years. In Shri Krishna Mohan Dixit case (supra), reliance was placed on the orders passed by this Tribunal in Shri Sanjay Kumar Vs. Union of India and others, decided on 5.08.2009, in which, after considering the judicial precedents of Abhijit Ghosh Dastidar (supra), this Tribunal took the view that the ACR for the year 2002-03, in which a grading of `Good was recorded in respect of the applicant therein, should not be considered. In Shri Sanjay Kumar case, cited supra, the Tribunal had also considered the OM dated 12.10.1990 of the DOP&T which prescribes that the DPC should consider ACRs for equal number of years in respect of all officers considered for promotion. In Shri Krishna Mohan Dixit case (supra), the Tribunal had directed that the DPC should go back to preceding years and consider the ACR of the Applicant, which does not contain any un-communicated below benchmark and downgraded ACRs.
14. This case is slightly different from the OAs referred to above. The Applicant has already received copy of his Annual Confidential Reports by availing the opportunity under Right to Information Act, 2005. He has also submitted his representation on which the Official Respondents are yet to take decision. Though those ACRs were not communicated by the Official Respondents to the Applicant seeking his representations, we find, a part of the process has been completed. Hence it is not necessary at present for the Respondents to communicate further copies of the Annual Confidential Reports for the year 2004. We direct if the Applicant may submit a detailed representation on his ACR for the year 2004, the Respondent-2 within a period of 15 days would consider his representations very dispassionately and pass order on the same, more specifically, the gradings assigned by the Reporting and Reviewing Officers and if the Competent Authority finds Applicants representation as convincing he should not hesitate to upgrade the gradings. After issue of the appropriate orders on the representation of the Applicant, the Respondents should convene a Review Screening Committee to consider whether the Applicant should be called for interview to be conducted by a Review Selection Committee. If the Applicant succeeds in these two stages of evaluation for promotion, he would be entitled to get his promotion to the grade of Scientist E from the date when similarly placed officers were considered and promoted. It goes without saying that in the event of his promotion, he will be entitled to the consequential benefits like seniority, pay and allowances etc. The whole exercise in this matter shall be completed within a period of 3 months from the date of receipt of a copy of this order.
15. In the result, the Original Application having sufficient merits is allowed in terms of our directions in Paragraph 14 within. There is no order as to cost.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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