Central Administrative Tribunal - Jodhpur
Subhas Srivastava vs Indian Council Of Agricultural ... on 2 July, 2024
1
Reportable
290/00149/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00149/2014
Reserved on : 29.05.2024
Date of Pronouncement: 02.07.2024
CORAM
HON'BLE Mr JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE Dr AMIT SAHAI, MEMBER (A)
Subhash Srivastava S/o Sh. B.B.L. Srivastava, aged about 55
years, R/o Near Ramdev Tent House, Rani Bazar, Bikaner (Raj.).
Presently working on the post of T-3 in the office of Central
Sheep and Wool Research Institute, Bikaner, Rajasthan.
......Applicant
By Advocate : Mr S.P. Singh.
Versus
1. Indian Council of Agriculture Research, through its
Secretary, Krishi Bhawan, New Delhi.
2. The Director, Central Sheep and Wool Research Institute,
Avikanagar, District Tonk, Rajasthan.
3. Chief/Senior Administrative Officer, Central Sheep and
Wool Research Institute, Avikanagar, District Tonk,
Rajasthan.
......Respondents
By Advocate : Mr Salil Trivedi.
2
Reportable
290/00149/2014
ORDER
Per : Hon'ble Mr Justice Rameshwar Vyas Being aggrieved by not acceding to his request for review DPC for the post of T-4 & T-5, the applicant has preferred this OA to quash and set aside memorandum dated 17/19.05.2008, 06/07.05.2010, 11/12.01.2011 & 10.10.2013 (Annex. A/1 to A/5) and to convene review DPC for the post of T-4 w.e.f. 01.01.2006 & for the post of T-5 w.e.f. 01.01.2011 with consequential benefits.
2. The facts necessary to adjudicate this OA are as under:-
"2.1 The applicant after selection was appointed on the post of Lab Technician T-1 in the pay scale of Rs 975-1540/- vide office order dated 11.04.1988 (Annex. A/6). The applicant's services were governed by Indian Council of Agriculture Research (ICAR) Rules, 1975 [hereinafter referred to as Rules of 1975]. According to Rule 6-I of the Rules of 1975, there is a system of merit promotion from one grade to the next higher grade irrespective of occurrence of vacancy in the higher grade or grant of advance increments in the same grade on the basis of assessment of performance. Vide office order dated 30.12.1994 (Annex. A/7), the applicant along with four other officials was granted advance increment w.e.f. 01.01.1994. Thereafter, vide office order dated 27.09.1996 (Annex. A/8), the applicant was granted promotion from the post of T-1 to T-2 w.e.f. 01.01.1995. Thereafter, vide office order dated 21/22.06.2001 (Annex. A/9), the applicant was 3 Reportable 290/00149/2014 granted two advance increments in the pay scale of Rs 4000- 6000 w.e.f. 01.01.2000 and vide office order dated 22.06.2002 (Annex. A/10), granted merit promotion from the post of T-2 to T-3 in the pay scale of Rs 4500-7000 w.e.f. 01.01.2001.
2.2 The next assessment of the applicant was due w.e.f. 01.01.2006. Vide memorandum dated 17.05.2008 (Annex. A/1), the applicant was informed that he was not found suitable for the next higher grade T-4 for the assessment period 01.01.2001 to 31.12.2005 as he did not meet the prescribed criteria for assessment merit promotion. Therefore, the supplementary assessment form for further re- assessment for the period from 01.01.2006 to 31.12.2006 was directed to be filled up by the applicant.
2.3 It is the case of the applicant that during the entire period from 01.01.2001 to 31.05.2005, he was never communicated with any adverse or low grading. The applicant was communicated the ACRs for the period 2008-09 and 2009-2010 vide letter dated 18.10.2010 (Annex. A/13). Prior to it, no ACAR/APAR was communicated to him.
2.4 The applicant made representation to disclose the reasons for not finding him suitable for promotion and also prayed to provide him benchmark criteria. Vide another representation dated 20.11.2010 (Annex. A/15) the applicant prayed to review the ACRs and award overall numerical grading 6 or above. His request was not acceded to vide memorandum dated 15.07.2011 (Annex. A/11). Thereafter, 4 Reportable 290/00149/2014 vide memorandum dated 19.07.2011 (Annex. A/4), the applicant was informed that assessment for the period 01.01.2008 to 31.12.2008 was placed before the assessment committee for consideration but the committee did not recommend him for promotion to next higher grade T-4 w.e.f. 01.01.2009. It is the grievance of the applicant that he was never supplied ACRs for the relevant period and also not disclosed the reasons for not granting him promotion. Vide representation dated 07.09.2011 (Annex. A/17), the applicant prayed to comply with the directions issued by the DoPT.
2.5 When the applicant received no response, he again made a representation dated 09.07.21012 (Annex. A/18) with request to review his case favourably and accord him promotion from retrospective effect, i.e. w.e.f. 01.01.2006. Thereafter, the applicant made a representation dated 14.11.2013 (Annex. A/20) and another representation dated 09.04.2014 (Annex. A/12) but of no avail. Vide office note dated 10.10.2013 (Annex. A/5), the applicant was informed regarding the appraisal period 01.01.2005 to 31.12.2009 that his case was examined sympathetically for review DPC but review DPC was not possible in view of available provisions for the same.
2.6 Being aggrieved by not acceding to the request made by him, the applicant has filed this OA with prayer to quash and set aside various memorandum, i.e. Annex. A/1 to Annex. A/4, informing the applicant that he has not been found 5 Reportable 290/00149/2014 suitable for next higher grade, i.e. T-4 and T-5 for various assessment periods ranging from 01.01.2006 to 31.12.2008.
2.7 In reply filed by the respondents, the respondents averred that Council introduced a numerically rating system vide letter dated 26.12.2005. The case of the applicant for promotion was placed before the assessment committee for consideration of his merit promotion w.e.f. 01.01.2006 and the assessment committee assessed the work report submitted by the applicant along with five yearly assessment form and annual confidential reports of the preceding five years and not recommended the applicant for merit promotion for the next higher grade T-4 w.e.f. 01.01.2006 due to not obtaining the minimum prescribed 67% marks by the applicant. The respondents also annexed copy of the Council's letter dated 26.12.2005. The supplementary assessment case of the applicant for the period from 01.01.2006 to 31.12.2006 and from 01.01.2007 to 31.12.2007 and 01.01.2008 to 31.12.2008 was placed before assessment committee for consideration of his merit promotion but the assessment committee did not recommend the applicant for the next higher grade T-4 on account of not obtaining minimum prescribed marks. The scope of review of DPC is to rectify certain unintentional mistakes but in the case of the applicant, no error was found in the procedure adopted. In compliance with the Council's letter dated 23.11.2012 (Annex. A/5), the below benchmark ACRs/APARs have been communicated to the applicant vide note dated 10.10.2013 (Annex. A/26) before placing the assessment case of the 6 Reportable 290/00149/2014 applicant before the committee. Thereafter, on the request of the applicant, the ACRs of the applicant for the relevant period have been examined but the competent authority has not agreed for any upgradation of APAR/ACRs which has already been informed to the applicant vide note dated
03.06.2014 (Annex. R/2). Refuting the claim of the applicant, the respondents have prayed to dismiss the OA.
2.8 The applicant filed rejoinder which has been responded to by the respondents by way of filing additional reply.
3. Heard learned counsel for the parties and perused the material available on record.
4. It is contended by learned counsel for the applicant that vide communication dated 26.12.2005 (Annex. R/1) in regard to career advancement of technical employees, ICAR after reviewing the benchmark for assessment promotion circulated some guidelines for merit promotion. As per these revised guidelines, the ACRs relevant for the assessment period are to be numerically rated on the basis of final grading as accepted/reviewed by the authority in the following manner:
i) Each Outstanding Report - 80 marks ii) Each Very Good Report - 60 marks iii) Each Good Report - 40 marks iv) Each Average Report - 20 marks
As per para 4 of this letter, for promotion from T-3 to T-4 grade and T-4 to T-5 grade, 67% ACR/APAR grading is required. Before issuance of these guidelines, the required 7 Reportable 290/00149/2014 ACR grading for promotion from T-3 to T-4 was "Good", which is now equivalent to 40% marks. It is contended by him that before issuance of guidelines dated 26.12.2005, the applicant's claim for promotion could not have been denied on the ground of below benchmark ACR grading. Learned counsel contended that benchmarks for promotion up to the grade of T-5 were consistently "Good", which the applicant was possessing. His assessment promotion from the grade of T-3 to T-4 was due w.e.f. 01.01.2006 for which the applicant possesses the relevant ACRs benchmark. The applicant has been denied promotion on the ground that he was not found suitable for the assessment period 01.01.2001 to 31.12.2005 for which the applicant was never communicated any remarks by the reporting and reviewing authority adversely affecting his future career prospects. It is submitted that introduction of new guidelines cannot be applied in such a manner as to violate the basic principles of service jurisprudence which says that uncommunicated adverse ACRs cannot be acted upon while considering his case for assessment promotion. In support of his contentions, learned counsel for the applicant has relied upon the following judgments:
1. Dev Dutt vs Union of India & Ors, Civil Appeal No. 7631 of 2002 decided on 12 May, 2008.
2. Sukhdev Singh vs. Union of India & Ors, 2013 (9) SCC 566.
3. Rukhsana Shaheen Khan vs Union of India, Civil Appeal No. 32 of 2013 decided on 28 August, 2018.
4. Smt. Nutan Arvind vs Union of India & Ors, 1996 SCC (2) 488.8
Reportable 290/00149/2014
5. R.K. Jibanlata Devi vs High Court of Manipur through its Registrar General and others, Hon'ble Supreme Court Writ Petition (Civil) No. 1209 of 2021 decided on February 24, 2023.
5. On the other hand, learned counsel for the respondents submitted that after introduction of new guidelines, "Good" grading ACRs were converted into numerically rated ACRs valued to 40%, which is below the bench mark of 67% prescribed for assessment promotion from the post of T-3 to T-4. The request of the applicant to upgrade his grading has been rejected vide memorandum dated 03.06.2013 (Annex. R/2). As such, the applicant having not been found suitable for promotion to the next higher grade due to not fulfilling requisite benchmark criteria for promotion, was rightly denied assessment promotion by the respondents. Learned counsel contended that as per para 7 of the guidelines dated 26.12.2005 (Annex. R/1), these guidelines have become applicable to cases of assessment which become due on 1st Jan, 2006 and thereafter.
6. Having regard to the submissions made by learned counsel for the parties and material available on record, it emerges that the applicant was denied promotion on account of not achieving benchmark for the assessment period 01.01.2001 to 31.12.2005. As per para 3 (v) of communication dated 27.03.2001 (Annex. A/3), for assessment cases up to Grade T-5, "The benchmark remains consistently 3 Good ACRs." Record reveals that the applicant 9 Reportable 290/00149/2014 was denied promotion despite having "Good" ACRs for the reason that he failed to achieve 67% marks under the new guidelines circulated vide communication dated 26.12.2005 (Annex. R/1). Now, the question arises whether new guidelines can be introduced in such a manner that ACRs with "Good" grading which was benchmark for assessment promotion from T-3 to T-5 for the period 01.01.2001 to 31.12.2005 can be treated adverse to the applicant though not communicated as such.
For deciding the above question, it would be beneficial to go through some of the judgments relied upon by learned counsel for the applicant.
In the matter of Dev Dutt vs Union of India & Ors, Civil Appeal No. 7631 of 2002 decided on 12 May, 2008, Hon'ble Supreme Court observed 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."
In the matter of Sukhdev Singh vs. Union of India & Ors, 2013 (9) SCC 566, Hon'ble Supreme Court observed as under :
10Reportable 290/00149/2014 "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.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others and K.M. Mishra vs. Central Bank of India and others and the other decisions of this Court taking a contrary view are declared to be not laying down a good law."
In the matter of Rukhsana Shaheen Khan vs Union of India, Civil Appeal No. 32 of 2013 decided on 28 August, 2018, the decision in the matter of Sukhdev Singh (supra) was endorsed.
In the matter of Smt. Nutan Arvind vs Union of India & Ors, 1996 SCC (2) 488, Hon'ble Supreme Court approved the judgment rendered in Union of India etc. vs Majji Jangamayya etc., (1977) 2 SCR 28 observing that On consideration of the above instructions, this Court had held thus :
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar, Grade It will be according to the new rules on the zonal basis and not on the Statewide basis and, therefore, there was no question of challenging the new rules. But the question is of filing the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts 11 Reportable 290/00149/2014 which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
In the matter of R.K. Jibanlata Devi vs High Court of Manipur through its Registrar General and others, Writ Petition (Civil) No. 1209 of 2021 decided on February 24, 2023, Hon'ble Supreme Court held that Rules which were prevailing at the time when the DPC met were rightly considered. Considering the arguments advanced by the petitioner therein, the Hon'ble Supreme Court held that uncommunicated ACR grading of "Good" for the year 2016-17 could not be relied upon for considering the promotion.
7. In view of the above settled proposition of law, it emerges that uncommunicated ACRs cannot be made ground to deny consideration for promotion to an employee. In the present matter, it is an admitted position that the applicant was denied promotion from T-3 to T-4 on the ground that ACRs for the period 01.01.2001 to 31.12.2005(not communicated) were not meeting out merit criteria as per modified guidelines dated 26.12.2005 (Annex. R/1). Modification in the guidelines for promotion converted the grading system to a numerically rated system , in our view, cannot be applied in a manner violating the basic principles of service jurisprudence that uncommunicated ACRs cannot be used against the employee. After introduction of numerically rated system by the respondents required "Good" ACRs were made equivalent to only 40 %rating not enough for promotion whereas in earlier system, having "Good" grading was 12 Reportable 290/00149/2014 benchmark for promotion and was not needed to be communicated by the respondents.
In our opinion, had the applicant been communicated his ACRs with "good" remarks, which became adverse after introduction of guidelines dated 26.12.2005 applicable from 01.01.2006, he would have made efforts to improve his working and also could have made representation . Without knowing the nature of his grading/remarks against him, the applicant had no chance to improve his working in the future. Keeping in mind law laid down by Hon'ble Supreme Court on the issue involved in the present matter, the action on the part of the respondent in finding the applicant unfit for promotion as he did not achieve numerical grading for the period prior to introduction of numerical grading system cannot be sustained.
8. In view of the above, the impugned memorandum dated 17.05.2008 (Annex. A/1) is quashed and set aside. The respondents are directed to convene review DPC which shall consider the name of the applicant for promotion to the post of T-3 to T-4 on the basis of criteria prevailing prior to introduction of numerical grading system w.e.f 01.01.2006. and grant him promotion, if he is otherwise found eligible, with consequential benefits including promotion to T-5.
The respondents shall complete the exercise within a period of six months from the date of receipt of a copy of this order.
13Reportable 290/00149/2014
9. OA is thus allowed in terms of above directions with no orders as to costs.
(Amit Sahai) (Rameshwar Vyas)
MEMBER (A) MEMBER (J)
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