Central Administrative Tribunal - Mumbai
Vikas K Telang vs Bhabha Atomic Research Centre on 19 December, 2024
1 OA No. 440/2020
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.440/2020
MA No.5/2021
MA No.137/2021
MA No.887/2022
MA No.189/2023
Order reserved on: 02.08.2024
Order pronounced on: 19.12.2024
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Vikas Krishnarao Telang
Age 51 years,
Scientific Officer (G), BARC Mumbai,
CH 3-62, Kendriya Vihar, Sector 11,
Khargar, Navi Mumbai-410 210.
....Applicant
(Applicant in person)
Versus
1. Union of India
Through the Secretary,
Department of Atomic Energy,
Anushakti Bhavan, CSM Marg,
Mumbai 400 001.
2. The Director,
Bhabha Atomic Research Centre,
Trombay, Mumbai 400 085.
3. The Controller,
Bhabha Atomic Research Centre,
Trombay, Mumbai 400 085.
2 OA No. 440/2020
4. Shri Sekhar Basu (Hon. Dr.)
Ex Secretary DAE, Mumbai 400 001.
5. Shri K.N.Vyas,
Secretary DAE,
Anushakti Bhavan, CSM Marg,
Mumbai 400 001.
... Respondents
(By Advocate: Mr. R.R.Shetty, senior standing counsel
with Ms. Divya Shetty and
Mr.N.K.Rajpurohit)
ORDER
Per: Justice M.G.Sewlikar, Member (J)
Challenge in this application is to the order dated 21st May, 2018, 22nd May, 2018, 1st June, 2018 and report of the Committee dated 4th July, 2016 with all consequential benefits.
2. Facts in nutshell are that the applicant is an Engineering graduate, i.e. B.E.(Electrical) and was appointed as Scientific Officer-C in Bhabha Atomic Research Centre (BARC) on 1st August, 1992.
3. Applicant contends that Merit Promotion Scheme (MPS) of BARC, Department of Atomic Energy (DAE) is 3 OA No. 440/2020 based on individual merit and not linked to vacancies in higher grade. When an officer is promoted to higher grade, the post held by him/her is itself upgraded and no resultant vacancy arises in feeder grade. The promotional channel from Scientific Officer (SO) -C is SO-D, SO-E, SO- F, SO-G, SO-H, Outstanding Scientist (Higher Administrative Grade) and Distinguished Scientist (Higher Administrative Grade+). As per norms for Engineers recruited through BARC Training School, minimum residency period from SO-C to SO-D is 2 years, from SO-D to SO-E is 4 years, from SO-E to SO-F is 5 years, from SO- F to SO-G is 5 years, from SO-G to SO-H is 5 years and from SO-G to Outstanding Scientist is 6 years.
4. The applicant contends that he was promoted as SO- D on 1st August, 1994 in minimum residency period of 2 years. He was thereafter promoted from SO-D to SO-E on 1st August, 1998 in minimum residency period of 4 years. He was promoted from SO-E to SO-F on 1st August, 2004 instead of 1st August, 2003. He was promoted from SO-F to SO-G on 1st July, 2012 instead of 1st August, 2008 with a delay of 4 years.
4 OA No. 440/2020
5. The applicant avers that he had filed OA No.649/2011. This OA was allowed by this Tribunal vide order dated 30th October, 2015 with following directions:
"(i) the Applicant's prayer for promotion to the post of Scientific Officer-F from 1.8.2003 after ignoring the gradings in the ACRS in the year 1998-99 and 2000-01 and pass appropriate orders within eight weeks from the date of receipt of this order
(ii) on the prayer of the Applicant for promotion to Scientific Officer-G w.e.f. 01.08.2008 the Respondents are directed to communicate a copy of ACRs/APARs to the Applicant for all the relevant years preceding 2009 and on receipt of his response, reassess and re-evaluate his ACRs/APARs as per rules. The Applicant is also directed to submit to the respondents a detailed representation regarding his non-promotion to the post of Scientific Officer-G in the year 2009 covering the grounds taken in the O.A. Respondents were directed to constitute a committee to consider his representation along with the allegations and counter allegations contained in the O.A. and give its recommendations. After this exercise is completed the respondents were directed to put up the case of the Applicant before the DPC for consideration of his case for promotion to the post of SO-G wef 01.03.2008 as per the extent rules and procedures taking into account the decision of ACRs/APARs and recommendations of the above mentioned committee. The whole exercise should be completed within a period of 16 weeks from the date of receipt of a copy of this order.
(iii) The prayer relating to PRIS-I will be governed by the directions contained in para (ii) above. Copy of order dt 30.10.2015 is annexed hereto and marked as Annexure A-6."
6. He has further alleged that while allowing OA No.649/2011, this Tribunal observed as under:
"From the records produced before us it is found that in BARC Scientists are given promotion on time if they have got A1 grading for all years which are taken into account 5 OA No. 440/2020 by DPC for promotion. It can therefore be safely assumed that A1 is the Bench-Marck grading adopted in BARC for promotion.".
7. With regard to non-communication of ACR/APAR, this Tribunal observed that the conclusion is inescapable that the respondents have committed a blunder by non- communicating below bench mark grading to applicant for the years 2004-05 to 2008-09.
8. Pursuant to the order passed by this Tribunal in OA No.649/2011, applicant submitted the representation dated 9th February, 2016 to respondents (Annexure A-7). After the applicant made the representation, the respondents challenged the order of this Tribunal in OA No.649/2011 by preferring Writ Petition No.2609/2016 on 13th March, 2016. This Writ Petition came to be dismissed on 27th June, 2017.
9. The applicant had filed the Contempt Petition No.2/2017 for non-compliance of order of this Tribunal. Applicant was served with a copy of the report of the Committee dated 4th July, 2016 on 27th January, 2017 during the pendency of contempt petition. 6 OA No. 440/2020
10. During the pendency of the contempt petition, the respondents passed order dated 21st May, 2018 rejecting the case of the applicant for promotion to the post of SO-F w.e.f. 1st August, 2003 and held that the said promotion will remain as on 1st August, 2004. This report is at Annexure A-2. Respondents No.2 & 5 passed another order dated 22nd May, 2018 (Annexure A-3) rejecting the request of the applicant for upgrading the gradings in respect of the reporting years 2004-05 to 2008-09. With regard to promotion to the post of SO-G, the respondent No.3 & 1 have passed an order on 1st June, 2018 thereby rejecting the case of the applicant for promotion to the post of SO-G w.e.f. 1st August, 2008 and held that the said promotion will remain as on 1st July, 2012. This order is at Annexure A-4. The applicant contends that the contempt petition was closed with the observation that "in case the applicant is not satisfied with the nature of compliance or the details thereof he is at liberty choose alternate remedies as advised." Therefore, the applicant has filed this OA challenging the orders dated 4th July, 2016, 21st May, 2018, 22nd May, 2018 and 1st June, 2018.
7 OA No. 440/2020
11. The applicant contends that the Committee consisted of one Mr. Noor Ahmed. His pay scale in the cadre of Senior Dy. General Manager (Sr. DGM), Electronic Corporate of India Ltd. (ECIL) was Rs.36,600-62,000 which is lower than applicant's pay scale of Rs.37,400-67,000. Other members Mr. Vaidya and Mr. M.G.Kelkar were in the same pay scale as that of the applicant. Mr. Vaidya reported to convenor of Committee Mr. Y.S.Mayya, and therefore, Mr. Vaidya was not truly independent. The Committee instead of looking into allegations, has made comments on un-communicated ACRs/APARs of applicant from 1992-93 till 2014-15 which was not at all the duty cast upon by this Tribunal. The Committee has examined the ACRs of 1998-99 and 2000-01 though the Committee was not supposed to examine the said ACRs in view of the directions of this Tribunal to ignore these two ACRs for antedating promotion w.e.f. 1st August, 2003 and 1st July 2008, the applicant was asked to appear for the interview. The applicant contends that he was already interviewed for these two promotions, and therefore, there was no question of again appearing for the interview. The respondents 8 OA No. 440/2020 formed a committee to interview applicant for antedating promotion as SO-F w.e.f. 1st August, 2003 and as SO-G w.e.f. 1st August, 2008. The applicant contends that there is no provision for holding interview for antedating promotion.
12. The applicant further contended that as per directions of this Tribunal in OA No.649/2011 respondents were to furnish copy of ACRs/APARs for years 2004-05 to 2008-09 but they were not communicated to the applicant and they were communicated to him after 28 months, i.e. on 14th March, 2018 during the pendency of Contempt Petition No.02/2017. As per rules ACRs/APARs can only be evaluated by reporting, reviewing officers. Applicant's reviewing, reporting officer and accepting officer of 2004-05 to 2008-09 have retired as on 22nd May, 2018. Therefore, his assessment for this period is not possible. For these reasons, order dated 22nd May, 2018 (Annexure A-3) needs to be set aside.
13. The applicant contends that for the same reason, the order dated 1st June, 2018 needs to be set aside. The applicant contends that APARs for the period 2010-11, 9 OA No. 440/2020 2011-12, 2012-13 have not been fully communicated to the applicant. Respondent No.1 used to show to the applicant one page titled Format-I on which only grade awarded for concerned reporting year is mentioned. In case awarded grade was not acceptable, applicant was given single page Format-II, which has an entry "I am not in agreement with overall grading and relevant remarks in my APAR as communicated to me. I request Accepting authority to provide final assessment sheet for the purpose of making representation." Subsequently, one page Format-III was handed over on which numeric gradings against each attribute is written. Thus, complete ACRs/APARs, showing remarks by reporting and reviewing authorities were never communicated as is required by law. Identity of reporting and reviewing officers was not divulged. He further contends that officers who were not reporting/reviewing officers as per written orders evaluated applicant's APARs for the years 2010-11 to 2012-13. He contends that this Tribunal observed in the judgment in OA No.649/2011 that the applicant has demonstrated that the ACR was assessed by officers different from those to whom he was actually reporting.
10 OA No. 440/2020
14. He contends that higher qualification is not required for being promoted as Outstanding Scientist. Residency period from SO-H to Outstanding Scientist is 6 years. Thus, applicant became eligible for promotion to Outstanding Scientist from 1st July, 2019. For this promotion to Outstanding Scientist, ACRs/APARs for the period from 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 are relevant. These ACRs/APARs may not be considered as they were not communicated. The respondents did not communicate complete ACRs/APARs for the years 2018- 19, 2019-20 and 2020-21 to the applicant in accordance with law laid down by Hon'ble Supreme Court. They also did not communicate complete ACRs for the years 2013-14 to 2017-18 and were trying to obtain signatures of applicant on Format-I. Applicant has, therefore, filed this OA.
15. During the pendency of the OA, the applicant amended the prayer clause. Thus, the applicant has prayed for following reliefs:
"a. This Hon. Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same, quash and set aside the 11 OA No. 440/2020 impugned orders 21.05.2018, 22.05.20 18, 01.06.2018 and committee report dt 04.07.2016 with all consequential benefits.
b. After setting aside impugned order dt 21.5.2018, this Hon. Tribunal may further be pleased to direct the Respondents to consider the case of Applicant to the post of Scientific Officer-F wef 1.8.2003 holding that re- interview is not required with all consequential benefits along with arrears of pay and allowances etc. c. After setting aside impugned order dt 22.5.2018 and 1.6.2018, this Hon. Tribunal may further be pleased to direct the Respondents to ignore the ACRs/APARs from 2004-05 to 2008-09 and consider the case of the Applicant for Promotion to the post of Scientific Officer-G wef 1.7.2008 holding that re-interview is not required with all consequential benefits along with arrears of pay and allowances etc. d. This Hon. Tribunal may further be pleased to direct the Respondents to ignore the APARs 2010-11, 2011-12, 2012-13 and consider the case of the Applicant for promotion to the post of Scientific Officer-H wef 01.07.2013 with all consequential benefits such as arrears of pay and allowances etc. e. This Hon. Tribunal may further be pleased to direct the Respondents to ignore the APARs 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 and consider the case of Applicant for Promotion to the post of Outstanding Scientist wef 1.7.2019 with all consequential benefits such as arrears of pay and allowances etc. f. After setting aside impugned order dt 21.5.2018 and 1.6.2018, this Hon. Tribunal may further be pleased to direct the Respondents to grant PRIS-I M component commensurate with promotions of S0-F, SO-G, SO-H and Outstanding Scientist i.e. Maximum 4.
g. After setting aside impugned order dt 22.5.2018 and 1.6.2018. This Hon'ble Tribunal may further be pleased to direct the Respondents to grant PRIS-I N component for all the years from 2008-09 to 2017-18 i.e. Maximum 2.
h. For all above arrears of pay, allowances and PRIS-I be paid with a ROI of 18% p.a. 12 OA No. 440/2020 i. Exemplary Costs of the application be provided for.
j. Any other and further order as this Hon. Tribunal deems fit in the nature and circumstances of the case be passed.
k. Hon. Tribunal may further be pleased to direct the Respondents to ignore gradings for APARS 2018-19 2019-20, 2020-21.
l. Hon. Tribunal may further be pleased to direct the Respondents to consider case of Applicant for promotion to the post of Distinguished Scientist (DS) wef 1.7.2021 with all consequential benefits such as arrears of pay and allowances etc. m. Hon. Tribunal may further be pleased to direct the Respondents to grant PRIS-I M component commensurate with promotion of Distinguished Scientist i.e. maximum 4.
n. Hon. Tribunal may further be pleased to direct Respondents to grant PRIS-I N component for the years 2018-19, 2019-20, 2020-21 i.e. maximum 2.
0. For all above arrears of pay, allowances and PRIS-I be paid with ROI of 18% p.a."
16. Respondents have filed their reply. They contend that for promotion, the MPS scheme has been developed to recognize merit encompassing parameters like qualifications, quality of performance, creating new knowledge for indigenous development especially under technology denial regime, managerial and technological excellence and successful realization of scheduled critical activities in a mission mode. In terms of the policy evolved for promotions under MPS, Standing Selection 13 OA No. 440/2020 Committee/Senior Selection Committee is formulated to consider promotions of the Scientific Officers. The career progression of each officer depends on his merit and competence to move to the higher levels. In short, promotion is performance based and not vacancy based. For considering the suitability of a person for promotion to the next higher grade in addition to the ACR/APAR gradings and other details, especially contribution to departmental programme, the level of excellence displayed in carrying out a particular scientific/technical task, attributes towards guiding the scientific and technological programmes, leadership qualities, work output etc. are some of the parameters in deciding the merit of the candidate. For promotion to SO-G and above, the screening of candidates for the purpose of their consideration for promotion is done by the Trombay Council which consisted of Director, BARC as the Chairman of all groups of BARC as members. The Sub- committee of the Trombay Council goes through the confidential reports/APARs of all officers who are within the zone of consideration in consultation with Directors of Groups/Associate Directors concerned. The Sub- 14 OA No. 440/2020 committee prepares a list of officers to be interviewed for promotion on the basis of ACR/APAR gradings and other details and also taking into account aspects like scientific and technological programmes, leadership qualities, etc. The Sub-committee submits the report to the Trombay Council. Trombay Council again reviews the cases of all eligible officers in the feeder grades on the basis of ACR gradings, the recommendations of the Sub-committee and other relevant aspects. The Trombay Council, after review, finalizes the list of officers to be interviewed by a Selection Committee constituted by the DAE for considering them for promotion to the next higher grade. The list of recommended candidates for assessment for promotion is then forwarded to the Secretariat of DAE for further necessary action. After review of this report in the Secretariat of DAE, the candidates are interviewed by the Selection Committee to assess, on the basis of their merit, to determine their fitness for promotion. While the best of the officers with the highest grades obtained in the ACRs/APARs are considered in a given year for interview after the minimum residency period, the system provides 15 OA No. 440/2020 for slower progression of others who are relatively less meritorious as compared to the best.
17. They contend that the applicant was promoted to the post of SO-F on 1st August, 2004. On 18th May, 2011 the applicant was found unfit for promotion to the next grade of SO-G. The applicant preferred OA No.649/2011 before this Tribunal seeking relief for redressal of his grievances. This OA was disposed of on 30th October, 2015 with direction to the respondents. Pursuant to these directions, the Committee was constituted. The Committee submitted its report on 4th July, 2016. As per the recommendations of the committee, the applicant was not found fit for promotion w.e.f. 1st August, 2003 as per the then prevailing norms. The respondents also constituted a Departmental Promotion Committee (DPC) to review and consider case of the applicant for promotion to the grade of SO-F w.e.f. 1st August, 2003. The applicant was asked to appear for interview for promotion to the grade of SO-F. The applicant refused to appear for the interview. Similarly, applicant was also asked to appear for the interview for his promotion w.e.f. 1st August, 2008. The applicant appeared 16 OA No. 440/2020 for the interview but did not take any action. According to him, he should be considered for promotion without conducting the interview. Therefore, the committee could not assess the suitability for promotion as per the MPS scheme to the grade of SO-F w.e.f. 1st August, 2003 and to the grade of SO-G w.e.f. 1st August, 2008. The applicant was promoted as SO-G on 1st July, 2012.
18. They contend that the applicant was promoted to the post of SO-F on 1st August, 2004. He, therefore, could be considered for promotion to the grade of SO-G as per the normal residency period of 5 years in which a candidate should have at least four A-1 gradings. OA No.649/2011 was disposed of on 30th October, 2015.
19. The respondents considered the representation dated 9th February, 2016 (i.e. the representation made pursuant to the directions of this Tribunal in OA No.649/2011) and constituted an Independent Committee to examine the applicant's representation. On 4th July, 2016 the Chairman of the committee submitted its recommendations. The committee concluded that it did not find any basis for acceding to any of the pleas made by 17 OA No. 440/2020 the applicant and recommended that his representation be disposed of accordingly. They contend that under MPS scheme interview is an essential element of the selection procedure for promotion in scientific cadre of the respondent department. Refusal of the applicant in the interview to take questions rendered himself unfit for consideration of promotion w.e.f. 1st August, 2003 and 1st August, 2008.
20. The applicant had filed OA No.117/2020 before this Tribunal. It was withdrawn with liberty to file a fresh OA. Accordingly, applicant filed OA No.440/2020. Applicant had filed MA No.137/2021 in OA No.440/2020 with a prayer to modify/clarify the order dated 6th January, 2021 and 13th January, 2021 passed by the Tribunal. The Tribunal passed the order dated 22nd March, 2021, wherein the Tribunal observed that the issue under discussion during the applicant's submission on the last occasion, i.e. 13th January, 2021 was on his insistence that the Tribunal had ordered only for promoting the applicant and not for considering him for promotion in view of his subsequent promotion to that post. After hearing the applicant, the 18 OA No. 440/2020 Tribunal had specifically directed learned counsel for applicant to show the instructions of DOP&T, DAE or any other rules in which it has been stipulated that if the person has been promoted to a particular post subsequently, for his antedated promotion his fitness need not be assessed again. The respondents have extracted para 6 & 7 of the order dated 22nd March, 2021 which reads as under:
"6. On his insistence today that all the required documents are on record, when he was directed specifically to point out the above mentioned stipulation about no requirement of fresh assessment of the Applicant for fitness for promotion from an earlier date, he has referred to the DoPT OM dated 13.01.2015 on pages 36-361 of the OA, and has himself read today Para 3 (iii) of this OM states that "Officers who have already been empanelled or placed in the extended panel but could not be promoted due to the vacancies not actually being available need not be reassessed by the supplementary DPC as his assessment matrix remains the same."
7. Unfortunately for him, in this paragraph and the OM too, there is no stipulation that for antedating promotion of a person, who has been subsequently promoted to a post, it is not necessary to assess his fitness on that date from when the antedated promotion is sought. From this we conclude that Shri Nagrani obviously is unable to submit any such document. Then the right approach for him is to say so."
21. The respondents contend that the OA is barred by limitation. The order dated 4th July, 2016 has been challenged in the month of December, 2020. They further contend that in view of the orders of this Tribunal on MA 19 OA No. 440/2020 No.137/2021 in present OA, the respondents were within their right to call the applicant for interview.
22. They further contend that the process of APAR started in the year 2010. Before that the respondents were following the previously established policy of ACR, and there was no need of communication of grading to the employee and only adverse remarks were communicated if the employee was graded "below average". They further contend that all committee members are of domain experts and holding senior managerial posts in their respective units. The committee has been constituted as per the directions of the Tribunal vide order dated 30th October, 2015. Therefore, there was no question of seniority involved. Therefore, the allegations made by the applicant regarding the competency of the members are liable to be dismissed in limine for lack of merit. They further contend that Sh. Noor Ahmed, Sr. DGM has lesser pay than the applicant. However, Sh. Noor Ahmed was holding the post of Sr. DGM in ECIL. The respondents constituted multi- disciplinary and multi-unit committee within the department to deliver justice to the applicant. The sole 20 OA No. 440/2020 purpose of the committee was to examine allegations and counter-allegations with respect to the contentions of the representation dated 9th February, 2016. Therefore, the competence of Shri Noor Ahmed is irrelevant. They further contend that applicant was communicated APAR grading. Finally, evaluation sheets are also being provided to him on domain following prevalent departmental mechanism. The respondents contend that the guidelines for communication of APAR vide letter dated 22nd August, 2012 are as under:
"a. Email/telephonic intimation to the concerned employee for meeting with the communicating Authority in his/her chamber at a predetermined day and time.
b. Offering Format 1 which contains overall grade and special remarks for his acceptance/non-acceptance of his overall grade and response.
c. Acceptance is conveyed by the officer reported upon by signing the Format 1 in acceptance part.
d. In case of non-acceptance, he has to sign in non- acceptance part of the Format 1.
e. In case of non-acceptance, the employee has to fill a request form (Format 2) for giving him final marks against each attributes.
f. After the receipt of Format 2, he is given the final marks against each attributes of the evaluation sheet in a new sheet (Format 3) which is countersigned by the Accepting Authority."
These guidelines are not challenged.
21 OA No. 440/2020
23. If the officer concerned is not satisfied with the overall grading, he is supposed to submit a written request to the accepting authority in Format-II. The overall grading along with attributes with relevant markings/assessment will be given to the officer concerned by the accepting authority in Format-III.
24. The applicant has made an additional grievance that upon completion of 6 years on 30th June, 2019, applicant claims for next grade of promotion along with the officers who have been promoted. The officers considered for normal promotion are those who have completed 6 years as SO-H and have received A-1 APAR grading in the last 6 years. Applicant is not fulfilling the minimum required norms for screening of his case. Therefore, this renders him ineligible to the grade of Outstanding Scientist. The applicant had participated in the process initiated by the respondents but thereafter being declared unsuccessful in the interview, he is challenging the process by virtue of which he had been promoted earlier. Therefore, applicant 22 OA No. 440/2020 cannot challenge this procedure. On this ground they prayed for dismissal of the OA.
25. Applicant filed rejoinder. In rejoinder applicant contends that respondents have admitted that one committee member Sh. Noor Ahmed has lower basic pay than the applicant. This is sufficient to set aside the committee's report dated 4th July, 2016. Giving access to entire ACR/APAR dossier of applicant to an officer with lower basic pay is a serious illegality. In the rejoinder he has contended that APARs of 2010-11, 2011-12, 2012-13 were never communicated. The expected communication date was 7th September 2011 for the year 2010-11. For the year 2011-12, the expected communication date was 7 th September, 2012. For the year 2012-13, the date on which APAR should have been communicated was 7th September, 2013. However, the applicant was communicated the APAR for the year 2010-11 on 23rd November, 2011. For the year 2011-12 APAR was communicated on 15th April, 2013 and for the year 2012-13, the communication was made on 3rd March, 2014. All these communications were not of entire APAR but was only of Format-I, i.e., only 23 OA No. 440/2020 grading. The applicant made representation on 8th December, 2011 for APAR for the year 2010-11. He made representation on 29th April 2013 for APAR for the year 2011-12 communicated on 7th September, 2012. He made representation for APAR for the year 2012-13 on 13th March, 2014. He further contends that the APAR for the years 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 were communicated to the applicant on 8th May, 2019.
26. Respondents filed reply to rejoinder. They have repeated all the allegations made in the reply. They contend that all the representations made by the applicant have been decided. No new point is raised in the sur- rejoinder.
27. Applicant has filed MA No.5/2020 for condonation of delay. Applicant contends in application for condonation of delay that OA No.649/2011 was disposed of on 30 th October, 2015 by giving various directions. Respondents handed over to the applicant committee's report dated 4 th July, 2016 on 27th January, 2017. After judicial scrutiny of committee's report dated 4th July, 2016, this Tribunal vide order dated 5th March, 2018 observed that "Record 24 OA No. 440/2020 shows that the order passed by this Tribunal is still not complied with by the Respondents even after one year of filing of Contempt Petition". This Tribunal vide order dated 9th August, 2019 closed the Contempt Petition observing that the respondents have filed compliance report considering all the directions of this Tribunal in OA No.649/2011. He contends that the order of the Tribunal was fully complied with only on 9th August, 2019 and applicant preferred the OA on 26th October, 2020. According to him, the OA is, therefore, within limitation.
28. Respondents filed reply to application for condonation of delay. Respondents contend that there is a delay of about 4 years and 5 months since the report of the committee was tendered on 4th July, 2016. They contend that the applicant was not vigilant. The respondents admit that while submitting compliance report before this Tribunal, the Tribunal closed the Contempt Petition No.2/2017. The applicant had challenged the committee's report dated 4th July 2016, order dated 21st May, 2018, 22nd May, 2018, 1st June, 2018 in OA No.117/2020. There was a delay of more than 15 months in filing OA 25 OA No. 440/2020 No.117/2020. This OA was withdrawn with liberty to file a fresh OA vide order dated 4th February, 2020. The applicant has thus committed delay of more than two years in filing this OA.
29. We have heard party in person and learned senior counsel for the respondents.
30. We will first deal with application for condonation of delay.
31. The applicant had filed OA No.649/2011 in which this Tribunal issued several directions. Since the order was not complied with, the applicant filed Contempt Petition No.2/2017. This Tribunal had made an observation that despite passage of one year, the order of the Tribunal was not complied with. The order was finally complied with and compliance report was filed on 9th August, 2019. Thus, the applicant came to know that the order was complied with and thereafter he challenged those orders. This clearly indicates that the applicant has challenged these orders within one year from the date of closure of the 26 OA No. 440/2020 Contempt Petition. Therefore, in our opinion, there is no delay.
32. Now we advert to arguments of the parties.
33. The party in person contends that this is the second round of litigation. He had approached Tribunal by filing OA No.649/2011 which was allowed vide order dated 30 th October, 2015. The applicant contended that the respondents admitted that one of the members Mr. Noor Ahmed's pay was less than the pay of applicant. This itself is a very good ground for setting aside the report of the committee. Instead of looking into allegations, the committee has given comments on uncommunicated ACRs/APARs for the years 1992-93 till 2014-15. The Tribunal had specifically directed vide order dated 30th October, 2015 to consider the applicant for promotion to the post of SO-F w.e.f. 1st August, 2003 after ignoring the ACRs of 1998-99 and 2000-01. The committee was not supposed to deal with these two ACRs still committee recorded that the assessment of these two years was in order. The committee was directed predating applicant's promotion as SO-G w.e.f. 1st July, 2008. The committee 27 OA No. 440/2020 stated that promotion to SO-G w.e.f. 1st July, 2012 was in order. This recommendation is in violation of the order passed by this Tribunal. The applicant contends that he has already cleared the interview for SO-F in the year 2004 which is antedated to 1st October, 2003. He has already cleared the interview for SO-G in the year 2012 which is to be antedated to 1st July, 2008. SO-G is a higher post than SO-F. Therefore, question of calling the applicant for interview for lower post of SO-F does not arise and that was also not the direction of this Tribunal. In committee's report dated 4th July, 2016, there is no averment with regard to interview of the applicant for antedating promotion of SO-F and SO-G. Therefore, non-requirement of interview for antedating promotions attained finality. If the interview was required, the respondents could have held the interview within 8 weeks of passing of order by the Tribunal. Nowhere in Rules dated 9th June, 2014 it is mentioned that for antedating promotions, interview is required. As per DOP&T rules, interview is not required as assessment matrix remains the same.
28 OA No. 440/2020
34. He further contended that in the Writ Petition before the Hon'ble High Court, the respondents contended that under MPS scheme it is not practically possible to reassess the candidate for promotion after a considerable long time. He contended that applicant's reporting and reviewing officers of the years 2004-05 to 2008-09 have retired as on 22nd May, 2018. Therefore, the assessment of ACRs/APARs for the years 2004-05 to 2008-09 as per rule is practically not possible, and therefore, these need to be ignored. He contended that the issues involved in this OA are whether uncommunicated ACRs/APARs which are adverse to the applicant should have been ignored for promotion and whether reinterview was required for antedating promotion.
35. So far as uncommunicated ACRs/APARs are concerned, he contended that ACRs/APARs of 2004-05 to 2008-09 have not been communicated to the applicant. He contended that the respondents communicated only one page in Format-I by which only grading was communicated to the applicant. As per judgment of Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India, (2008) 8 SCC 725, the respondents have to provide the entire 29 OA No. 440/2020 ACR/APAR to the employee. Therefore, communication of grading is no communication of APAR at all in terms of judgment of Hon'ble Supreme Court. As per the judgment of Hon'ble Supreme Court in the case of Dev Dutt (supra) each and every entry has to be communicated to the employee. The respondents have not communicated each and every entry of ACR/APAR to the applicant, and therefore, the same is in violation of the order of Hon'ble Supreme Court. He contended that his APAR for the years 2004-05 till 2008-09 were written by Mr. B.S.V.G.Sharma on the instructions of his superior. The said Sh. Sharma has given in writing that during assessment he checked with Head, RED for giving the grading and followed his instructions. This letter bears the date 24th March, 2010. From this letter, it is clear that Sh. Sharma had written the APAR of the applicant not on the basis of his own assessment but upon the instructions of some superior officer. Therefore, the APARs written by said Sh. Sharma need to be ignored. He further contended that the minimum residency period from SO-G to SO-H is 5 years. Therefore, the APARs for the years 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12 are relevant. For the 30 OA No. 440/2020 APARs 2010-11, 2011-12 and 2012-13 applicant was given single page Format-I. Subsequently, Format-III was handed over wherein numeric grading was written. Thus, complete APAR was never communicated as it is required to be communicated by law. Identity of reporting and reviewing officer was not divulged.
36. Applicant submitted that his ACRs/APARs from 2004- 05 to 2008-09 have been manipulated by reporting and reviewing officers. He contended that reporting officer Sh. B.S.V.G.Sharma has given in writing on 24th March, 2010 that he had given the grading following the instructions of Head, RED. Head, RED was reviewing officer and he gave instructions to use pencil in assessment. He submitted that as per OM dated 10th April, 1989 when ACRs are ignored, DPC should consider ACR of the preceding year in question and, in case these are also not available, DPC should take ACRs of lower grade into account to complete number of ACRs. If this is also not possible, all the available ACRs should be taken into account. He was given threat by his superiors from BARC after filing OA No.649/2011. The APAR for the years 2018-19, 2019-20, 31 OA No. 440/2020 2020-21 have not been communicated, and therefore, they are vitiated. The APARs of the applicant have been damaged with pre-planning. The candidates whose track record is not comparable to applicant were promoted to higher post.
37. He contended that Performance Related Incentive Scheme Individual [PRIS(I)] has two components, i.e. PEIS(I)-M and PRIS(I)-N. PRIS(I)-M component consists of 4 increments for officers upto SO-G. Promotion in minimum residency period ensures that PRIS(I)-M component is 4 increments and goes on reducing by 1 for each successive year in which an officer is not screened in for promotion. PRIS(I)-N component has 2 increments, which is part of yearly APAR assessment. From PRIS manual it is evident that for SO-H, Outstanding Scientist and Distinguished Scientist, 6 increments of PRIS was decided by DPC. Once promotions in minimum residency period are obtained for SO-H, Outstanding Scientist and Distinguished Scientist, PRIS (I) gets restored to maximum 6 increments. As per OM dated 10th April, 1989, a review DPC is required to consider the case again only with reference to technical or 32 OA No. 440/2020 factual mistakes that took place earlier and it should neither change the grading of an officer without valuation. Proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration and if material facts have not been brought to the notice of DPC or if there are any grave errors in the procedure followed by DPC, it may be necessary to convene review DPC to rectify certain unintentional mistakes. Therefore, review DPC is not required. He has placed reliance on following case laws:
(i) Rukhsana Shaheen Khan vs. Union of India & Ors., (SC) Civil Appeal No.32/2013 decided on 23rd July, 2015.
(ii) Prabhu Dayal Khandelwal vs. Chairman, UPSC & Ors.,(SC) Civil Appeal No.8006-8007/2003 decided on 23 rd July, 2015.
(iii) Shiv Kumar vs. M.P.Paschim Kshetra Vidyut, Writ Petition No.3792/2015(S) decided on 12st August, 2019 by Hon'ble Madhya Pradesh High Court.
(iv) Union of India & Ors. Vs. Pirthwi Singh & Ors.,(SC) Civil Appeal (arising out of Diary No.8754/2018) decided on 24th April, 2018.33 OA No. 440/2020
(v) Priya Gupta & Anr. vs. Addl. Secy. Ministry of Health & Family Welfare & Ors., (SC) Suo Motu Contempt Petition Nos.195-196 of 2012 in Civil Appeal No.4318 and 4319/2012 decided on 13th December, 2012.
(vi) Girish Mittal vs. Parvati V. Sundaram & Anr., (SC) CP(C) No.928/2016 decided on 26th April, 2019.
(vii) South Central Railway Employees Co-op. Credit Society Employees Union vs. B.Yashodabai and others, (SC) Civil Appeal No.7130/2002 decided on 8th December, 2014.
(viii) Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., (SC) Civil Appeal No.4000/2019 decided on 11th January, 2022.
(ix) R.K.Jibanlata Devi vs. High Court of Manipur through its Registrar General and others, (SC) WP (C) No.1209/2021 decided on 24th February, 2023.
(x) H.S.Bedi vs. National Highway Authority of India, RFA 784/2010 decided on 22nd January, 2016 by Hon'ble Delhi High Court.
(xi) Subrata Roy Sahara vs. Union of India and others, (SC) WP (Criminal) No.57 of 2014 decided on 6 th May, 1914.34 OA No. 440/2020
(xii) Life Insurance Corporation of India vs. Sanjeev Builders Private Limited & anr., (SC) CA No.5909/2022 decided on 1st September, 2022.
(xiii) Dev Dutt vs. Union of India, (2008) 8 SCC 725.
(xiv) Abhijit Ghosh Dastidar vs. Union of India & Ors., (2009) 16 SCC 146
(xv) Union of India & Anr. Vs. V.S.Arora & Ors., 2012:DHC:3773-DB (xvi) Saji K. Sam, Engineer (SF) vs. The Director, ISRO Inertial Systems Unit, OA No.475/2011 decided on 15th May, 2012 by Ernakulam Bench of this Tribunal.
(xvii) Orbit Electricals Private Limited vs. Deepak Kishan Chhabria and anr. (SC), Contempt Petition (C) No.1195/2023 in C.A.No.6108/2023 decided on 18th October, 2023.
(xix) Suo Motu Writ Petition (Civil) No.3 of 2020 decided on 8th March, 2021.
(xx) Barium Chemicals Ltd. & Anr. Vs. A.J.Rana & ors., 1972 SCC (1) 240.
(xxi) Comptroller and Auditor General of India, Gian Prakash, NEWD vs. K.S.Jagannathan & Anr., 1986 SCC (2) 679.35 OA No. 440/2020
(xxii) Sathyanath & Anr. Vs. Sarojamani, Civil Appeal No.3680/2022 (xxiii) L.Chandra Kumar vs. Union of India and others, 1997 (3) SCC 261.
(xiv) Rajasthan Public Service Commission vs. Balveer Singh Jat and others, (2015) 13 SCC 620.
38. Shri Shetty, learned senior counsel submitted that it is the practice of the respondents to communicate only grading. If any employee is not happy with the grading, he can take an objection in Format-II to the respondents and on that application, the Government servant is provided with an evaluation sheet in Format-III. He submitted that the applicant has been provided with the gradings in Format-I. If the applicant was not satisfied with the grading, he ought to have made application in Format-II to the respondents. The respondents could have furnished him the entire evaluation sheet in Format-III. This procedure is followed because of the strategical importance of the department. The respondent department deals with the atomic energy and other equipment necessary for the defence of the country. If entire ACRs are made available 36 OA No. 440/2020 to the employees, it would amount to disclosure of confidential information and the possibility of such an information being exposed in the hands of unscrupulous elements/anti national elements cannot be ruled out. He contended that none of the employees, except the applicant and few others, has raised any objection to this practice. Simply because the grading is communicated to the applicant and entire ACR is not communicated, it does not amount to non-communication of ACR/APAR. What the employee has to do is to simply apply in the Format-II and the entire evaluation sheet in Format-III is made available to the employee. Therefore, no fault can be found with this procedure. He contended that gradings of all the years are communicated to the applicant. He contended that in the case of Dev Dutt (supra), the Hon'ble Supreme Court has held that every entry in the ACR should be communicated to the employees in all the departments except Armed Forces. Technically, the respondents' department may not be an Armed Force but it is certainly a part of the defence establishment of the Armed Forces and it provides logistics to ammunition and other support to Armed Forces. Therefore, the applicant's contentions are covered by 37 OA No. 440/2020 observation of Hon'ble Supreme Court in the case of Dev Dutt (supra). He submitted that the committee submitted its report and recommended that there was no manipulation. There were no mal practices, malafides in writing the ACRs/APARs of the applicant. He further submitted that this Tribunal vide order dated 30th October, 2015 passed in OA No.649/2011 in para 46 had directed the respondents to hold DPC after communicating the remarks and after receiving representations. The respondents follow MPS scheme. The respondents do not follow vacancy based promotions. Therefore, as per the MPS scheme, interview is an integral part of the promotions. The applicant was called for the interview, but he refused to participate in the interview. The applicant had filed MA No.137/2020 in present OA for clarifying the order. The Tribunal asked the applicant to point out any OM/circular/provision to show that interview is not necessary for antedating promotion. From the observation of this Tribunal, it is clear that for antedating promotion, interview is an essential part. Therefore, the applicant cannot now contend that he will not participate in the 38 OA No. 440/2020 interview. Therefore, direction in this regard cannot be given. He has placed reliance on the following case laws:
(i) Anil Kumar vs. Union of India & ors., (2019) 4 SCC 276
(ii) Pankaj Prakash vs. United India Insurance Co. Ltd.
& Ors., (2020) 17 SCC 590
(iii) P.Sivanandi vs. Rajeev Kumar & Ors., (2017) 4 SCC 579
(iv) G.Mohansundaram vs. R.Nanthagopal & Ors., (2014) 13 SCC 172.
(v) Sukhdev Singh vs. Union of India & Ors., (2013) 9 SCC 566.
(vi) Dev Dutt vs. Union of India & Ors., (2008) 8 SCC 725
(vii) Abhijit Ghosh Dastidar vs. Union of India & Ors., (2009) 16 SCC 146
(ix) Rahul Sharma vs. Union of India, W.P.No.1867/2021 decided on 10th June, 2022 by Hon'ble High Court of Bombay.
(x) Chairman & Managing Director, Indian Airlines vs. Binod Kumar Sinha and others, (2001) 8 SCC 722. 39 OA No. 440/2020
(xi) K.Madhavan and anr. Etc. vs. Union of India and ors. Etc., (1987) 4 SCC 566.
(xii) Suneeta Aggrwal vs. State of Haryana & ors.,(SC) decided on 11th February, 2000.
(xiii) Sathyanath & Anr. Vs. Sarojamani, (SC) Civil Appeal No.3680/2022 decided on 6th May, 2022.
39. We have given thoughtful consideration to the submissions made by the applicant in person and learned senior counsel for the respondents. We have been taken through the pleadings of the parties and voluminous record produced by the parties.
40. Following questions arise for determination of the case:
(i) Whether communication of grading with a stipulation that "if the employee wants the entire evaluation sheet, it can be provided on making application" amounts to non-
communication of remarks.
(ii) Whether, considering the national interest, each and every entry in the ACR has to be communicated. 40 OA No. 440/2020
(iii) Whether as per directions of this Tribunal in OA No.649/2011, interview is a necessary component for antedating promotion.
41. The ACRs/APARs are the pen picture of the performance of the employee. Earlier only adverse entries used to be communicated to the applicant. This system underwent a change because of the judgment of Hon'ble Supreme Court in the case of Dev Dutt (supra). In the case of Dev Dutt (supra), Hon'ble Supreme Court has held in para 19 as under:
"19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution."
42. It has further held that if the entry is lesser than the bench mark, in that case, though entry is "Very Good" and bench mark is higher than "Very Good" such entry has to 41 OA No. 440/2020 be communicated. In para 18 & 20 of the judgment, Hon'ble Supreme Court observed thus:
"18. For example, if the bench mark is that an incumbent must have 'very good' entries in the last five years, then if he has 'very good' (or even 'outstanding') entries for four years, a 'good' entry for only one year may yet make him ineligible for promotion. This 'good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.
xxx xxx xxx
20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."
43. From this decision, it is apparent that not only when there is a bench mark, but also in all cases, every entry in the ACR/APAR must be communicated to the employee. Hon'ble Supreme Court has held that these directions will not apply to Military officers because the position for them is different.
44. In the case of Abhijit Ghosh Dastidar (supra), Hon'ble Supreme Court has held that the entry which has 42 OA No. 440/2020 not been communicated to the employee has to be ignored. In para 4, Hon'ble Supreme Court held thus:
"4) It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes.
Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
45. In the case of Saji K.Sam, Engineer (SF) (supra), Ernakulam Bench of this Tribunal relying on Abhijit Ghosh Dastidar (supra) has held as under:
"8. ........The DOP&T vide OM No.22011/3/88-Estt.(D), dated 11.5.1990 has directed that where the un- communicated adverse remarks pertain to a period more than 3 years prior to the year in which the DPC is held the DPC may ignore the remarks while making the assessment. The Constitution Bench of the Apex Court in Abhijith Ghosh Dastidar Vs. Union of India in Civil Appeal No.6227 of 2008 decided on 22.10.2008 that once the grading falling below the bench mark has not been communicated, it has to be ignored for consideration for promotion to the higher grade."43 OA No. 440/2020
46. In the case of Union of India vs. V.S.Arora (supra), Hon'ble High Court of Delhi after considering Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra) has held thus:
"24. Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) hold the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation...."
47. In the case of R.K.Jibanlata Devi (supra), Hon'ble Supreme Court has held as under:
"6.4 In the present case the petitioner got "Good"
gradings for the year 2016-17 and received "Very Good"
gradings in her ACRs for the years 2017-18 and 2018- 2019. It was the specific case on behalf of the petitioner which has not been denied that the ACRs grading of "Good" for the year 2016-17 was never communicated to the petitioner even till the DPC met. Therefore, as per the law laid down by this Court in catena of decisions more particularly, as observed and held by this Court in Rukhsana Shaheen Khan (supra); Sukhdev Singh (supra) and Dev Dutt vs. Union of India and Ors, (2008) 8 SCC 725 uncommunicated adverse ACRs may be even with "Good" entry which can be said to be adverse in the context of eligibility for promotion is not to be relied upon for consideration of promotion.
Therefore, uncommunicated ACR for the year 2016-17 having the grading "Good" could not have been relied upon for consideration for promotion.
44 OA No. 440/2020
48. All these authorities of Hon'ble Supreme Court and Hon'ble High Courts lay down the law that uncommunicated adverse entry in the context of eligibility for promotion is not to be relied upon for consideration of promotion, and therefore, they have to be ignored by the DPC.
49. Shri Shetty, learned counsel submitted that when entries are not communicated to the employee, the proper course is to communicate them now and call upon them to make representation. For this purpose, he placed reliance on the case of Anil Kumar (supra) wherein Hon'ble Supreme Court has observed thus:
"18. Hence, we are of the view that the appellant should be granted an opportunity, within a period of four weeks from today to submit his representation in respect of the ACRs for the concerned years where he did not fulfil the benchmark for financial upgradation. Upon the submission of his representation, the respondents shall consider it and communicate the outcome to the appellant within a period of two months thereafter. Based on that decision, the case of the appellant for financial upgradation shall be considered afresh. In the event his ACRs for the relevant period are upgraded, the case for financial upgradation shall be determined within a period of three months thereafter."
50. Similar observations are found in the case of Pankaj Prakash (supra).
45 OA No. 440/2020
51. Learned senior counsel for respondents also relied on the case of Sukhdev Singh (supra) wherein Hon'ble Supreme Court has held as under:
"8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period."
52. The decision of Hon'ble Supreme Court in the case of Sukhdev Singh (supra) does not anywhere say that if the entries are not communicated to the employee, it be communicated now and he be asked to make representation. Therefore, this decision of the Hon'ble Supreme Court has no application to the facts of the instant case.
53. In the case of Prabhu Dayal Khandelwal (supra), Honb'le Supreme Court has held that if there is a considerable time gap, no purpose will be served by 46 OA No. 440/2020 communicating the adverse remarks to the employee and calling upon him to make representation. Relevant para of the order is reproduced as under:
"8. On the issue, whether the representations filed by the appellant against the Reports for the years 1995- 1996, 1996-1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid Annual Confidential Reports were recorded, it would be too late in the day to require the Authorities to adjudicate upon the representations made by the appellant as against the uncommunicated Annual Confidential Reports."
54. From these pronouncements of Hon'ble Supreme Court, it is clear that each and every entry has to be communicated to the employee. It enables the government servant to make a representation, if he is not satisfied with the remarks made in the ACR/APAR. If the remarks are "Good", a government servant gets encouragement to work harder and deliver better.
55. Now the question is whether communication of mere grading tantamounts to non-communication of the entries.
56. Learned senior counsel for the respondents submitted that only grading is communicated to the government servant, if he is not satisfied with the gradings, he may make an application in Format-II for getting the entire 47 OA No. 440/2020 remarks and those are communicated to the government servant and thereafter, the government servant can make representation against those remarks. This procedure is followed having regard to the strategic importance of the institution. If the remarks are communicated routinely to all the government servants, it may expose the secret experiments on which the Scientists are working and it will be detrimental to national interest. For this purpose, he placed reliance on the observation made by Hon'ble Supreme Court in the case of Dev Dutt (supra). In the case of Dev Dutt (supra), Hon'ble Supreme Court held that each and every entry must be communicated to the government servant except in the case of Military officers because they stand on a different footing as clarified in Union of India vs. Major Bahadur Singh, (2006) 1 SCC
368. We do not find any substance in this submission.
57. To counter this submission, the applicant placed reliance on the case of Union of India vs. Sanjiban De, Scientific Officer/G, Research Reactor Design and Projects Division, Bhabha Atomic Research Centre, Trombay, Mumbai (Bombay High Court), 2017 SCC 48 OA No. 440/2020 OnLine Bom 8188. In the decision of Hon'ble High Court of Bombay, respondent No.1 was working as SO-G, Research Reactor Design and Projects Division in BARC, Trombay. He had applied to Central Public Information Officer (CPIO) of the BARC for being furnished his APARs for the years 2008 to 2014. CPIO did not furnish respondent No.1 his complete APARs. Respondent No.1 preferred an appeal before the First Appellate Authority which was dismissed. Aggrieved by this order, respondent No.1 filed appeal before CIC. CIC allowed the appeal and directed the petitioner to furnish complete APARs for the period in question to respondent No.1. This decision was challenged in Hon'ble High Court of Bombay. In para 6, 8 & 9 of Hon'ble High Court of Bombay has held as under:
"6. We have perused with the assistance of the learned Senior Counsel appearing for the Petitioner the file produced for our perusal. In so far as the self-assessment is concerned, the Respondent No. 1 has mentioned the project and places at which he has been working during the relevant years. In so far as the assessment of the Reporting officer is concerned, the Reporting officer can be said to have made an overall assessment of the performance of the Respondent No. 1. The assessment of the Reporting officer in our view does not contain any information, which can be said to be sensitive or is such if revealed would prejudicially affect the interests of the State. In our view, the Reporting officer has in a very subtle manner i.e. without mentioning the details of the projects or the names of the places where the Respondent No. 1 was working, has carried out the assessment of the performance of the Respondent No. 1.49 OA No. 440/2020
xxx xxx xxx
8. Hence, one of the information which is exempted under the said provision is the information, disclosure of which would prejudicially affect the security, strategic, scientific or economic interests of the State. The information therefore has to be such which has the potential to affect the interest of the State. The said information has therefore to be something higher that the appraisal carried out of an employee by the Reporting Officer.
9. The issue has to be looked at from another perspective. As indicated above the Respondent No. 1 has been provided his gradings, but what has been masked, and thereby not provided is the assessment of the Reporting Officer. It is well settled that the process of appraising an employee's performance and communicating the same is with a view to give an opportunity to the employee to correct himself or improve himself and also to enable him to take recourse against the adverse remarks which are appearing in his confidential reports. Hence, the information which has not been furnished to the Respondent No. 1 would be such information which would only enable the Respondent No. 1 to improve or correct himself. However, depriving an employee of the appraisal of the Reporting Officer would tantamount to denying the employee an opportunity to correct or improve himself or to represent against what has been recorded in his annual confidential reports."
58. From these observations of Hon'ble High Court of Bombay, it is clear that government servant has to be provided with each and every entry in the APAR. However, this Bombay High Court decision is not an authority on the issue involved in this OA. Issue involved in the case Sanjiban De (supra) was whether some of the entries can be masked. And the answer was in the negative. Issue 50 OA No. 440/2020 involved in this OA is whether communication of only grading tantamounts to non-communication of ACR/APAR.
59. Now the question is whether communication of only grading in Format-I amounts to non-communication of ACR/APAR. We do not think that communication of only grading amounts to non-communication of ACR/APAR. The respondents contend that guidelines have been framed in this regard which are quoted in para 22 of this judgment. These guidelines show that if a government servant is not happy with the gradings, he has to apply in Format-II and thereupon, he will be supplied with entire evaluation sheet in Format-III. This shows that the government servant has been given the option to call for the entire evaluation sheet in case he is not satisfied with the gradings. Therefore, it cannot be said that communication of only gradings amounts to non- communication of ACR/APAR. Moreover, applicant has not challenged these guidelines. For this reason also, it cannot be said that communication of only grading amounts to non-communication of ACR/APAR. Party in person submitted that as per Supreme Court decision in Dev Dutt 51 OA No. 440/2020 case (supra), all entries have to be communicated and the respondents are not communicating the entries. We do not find any substance in this contention. The respondents do communicate all the entries on filling Format-II.
60. It was argued by Sh. Shetty, learned senior counsel that period of 90 days within which ACR/APAR is to be returned to reporting officer demitting office is only directory and not mandatory. For this purpose, he placed reliance on the case of G.Mohansundaram vs. R.Nathagopalan and others, AIR 2015 SC 141. This decision has no application to the facts of the case at hand because there was a government order dated 4th April, 2007 vide which government issued guidelines with respect to writing of ACR. In the said government order it was stated that reporting officer while relinquishing charge on transfer for other reasons should write confidential reports in respect of all the subordinate officers. If this is not possible, the report should be written ordinarily within a period of 90 days from demitting of his office. In the guidelines there was nothing to declare any ACR invalid, and therefore, the period of 90 days prescribed therein was 52 OA No. 440/2020 held to be directory and not mandatory. In the case at hand, the applicant has alleged that he was communicated confidential report later than the scheduled period. The Government has issued the OM dated 16th February, 2009 in which it is stated that if the reporting officer and reviewing officer do not write the report, they will forfeit their right to write the confidential report. Therefore, if there is delay in writing the confidential reports, the reporting and reviewing officer will forfeit their right to write the confidential reports of the applicant.
61. The next question that arises is whether the interview is the integral part for antedating promotion. This Tribunal issued following directions in OA No.649/2011. These directions are as under:
"45. In view of this, it is imperative on the part of the respondents to communicate the below Bench Mark gradings of the Applicant to him as per the prevalent rules. In the circumstances of the case, and in view of the allegations made by him, the Applicant may be permitted to give a detailed representation to the respondents on his perception of the possible reasons for the below Bench Mark Gradings obtained by him. On the basis of his representation the respondents may reassess and re- evaluate his APARS ta consider whether he deserves a grading higher than what he has got. Simultaneously, his case may be put up to a Committee to be constituted by the respondents to examine his detailed grievance on non-promotion as referred to in Para 30 above. The Committee may examine the allegations and counter- allegations as contained in the present O.A. to arrive at its logical conclusions. The recommendation of the 53 OA No. 440/2020 Committee may be put up to the DPC along with the decision on revision of gradings of ACR/APAR for considering promotion of the Applicant to Scientific Officer Gr. G as per extant rules and procedures. So far as the issue of PRIS-I is concerned, that also depends on the date of his promotion as well as the gradings obtained by him. This can be considered by the respondents after finalising his representation on the APARS and a decision on his promotion to Scientific Officer G.
46. In view of the above, the following directions are issued:
The respondents are directed to consider
(i) the Applicant's prayer for promotion to the post of Scientific Officer-F with effect from 1.8.2003 after ignoring the gradings in the ACR in the year 1998-99 and 2000-01 and pass appropriate order within eight weeks from the date of receipt of a copy of this order.
(ii) On the prayer of the Applicant for promotion to Scientific Officer G with effect from 1.8.2008, the respondents are directed to communicate a copy of ACRs/APAR to the Applicant for all the relevant years preceding 2009 and on receipt of his response, reassess and re-evaluate his ACRs/APARs as per rules. The Applicant is also directed to submit to the respondents a detailed representation regarding his non-promotion to the post of Scientific Officer-G in the year 2009 covering the grounds taken in the O.A. The respondents are directed to constitute a Committee to consider his representation along with the allegations and counter-
allegations contained in the O.A. and give its recommendations. After this exercise is completed the respondents are directed to put up the case of the Applicant before the DPC for consideration of his case for promotion to the post of Scientific Officer G with effect 1.3.2008 as per the extant rules and procedures taking into account the decision on ACRs/APARs and recommendations of the above mentioned Committee. The whole exercise should be completed within a period of 16 weeks from the date of receipt of a copy of this order.
(iii) The prayer relating to PRIS-I will be governed by the directions contained in para (ii) above." 54 OA No. 440/2020
62. These directions comprise of two parts. First part is para 46 (i) pertains to direction given to the respondents to ignore the gradings in the ACR in the years 1998-99, 2000- 01 and pass appropriate order within eight weeks with respect to antedated promotion w.e.f. 1 st August, 2003. Second part pertains to directions in para 46 (ii) to the respondents to communicate a copy of the ACR/APAR to the applicant for all the relevant years preceding 2009 and on receipt of this response, reassess and re-evaluate his ACRs/APARs as per rules. The respondents were directed to constitute a committee to consider his representation along with allegations and counter-allegations contained in the OA and give its recommendations. After this exercise is complete, respondents were further directed to put up the case of the applicant before the DPC for consideration of his case for promotion to the post of SO-G w.e.f. 1 st March, 2008. No committee was directed to be constituted for his promotion to the post of SO-F w.e.f. 1st August, 2003.
63. We shall now deal with the directions in first part, i.e., promotion to the post of SO-F w.e.f. 1st August, 2003. The respondents constituted a committee which submitted its 55 OA No. 440/2020 report on 4th March, 2016. The report of the committee contains in para 6 (1) to (14) pertains to the ACRs upto 2003-04. From this report, it is seen that the gradings of the applicant are as under:
1. August 1992 A1
2. 1993-94 A1
3. 1st August, Promotion as SO-D 1994
4. 1994-95 A1
5. 1995-96 A1
6. 1996-97 A1 - counter-sigining officers had upgraded his markings
7. 1997-98 A1
8. 1st August, Promoted as SO-E 1998
9. 1998-99 Directed to be ignored by this Tribunal as those remarks were not communicated.
10. 1999-2000 A1
11. 2000-2001 Directed to be ignored by this Tribunal as those remarks were not communicated
12. 2001-02 A1
13. 2002-03 A1
14. 2003-04 A1 56 OA No. 440/2020
64. The Committee concluded that:
"Based on his grading in the years from 1998-99 to 2003- 04 (A3, A1, A2, A1, A1, A1) he was screened-in as per norms (Residency period of 6 years), and promoted to grade SO/F w.e.f. 1.8.2004 after successfully clearing the promotion interview. Regarding his claims for A1 grade for all the years (which would have made him eligible to appear for DPC in 2002-03 but not necessarily get promoted that year). Committee is of the view that there is nothing in the APAR grading of these years to suggest bias, prejudice or irregularity on the part of his superiors."
65. This clearly shows that the directions of this Tribunal were followed in breach. The respondents were directed to ignore the ACR of 1998-99 (in which he was graded A3) and 2000-01 (in which he was graded A2) as they were not communicated. These two ACRs ought to have been ignored by the respondents but the Committee considered these ACRs. When ACRs are to be ignored, further procedure to be followed has been explained by Hon'ble High Court of Delhi in the matter of V.S.Arora (supra), which reads as under:
"24. ........ Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I, Dept. of Per. & Trg., O.M No. 22011/5/86-Estt.(d), dated the 10 April, 1989 as amended by O.M No. 22011/5/91-Estt.(d), dated the 27 March, 1997 as amended/substituted vide Dept. of Per. & Trg., O.M No. 22011/5/98-Estt.(d), dated the 6 57 OA No. 440/2020 October, 2000). The relevant portion of the guidelines reads as under:-
"6.2.1 Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence -
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment Rules.
The 'preceding five years' for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8- 9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx"
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub- paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub- paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the 58 OA No. 440/2020 view that the same would apply in the case of non- communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason.
66. In view of these directions and the OM dated 6th October, 2000, the respondents ought to have considered the earlier two APARs in which the applicant has been graded A1 for the years 1996-97 and 1997-98 and taken a decision regarding his promotion. The respondents did not do that. The next question is whether the action of the respondents to call the applicant for interview was justified. As indicated earlier, directions of this Tribunal were that the ACRs of 1998-99 and 2000-01 were to be ignored and respondents were directed to pass appropriate orders within eight weeks. From these directions, it is clear that respondents were not supposed to hold the interview but by ignoring the aforesaid two ACRs, they were supposed to pass appropriate orders. Therefore, for antedated promotion w.e.f. 1st August, 2003, interview was not required to be held. In this view of the matter, it cannot be said that the action of the respondents in calling the applicant for interview was legal. In view of the above, we deem it appropriate to direct the respondents to ignore the 59 OA No. 440/2020 ACRs/APARs of 1998-99 and 2000-01. After ignoring the ACRs/APARs of these two years, i.e. 1998-99, 2000-01, if the respondents come to the conclusion that the applicant deserves promotion from 1st August, 2003, he shall be entitled to all the consequential benefits including PRIS.
67. This takes us to the next question as to whether for antedated promotion w.e.f. 1st August, 2008, interview was necessary. As already indicated in above paragraphs, the committee was directed to communicate a copy of ACRs/APARs for all the relevant years preceding 2009 and on receipt of this response, reassess and re-evaluate his ACRs/APARs as per rules. The applicant was directed to submit a detailed representation regarding his non- promotion to the post of SO-G in the year 2009 covering the grounds taken in the OA. The respondents were directed to constitute a committee to consider his representation along with the allegations and counter- allegations contained in the OA and give its recommendations and thereafter they were directed to put up the case of the applicant before the DPC for considering 60 OA No. 440/2020 his case for promotion to the post of SO-F w.e.f. 1st August, 2008 as per extant rules and procedures. These directions clearly show that after the recommendation by the Committee, the case was to be put up before the DPC for consideration of the case of the applicant for promotion to the post of SO-G w.e.f. 1st August, 2008 as per extant rules and procedures taking into account his ACRs/APARs.
68. It is not disputed that the promotions in BARC are on the basis of MPS scheme and not on the basis of vacancy. MPS contains a clause that for promotion interview will be held. Therefore, when the direction is given by this Tribunal to put up the case of the applicant before DPC which means it was required to follow the extant rules and procedures. The extant rules and procedure show that for promotion, interview has to be conducted.
69. In the present OA, applicant had filed MA No.137/2021. After hearing the parties on MA, this Tribunal passed an order on 22nd March, 2021, relevant part of which reads as under:
"5. As far as we recollect, the issue under discussion during Shri Nagrani's submission on the last occasion was his insistence that the Tribunal had ordered only for promoting the applicant and not for considering him for 61 OA No. 440/2020 promotion in view of his subsequent promotion to that post. However, after hearing him on the last occasion, we had specifically directed Shri Nagrani to show us instructions of DoPT, DAE or any other rules in which it has been stipulated that if the person has been promoted to particular post subsequently, for his antedated promotion his fitness need not be assessed again. When he was unable to point Out such stipulation in any of the documents enclosed with the OA, we did direct the applicant to bring on record any instructions of DOPT Or DAE to that effect. Therefore, what has been recorded in our orders is correct. However, we will keep MA Nos.137/2021 and 05/ 2021 pending for further hearing.
6. On his insistence today that all the required documents are on record, when he was directed specifically to point out the above mentioned stipulation about no requirement of fresh assessment of the applicant for fitness for promotion from an earlier date, he has referred to the DoPT OM dated 13. 01.2015 on pages 360-361 of the OA, and has himself read today Para 3(iii) of this OM states that 'Officers who have already been empanelled or placed in the extended panel but could not be promoted due to the vacancies not actually being available need not be reassessed by the supplementary DPC as his assessment matrix remains the same'.
7. Unfortunately for him, in this paragraph and the OM too, there is no stipulation that for antedating promotion of a person, who has been subsequently promoted to a post, it is not necessary to assess his fitness on that date from when the antedated promotion is sought. From this We conclude that Shri Nagrani obviously is unable to submit any such document. Then the right approach for him is to say so."
70. This order clearly shows that for antedated promotion for SO-G fitness has to be tested and fitness includes interview. The applicant refused to appear for the interview in view of the letter dated 1st June, 2008.
62 OA No. 440/2020
71. So far as the allegations of the applicant that there was malice against the applicant because of which his ACRs were downgraded by the respondents is concerned, the respondents have submitted the report dated 22nd May, 2018. This report shows that the applicant had made allegation that Sh. B.S.V.G.Sharma, the reporting officer followed instructions from reviewing officer - respondent No.3 (Sh.D.Saha) to grade ACR. The answer to this allegation was as under:
"Response: Shri Telang may please note that Shri B.S.V.G, Sharma took over as Head, Instrumentation Section on 20.9.2004. For year 2004-05, being new to the staff members of Instrumentation Section, Shri Sharma took the opinion and feedback of Shri Dilip Saha. Shri L.R. Mohan, who was assessing and countersigning officer of the Shri Telang earlier to Shri Sharma was on deputation and Shri Saha was the only person who was immediate superior to Shri Sharma and was well aware of the work and performance of the Shri Telang and other personnel of Instrumentation Section. Hence, Shri Telang's allegation that Shri BSVG Sharma followed instruction from reviewing officer i.e. Shri D. Saha is not correct and the assessment of ACR is in order."
72. For the year 2006-07, the report shows that the applicant had made similar allegations in para 3 and the answer was "Consultation was done with immediate superior to get better clarity with regard to the officers' work." Similar question was raised for ACR/APAR of the year 2007-08 and similar answer was given. In 2008-09 63 OA No. 440/2020 also, the same question was raised and the same answer was given. This shows that for all these years the applicant had made allegations that Sh. Sharma wrote the report after taking instructions from Sh. D.Saha. The reports shows that these allegations are admitted but the respondents have brushed aside stating that these reports were written after consulting Sh. D.Saha to get better clarity of the working of the applicant. Sh. Sharma on 24 th March, 2010 has given in writing as under:
"........ During assessment I check with Head, RED for giving the grading and follow his instructions.
As Shri Telang is working for "Solar Power Project", I told him last year to either get transfer to Thermal Hydraulic Section. The same was told to Head, RED."
73. This letter does not show that to get better quality with regard to the work of the applicant, he took instructions from Sh. D.Saha. In this letter, he clearly states that during assessment he checked with Head, RED for giving the grading and followed his instructions. This shows that Sh. B.S.V.G.Sharma did not write the report on his own assessment but on the basis of assessment of Sh. D.Saha. In these circumstances, the reports of the reviewing officer cannot be said to be the report of the 64 OA No. 440/2020 reviewing officer based on his own assessment but it was on the basis of the assessment of the reviewing officer - Sh. D.Saha. Therefore, these remarks cannot be considered for the promotion of the applicant. However, we do not want to dwell much on the aspect of this matter because applicant failed to appear for interview, therefore, his case cannot be considered for promotion to the post of SO-G w.e.f. 1st August, 2008.
74. The applicant is claiming that the APARs for the period 2004-05 to 2008-09 be ignored holding that the interview is not required with all consequential benefits along with arrears of pay and allowances. So far as this aspect of the matter is concerned, we have noticed that Sh. B.S.V.G.Sharma has not himself assessed the applicant but has consulted his superior officer, i.e. reviewing officer of the applicant and has assessed the applicant. Therefore, these remarks need to be ignored. However, the relief of not holding interview cannot be granted because this Tribunal had specifically directed to follow the extant rules and procedure.
65 OA No. 440/2020
75. So far as APARs of the years 2004-05 to 2008-09 have been written by the reporting and reviewing officers who according to applicant have retired. This fact is not disputed by the respondents. Therefore, asking him to make representation, that too, after 15 years is wholly unwarranted.
76. We have held earlier simply because only grading is mentioned, it cannot be said that it amounts to non- communication of the remarks because the applicant is permitted to make a representation in Format-II for getting the APAR. Therefore, it cannot be said that these remarks were not communicated to him. Same thing can be said about APARs of 2010-11, 2011-12, 2012-13, 2018-19, 2019-20 and 2020-21.
77. In this view of the matter, we deem it appropriate to allow the OA partly with following directions:
(1) The order dated 21st May, 2018 is set aside.
(2) The respondents are directed to ignore the APAR for the years 1998-99 and 2000-01 and consider the case of the applicant for antedated promotion w.e.f. 1st August, 2003 without holding re-interview.66 OA No. 440/2020
(3) The report of the committee dated 4th July, 2016 to the extent of ante-dated promotion w.e.f. 1st August, 2003 is set aside.
(4) For considering the applicant for ante-dated promotion, the respondents shall follow the directions of Hon'ble High Court of Delhi in the matter of V.S.Arora (supra) referred to in para 65 of this judgment. If the applicant is found entitled to promotion, he will be entitled to all consequential benefits.
(5) The report of the committee dated 4th July, 2016 to the extent of ante-dated promotion w.e.f. 1st August, 2008 is confirmed.
(6) The report of the committee dated 22nd May, 2018 is confirmed to the extent of the ante-dated promotion w.e.f.
1st August, 2008.
(7) The report of the committee to the extent of antedated promotion w.e.f. 1st August, 2003 is set aside. (8) The order dated 1st June, 2018 is confirmed.
78. OA is, accordingly, partly allowed. No order as to costs.
67 OA No. 440/2020
79. Pending MAs stand disposed of accordingly.
(Rajinder Kashyap) (M.G.Sewlikar) Member (A) Member (J) 'SD'