Central Administrative Tribunal - Jabalpur
S C Garg vs M/O Communications on 21 January, 2025
1 O.A.No.200/558/2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/558/2013
Jabalpur, this Tuesday, the 21st day of January, 2025
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SMT. MALLIKA ARYA, ADMINISTRATIVE MEMBER
S.C. Garg son of Shri B.L. Garg,
aged about 63 years,
retired Chief General Manager,
B.S.N.L., Telecom Factory, Jabalpur, M.P.
presently residing at 1104-B,
Eden Garden, Deonar,
Mumbai (Maharashtra) Pin Code 400 088. -Applicant
(By Advocate -Shri Saurabh Tiwari)
Versus
1. Union of India through
Ministry of Communication & Information Technology,
represented by Secretary,
Department of Telecommunication,
Sanchar Bhawan, 20 Asoka Road,
New Delhi-110 001.
2. Bharat Sanchar Nigam Limited,
through Chairman & Managing Director,
Bharat Sanchar Nigam Limited,
Corporate Office, Bharat Sanchar Bhawan,
Janpath, New Delhi-110001 - Respondents
(By Advocate -Shri Gautam Prasad)
(Date of reserving the order: 12.12.2024)
Digitally signed
by KARUNA
GUPTA
Date: 2025.01.22
17:38:16+05'30' Page 1 of 12
2 O.A.No.200/558/2013
ORDER
By Justice Akhil Kumar Srivastava, JM;
The applicant in this Original Application has prayed for the following reliefs:
8(1) In view of the explanations given in the foregoing paras above, it is requested that this Hon'ble Tribunal may kindly please to quash the BSNL Order No.500- 120/2012/APAR/Pers-1 dated 29.10.2012.
8(2) That this Hon'ble Tribunal may further be please to command the Respondents to convene Review DPC by excluding the ACR 2005-06, as the below benchmark grading was not communicated before holding the DPC/CPC for promotion and to provide the upgradation in the Non Functional SAG grade to applicant forthwith. If required, the ACR prior to 2005- 06 may be considered for considering ACR for five years."
2. The facts of the case are that the applicant was promoted to the post of Chief General Manager at Telecom Factory Jabalpur from where he got superannuated on 31.07.2010. Applicant was the senior most officer in the Telecom Factory Cadre and was functioning in the grade of General Manager (Senior Administrative Grade) since 07.04.2000, the applicant was not selected for promotion and his juniors were promoted vide BSNL order dated 12.02.2010 (Annexure A/1). When applicant enquired about the said fact, Digitally signed by KARUNA he was served with a letter dated 23.06.2010 (Annexure A/2) GUPTA Date: 2025.01.22 17:38:16+05'30' Page 2 of 12 3 O.A.No.200/558/2013 whereby ACR for the year 2005-06 was enclosed containing below benchmark grading for the year 2005-06 and he was intimated to represent against overall grading and general comments in the ACR. Applicant submitted his representation dated 03.07.2010 followed by reminders on 26.07.2011, 06.10.2011 and 30.12.2011 (Annexure A/4 to A/8). The respondents vide order dated 29.10.2012 (Annexure A/9) rejected the representation of the applicant. Hence this Original Application.
3. Respondents in their reply have submitted that the applicant submitted his ACR for the period 01.04.2005 to 31.03.2006 after signing it on 24.06.2006. Shri R.L. Dube, the then Director (Planning)/retired on 30.04.2007 who was reporting officer and he has graded the officer as "Good". This ACR was reviewed by Shri A.K. Sinha the then CMD (BSNL) / retired on 31.07.2007, he has agreed with the assessment of the reporting officer and graded him as "Good. Applicant submitted his representation dated 03.07.2010 and subsequent reminders dated 21.04.2011, 06.10.2011 and 30.12.2011 for upgrading the remarks from "Good" to "Very Good" and over all grading from "Good" to Digitally signed "Very Good". As per guidelines of DPE applicable for "Top by KARUNA GUPTA Date: 2025.01.22 17:38:16+05'30' Page 3 of 12 4 O.A.No.200/558/2013 Management Incumbents" i.e. CMD, Functional Directors, EDs and other officers of E- 8 and E-9 levels. The committee of three senior officers comprising Director [HR] Director [CM] Director [Finance] was appointed by the Accepting authority i.e CMD BSNL, to advise him on the representation vide letter dated 05.09.2012 (Annexure R-2-1). The said representation of the applicant was duly considered and competent authority issued order dated 29.10.2012 (Annexure A/9) stating that remarks & grading recorded by Reporting and Reviewing Officers in the ACR of the year 2005-06 of Shri S.C. Garg (Staff No. 74008) shall be treated as final for all intent and purposes.
4. Heard the learned counsel for both the parties and perused the reply of the respondents and documents annexed therewith. However applicant has not filed any rejoinder to the reply filed by the respondents to convert the averments made therein.
5. In the case of Dev Dutt Vs. Union of India - [(2008) 8 SCC 725], it was observed that all entries in the ACR of a public servant must be communicated to him within the reasonable period so that he can make a representation for Digitally signed his upgradation despite there be no rule or government order by KARUNA GUPTA Date: 2025.01.22 17:38:16+05'30' Page 4 of 12 5 O.A.No.200/558/2013 to that effect. Pursuant to the judgment in Dev Dutta (supra), OMs dated 14.05.2009 and 13.04.2010 were issued and the same are extracted as under:
"No. 2101 1/1/2005-Estt (A) (Pt-II) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi, 14th May, 2009 OFFICE MEMORANDUM Subject:- Maintenance and preparation of Annual Performance Appraisal Reports-communication of all entries for fairness and transparency in public administration.
The undersigned is directed to invite the attention of the Ministries/Departments to the existing provisions in regard to preparation and maintenance of Annual Confidential Reports which inter-alia provide that only adverse remarks should be communicated to the 'officer reported upon for representation, if any. The Supreme Court has held in their judgment dated 12.5.2008 in the case of Dev Dutt vs. Union of India (Civil Appeal No. 7631 of 2002)' that the object of writing the confidential report and making entries is to give an opportunity to the public servant to improve the performance. The 2 nd Administrative Reforms Commission in their 10th Report has also recommended that the performance appraisal system for all services be made more consultative and transparent on the lines of the PAR of the All India Services.
2. Keeping in view the above position, the matter regarding communication of entries in the ACRs in the case of civil services under the, Government of India has been further reviewed and the undersigned is directed to convey the following decisions of the Government:
(i) The existing nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR).
(ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Digitally signed Report is complete with the remarks of the Reviewing Officer and by KARUNA GUPTA Date: 2025.01.22 17:38:16+05'30' Page 5 of 12 6 O.A.No.200/558/2013 the Accepting Authority wherever such system is in vogue. Where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment.
(iii) The section entrusted with the maintenance of APARs after its receipt shall disclose the same to the officer reported upon.
(iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of disclosure, the APAR will be treated as final.
(v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 1st April, 2009.
(vi) The competent authority for considering adverse remarks under the existing instructions may consider the representation, if necessary, in consultation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation.
(vii) The competent authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the competent authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section.
3. All Ministries/Departments are requested to bring to the notice of all the offices under them for strict implementation of the above instructions.
(C.A. Subramanian)
Digitally signed
by KARUNA Director"
GUPTA
Date: 2025.01.22
17:38:16+05'30' Page 6 of 12
7 O.A.No.200/558/2013
6. On perusal of OM dated 14.05.2009, it is noted that the new system of communicating the entries in Annual Performance Assessment Report (APAR) provides that the same should be communicated within a period of fifteen days from the date of receipt of the entries in the APAR. The new system is applicable prospectively with effect from the reporting period 2008-09, which is initiated after 01.04.2009.
"P-3 No. 21011/1/2010-Estt.A Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training North Block, New Delhi Dated the 13th April, 2010 OFFICE MEMORANDUM Subject: Below Benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading.
The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008- 09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication, it may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is Digitally signed no need to send below benchmark ACRs of other years.by KARUNA GUPTA Date: 2025.01.22 17:38:16+05'30' Page 7 of 12 8 O.A.No.200/558/2013
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any while considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-à-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefore may also be given in Inc order of the competent authority.
(C.A. Subramanian) Director"
7. As per OM dated 13.04.2010, it has been stated that the question of treating the grading in the ACR which is below the benchmark for next promotion has been considered by the Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would Digitally signed by KARUNA GUPTA Date: 2025.01.22 17:38:16+05'30' Page 8 of 12 9 O.A.No.200/558/2013 be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation if any, within fifteen days of such communication and only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
8. In the instant case, the below benchmark ACR reporting the period from 2005-06 was communicated to the respondent vide communication dated 23.06.2010 in respect of which representation was made by the respondent on 03.07.2010. The same was rejected as per the communication dated 29.10.2012 wherein a committee of three senior officers was constituted by the competent authority and the comments of reporting and reviewing officers on the said representation of the applicant could not be obtained as both the officers have retired from service. The committee has decided the representation of the applicant as under:-
"The reviewing officer, while reviewing the ACR, expressed his acceptance upon the assessment given by reporting officer.Digitally signed by KARUNA GUPTA Date: 2025.01.22 17:38:16+05'30' Page 9 of 12 10 O.A.No.200/558/2013
Supply of TF products, stores depends upon the demand generated by field units which may vary from year to year, hence cannot be claimed as an achievement of the officer reported upon.
Dispatch of GSM/WLL tower during a year more than the previous year can not be judged as a significant achievement. Had there been fewer requirements of towards from field units, the supply would have also been less.
Repair of PCBs depends upon the number of defective PCBs received from filed units as such can not be measured as a notable achievement.
Contention of the officer with regard to his contribution in respect of increase in income resulted on account of scrapping is not appropriate. It is gathered from Telecom Factories that if production is increased to meet the requirement of field units then scrap accumulated is also more. This will naturally lead to more disposal of store.
The officer has claimed development of two new products namely double jack line jack unit (DJLJU) & Roof Top Towers as a remarkable achievement. Development of Double jack line jack unit, by merely adding a hardware component, cannot be taken as a vital achievement. As per information collected from GM TFs, Roof Top Tower developed was extremely bulky in size and the production of such towers was never taken up.
After having gone through the case in totality and observations/recommendation of the committee, the Competent Authority is of considered view that the concerned Reporting and Reviewing officers have done reporting/reviewing after carefully assessing the officers performance objectively, dispassionately and fairly. Hence the remarks recorded against individual attributes and overall grading given as 'Good' by Reporting and Reviewing officer in ACR of the year 2005-06 are fully justified and hence up gradation of the remarks/grading given in the ACR does not merit any consideration. The Competent Authority has come to the conclusion that the remarks & grading recorded by the Reporting and Reviewing officers in the ACR of the year 2005-06 of Shri S.C.Garg (Staff no. 74008) shall be treated as final for all intent and purposes.
Accordingly, the representation of Shri S.C.Garg (Staff no. 74008), the then CGM (Telecom Factory) Jabalpur now retired, is Digitally signed by KARUNA hereby rejected."GUPTA Date: 2025.01.22 17:38:16+05'30' Page 10 of 12 11 O.A.No.200/558/2013
9. The case of the applicant is that he was graded as "Good" in the year 2005-06 and rejection of his representation against the below benchmark was arbitrary and unjustified in as much as no shortcomings in his work during the period in question were ever brought to his notice. Furthermore, ACR for the year 2005-06 was not communicated to the applicant prior to 23.06.2010. Admittedly, remarks were not communicated to the applicant within the time limits prescribed for such communication under the prevailing rules governing ACRs. There is also no evidence of the attention of the officer being drawn during the year itself to his falling standards along with necessary caution/advice so as to give him a chance to improve. Moreover, in the pleadings it is mentioned that the reporting officer i.e. Director (Plg & NS) has issued appreciation letter vide DO letter dated 05.04.2006.
10. Therefore, in view of the above and in the facts and circumstances of the case and considering the fact that though the applicant was graded as "Very Good" in the ACRs for other years and was graded only "Good" in the ACR for the year 2005-2006 by the reporting and reviewing Digitally signed by KARUNA GUPTA officer, despite the fact that specifically the applicant was Date: 2025.01.22 17:38:16+05'30' Page 11 of 12 12 O.A.No.200/558/2013 given the opportunity against the ACR for the year 2005-06 belatedly. However, no valid reasons are given for rejecting the representation, we are of the opinion that in view of the aforesaid facts and circumstances, this Original Application is hereby allowed, impugned order dated 29.10.2012 is quashed and we direct the respondents to convene a review DPC to consider the case of the applicant for promotion by excluding the ACR 2005-06 as the below benchmark grading was not communicated before holding the DPC/CPC, at par with his immediate juniors with all consequential benefits flowing therefrom. However, there will be no order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
kg/-
Digitally signed
by KARUNA
GUPTA
Date: 2025.01.22
17:38:16+05'30' Page 12 of 12