Central Administrative Tribunal - Delhi
Sh. Manjit Rai (Employment No.2371) vs Chairman-Cum-Managing Director on 23 May, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.515/2013 Order Reserved on:22.04.2014 Order pronounced on 23.05.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Sh. Manjit Rai (Employment No.2371) S/o Late Sh. Punjab Rai R/o G-66, Naraina Vihar New Delhi. Applicant (By Advocate: Sh. S.K.Dass) Versus Chairman-cum-Managing Director National Building Construction Corporation Ltd. Through Chairman-cum-Managing Director NBCC Ltd. NBCC Bhawan Lodhi Road New Delhi. Sh. K.K.Ghosh (Employment No.2285) Project Manager NBCC Ltd. RE Kolkatta. Sh. Devendra Kumar (Employment No.3989) NBCC Ltd. PMGSY Kurnia (Bihar). . Respondents (By Advocate: Shri Soumyajit Pani) O R D E R By V. Ajay Kumar, Member (J):
The applicant, who is presently working as Project Manager (Civil), filed the present OA, aggrieved by the action of the respondents in not promoting him as Project Manager (Civil) w.e.f. 05.03.2009, under the Performance Related Promotion Scheme 2009 (PRP Scheme, in short).
2. The applicant was initially appointed as Junior Engineer in the respondent-National Building Construction Corporation Limited (in short, NBCC) on 11.12.1981. He was promoted as Assistant Engineer (Civil) Grade-II in the year 1985 and as Resident Engineer in the year 1995. He was reverted from the post of Resident Engineer to Assistant Engineer in the year 1997 and on re-designation of the post of Resident Engineer as Deputy Project Manager, he was re-designated as Deputy Project Manager in the year 2002.
3. The respondents, in pursuance of the PRP Scheme - 2009, promoted various Deputy Project Managers as Project Managers, including some of his juniors, namely, K.K.Ghosh, Devender Kumar, etc, vide Office Order No.123/2009 dated 05.03.2009. Since the respondents have not promoted the applicant, he made representations requesting them to consider his name for promotion to the post of Project Manager (Civil) w.e.f. 05.03.2009, on which date his juniors were promoted to the said post.
4. The OA No.3506/2009, filed by the applicant, questioning his non-inclusion in the list of officers promoted as Project Managers (Civil), was disposed of by an Order dated 18.04.2011 directing the respondents to ensure compliance of the Order of the Honble High Court of Delhi in WP(C) No.1494/2011 wherein it was directed that, if representations are given for upgradation of ACRs, the same shall be considered in proper perspective and on such consideration if the employees become eligible, the benefit of promotion be extended, if the candidate is not otherwise unsuitable.
5. In pursuance of the said Order, the respondents communicated the ACRs for five years, i.e., from 2003-2004 to 2007-2008, which were originally not communicated before considering the case of the applicant for promotion under PRP Scheme - 2009, and gradings given to the applicant therein are as follows:
2003-2004 `C 69.5% 2004-2005 `B - 70% 2005-2006 `B - 81% 2006-2007 `C - 66.5% 2007-2008 `C - 62%
6. It is stated that the grades given in the ACRs, `C stands as Good, `B stands as Very Good and `A stands as Outstanding/Excellent.
7. The applicant submitted representation against the adverse entries of the ACRs and also for upgradation of the same. The respondents constituted an Empowered Committee (EC) to consider all the similar representations from all the employees and to make its recommendation to the competent authority.
8. The said Empowered Committee, after considering the representation(s) of the applicant rejected the claim of the applicant for upgradation of his gradings from `C (Good) to `B (Very Good) or `A (Outstanding). As per the PRP Scheme 2009, which is in the form of Incentive to those performers who obtained `Excellent/Very Good rating in their annual ACRs during the past three years, as the applicant gradings are below the said Benchmark of `B (Very Good), the respondents vide the impugned orders refused to promote him to the post of Project Manager (Civil) under the PRP Scheme-2009. However, the respondents promoted the applicant as Project Manager (Civil), w.e.f. 1.04.2011, under regular Scheme, in the year 2012.
9. The applicant though raised various grounds in his written pleadings, but pressed the following grounds only at the time of oral hearing:
In respect of the ACR for the year 2003-2004 he was given `C grade as he secured 69.5% marks, i.e., less than 70%. The general rule is that if any person secures 0.5% or more than the same, that has to be rounded of to 1 and as a result the applicant, who secured 69.5% has to be given 70% and thereby `B grade. Reliance was placed on a Judgement of the Honble Apex Court in State of U.P. v. Pawan Kumar Tiwari, (2005) 2 SCC 10.
In respect of the ACR for the year 2007-2008, the Reporting Officer given the score of 90%, i.e. `A grade, and the Reviewing and Accepting Authorities given only `C grade. The Accepting Authority though also given the grading of `C, as that of the Reviewing Authority, but left the Column, i.e., Comments in support of the rating, unfilled. Hence, the said incomplete ACR should be ignored. Further, since the Reporting Authority given 90% and `A grade, the Accepting Authority cannot reduce it without recording a valid reason for dilution on the point of rating. Reliance was placed on a Judgement of a Coordinate Bench in OA No.3501/2009 dated 31.01.2011.
10. The respondents vide their detailed counter would submit that the criteria for promotion under the PRP Scheme and the regular promotion policy are completely different and distinct. Under the One-Time PRP Scheme-2009 an employees ACRs for the past 3 years, i.e., 2005-2008 were considered. In case an employee had received the ratings of `A or `B in the said years, such employee was given the promotion. Later, acting on the representations and requests made by number of employees, the criteria were relaxed so that in case any employee happened to receive one `C rating in the said three years period of 2005-2008, the ACRs of two preceding years, i.e. 2003-2005 were considered. If the concerned employee was found to have received `A or `B ratings in the two previous years, i.e., 2003-2005, the one `C rating in the five relevant years, i.e., 2003-2008, would be condoned as a freak case. Since the applicant did not fulfil the aforesaid criteria, the benefit under the PRP Scheme 2009 was not extended to him.
11. Heard Shri S.K.Dass, learned counsel for the applicant and Sh. Soumyajit Pani, learned counsel for the respondents, and have been through the pleadings on record.
12. Shri Soumyajit Pani, the learned counsel for the respondents would submit that the Scheme under which the case of the applicant was considered for promotion to the post of Project Manager, is performance related promotion Scheme, and is in the form of incentive to the performers, the marks and the gradings thereto have to be given highest importance and hence the contention of the applicant that his marks of 69.5% for the year 2003-2004 have to be rounded of to 70% and thereby he should be given `B grade is untenable. He further submits that the Judgement in Pawan Kumar Tiwaris case has no application to the facts of the present case since the issue involved therein was Caste Reservation and the treatment of a fraction of a vacancy. It is further submitted that in respect of the grading given in the ACR for the year 2007-2008, the Reviewing Authority while reducing the overall grading given by the Reporting Officer from `A to `C has categorically mentioned that the same is due to the non-compliance/under performance of the applicant, which was accepted by the Accepting Authority and hence, leaving the Column for comments in support of the rating by the Accepting Authority cannot be a ground for ignoring the grading in the said ACR. Since the Accepting Authority simply accepted the grading given by the Reviewing Authority and as he has not reduced or diluted the grading of the Reviewing Authority, the decision in OA No.3501/2009 has no application to the facts of the present case.
13. As rightly contented by the learned counsel for the respondents that the Judgement in Pawan Kumar Tiwaris case (supra) is under the rule of reservation and hence it has no application to the facts of the present case, more so, when the issue is consideration for promotion under one time Performance Related Promotion Scheme. Equally, since the Accepting Authority has simply accepted the grading and the reason given thereto by the Reviewing Authority, and has not reduced or diluted the same, the decision in OA No.3501/2009 has also no application.
14. One of the guidelines of the PRP Scheme mentioned in the proceedings dated 24/27.06.2011 is as follows:
11. For the purposes of eligibility of the employee to receive the benefit of the PRP Scheme, 2009, the EC will first consider three years i.e. from (FY 2005 FY 2008). Only in case the employee has a C rating in one of the years, the Committee would consider ACR of last two years, i.e. FY 2003 FY 2005.
15. Admittedly, the applicant got two `C gradings in his ACRs for the past three years, i.e., from 2005 to 2008. As per the aforesaid guidelines, the ACRs of 2003-2005 were required to be considered, in case if an employee got one `C rating, for the years 2005-2008. Since the applicant got two `C gradings for the years 2005-2008, his ACRs for the years 2003-2005 need not be considered at all.
16. Further, the applicant failed to raise any valid ground, in respect of the grading of `C given to him in his ACR for the year 2006-2007 and as a result, he would not be eligible for promotion under the PRP Scheme.
17. In view of the above, even if the gradings for the years 2003-2004 and 2007-2008 are upgraded from `C to `B or `A, still the `C grading awarded to him for the year 2006-2007 will make him ineligible for consideration for promotion under PRP Scheme.
18. In the circumstances and for the aforesaid reasons, the OA is devoid of any merit and accordingly, the same is dismissed. No order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/