Central Administrative Tribunal - Delhi
Ms. Renuka Tyagi vs Union Of India Through on 9 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.131/2013 Reserved On:24/02/2015 Pronounced On:09.03.2015 Honble Mr. G.George Paracken, Member (J) Ms. Renuka Tyagi Deputy Director Office of the JS (Trg & Chief Administrative Officer) Ministry of Defence, E-Block, DHQ PO, New Delhi-110011. Applicant By Advocate: Shri Padma Kumar S. Versus 1. Union of India through Secretary, Ministry of Defence, South Block, New Delhi-11011. 2. Joint Secretary (Training) & Chief Administrative Officer, Ministry of Defence, E-Block, DHQ PO, New Delhi. 3. Shri Upamanyu Chatterjee Ex.JS (Trg) & CAO Through Office of JS (Trg) and CAO, Ministry of Defence, E-Block, DHQ PO, New Delhi. Respondents By Advocate: Shri Ashok Kumar ORDER
The Applicant has filed this Original Application seeking a direction to declare the below bench mark gradings and other remarks recorded by her Reviewing Officer in her APAR for the period from 01.04.2011 to 19.08.2011 as non-est in the eyes of law and an order to quash and set aside the impugned order of the Senior Reviewing Officer dated 11.06.2012 rejecting her representation to upgrade the aforesaid below bench mark gradings and remarks. She has also sought a further direction to the Respondents to consider her for promotion to the post of Joint Director as if the aforesaid below bench mark gradings in the aforesaid APAR are not in existence.
2. The brief facts of the case are that the third Respondent Shri Upamanyu Chatterjee, Ex-JS(Training) and CAO in the Office of the JS (Training) & CAO, Ministry of Defence was the Applicants Reviewing Officer for the APAR for the period from 01.04.2011 to 19.08.2011. While her Reporting Officer Dr.L.R. Tandekar, Director, SFL assessed her various attributes at 8/8.5, the aforesaid Reviewing Officer assessed her at 5/5.5/6 which is below the bench mark. Again, while the Reporting Officer gave her the overall assessment at 8, equivalent to Very Good, the Reviewing Officer gave her only 5.5 which is equivalent to Good. The bench mark for promotion being Very Good, the aforesaid grading of the Reviewing Officer was considered as Adverse. The relevant part of the Confidential Report containing the assessment made by the Reporting and Reviewing Officer is as under:- 3. Assessment of Work Output (on a scale of 1-10); weightage to this Section would be 40% Attributes Reporting Officer Dr.L.R. Tandlekar, Director, SFL Reviewing Officer Sh. Upamanyu Chatterjeee, JS (Trg.) & CAO Initials of Reviewing Officer
i) Accomplishment of planned work/work allotted as per subjects allotted 8.5 5.5 Sd/-
ii) Quality of work output 8.00 5.5 Sd/-
iii) Analytical ability 8.00 5.5 Sd/-
iv) Accomplishment of exceptional work/unforeseen tasks performed 8.00 5.5 Sd/-
Overall Grading on Work Output 8.00 5.5 Sd/-
4. Assessment of Personal Attributes (on a scale of 1-10); weightage to this Section would be 30% Attributes Reporting Officer Reviewing Officer Initials of Reviewing Officer
i) Attitude of work 8.00 5.5 Sd/-
ii) Sense of responsibility 8.00 5.5 Sd/-
iii) Team spirit 8.05 6 Sd/-
iv) Communication skills 8.05 5 Sd/-
v) Leadership qualities 8.05 5.5 Sd/-
vi) Maintenance of discipline 8.00 6 Sd/-
vii) Capacity to work in time limit 8.00 5 Sd/-
viii) Inter-personal relations 8.00 5.5 Sd/-
Overall Grading on Personal Attributes 8.00 5.5 Sd/-
5. Assessment of Functional Competency (on a scale of 1-10); weightage to this section would be 30%.
Attributes Reporting Officer Reviewing Officer Initials of Reviewing Officer
i) Knowledge of Rules/regulations/procedures in the area of function and ability to apply them correctly 8.05 5.5 Sd/-
ii)Strategic planning ability 8.00 6 Sd/-
iii)Decision making ability 8.00 5 Sd/-
iv)Coordination ability 8.00 6 Sd/-
v) Ability to motivate and develop subordinates and work in a team 8.05 5 Sd/-
vi)Initiative 8.00 5.5 Sd/-
Overall Grading as Functional Competency 8.00 5.5 Sd/-
3. According to the Applicant, the Reviewing Officer has reduced the gradings given by the Reporting Officer purposely to spoil her career. Since she had the apprehension that the Reviewing Officer would spoil her career, she had already made a representation to the Respondents on 18.08.2011 requesting the Defence Secretary to debar Shri Upamanyu Chatterjee from reviewing her APAR as he was biased against her. In the said letter, she has pointed out that Shri Upamanyu Chatterjee has been harassing her for no reason whatsoever. He also got her transferred from her present office of SFL to Naval HQrs. against the transfer/posting rules, when she had only 1.1/2 years tenure at SLF. She has further stated that under instructions from Shri Upamanyu Chatterjee, JS (Trg), the Director (HR) Shri A.P. Mund, Dy. CAO (Pers) Shri T.P. Srivastava, the Deputy Director and Section Officer concerned have even refused to meet her and to tell her the reasons for her transfer. According to her, whole of the office of the JS (Trg) and CAO was acting upon the advice of Shri Upamanyu Chatterjee to harass her mentally and officially. She has also informed the Secretary, Ministry of Defence that if Shri Upamanyu Chatterjee was permitted to write his APAR he will not write the same in good spirit. Further, according to her, as expected, Shri Upamanyu Chatterjee acting as her Reviewing Officer has given her grading much lower than the gradings given by her Reporting Officer in her APAR for the period 01.04.2011 to 19.08.2011. She has also stated that she made a representation against the aforesaid bench mark gradings in the APAR to Shri Anuj Kumar Bishnoi, Additional Secretary (B) on 09.04.2012 stating that on 18.08.2011 itself she had sent a representation to the Defence Secretary to debar Shri Upamanyu Chatterjee as her Reviewing Officer.
4. Further, she has pointed out that the very same Reporting Officer and Reviewing Officers have written her previous APARs for the period 01.04.2010 to 31.03.2011. While the Reporting Officer gave her the overall rating at 7.5 and the Reviewing Officer gave her the rating of 7. Both the aforesaid gradings were equivalent to Very Good and they were above the Bench Mark. The assessment of the work by the Reporting Officer as well as the Reviewing Officer for the aforesaid period is as under:-
3. Assessment of Work Output (on a scale of 1-10); weightage to this Section would be 40% Attributes Reporting Officer Dr.L.R. Tandlekar, Director, SFL Reviewing Officer Sh. Upamanyu Chatterjeee, JS (Trg.) & CAO Initials of Reviewing Officer
i) Accomplishment of planned work/work allotted as per subjects allotted 7.5 7 Sd/-
ii) Quality of work output 7.5 7 Sd/-
iii) Analytical ability 7.5 7 Sd/-
iv) Accomplishment of exceptional work/unforeseen tasks performed 8.00 7.5 Sd/-
Overall Grading on Work Output 7.5 7 Sd/-
4. Assessment of Personal Attributes (on a scale of 1-10); weightage to this Section would be 30% Attributes Reporting Officer Reviewing Officer Initials of Reviewing Officer
i) Attitude of work 7.5 7 Sd/-
ii) Sense of responsibility 8.00 8 Sd/-
iii) Team spirit 7.5 7 Sd/-
iv) Communication skills 7.5 7 Sd/-
v) Leadership qualities 7.5 7 Sd/-
vi) Maintenance of discipline 8.00 7 Sd/-
vii) Capacity to work in time limit 7.00 8 Sd/-
viii) Inter-personal relations 7.5 7 Sd/-
Overall Grading on Personal Attributes 7.5 7 Sd/-
5. Assessment of Functional Competency (on a scale of 1-10); weightage to this section would be 30%.
Attributes Reporting Officer Reviewing Officer Initials of Reviewing Officer
i) Knowledge of Rules/regulations/procedures in the area of function and ability to apply them correctly 7.5 7 Sd/-
ii)Strategic planning ability 7.5 8 Sd/-
iii)Decision making ability 7.5 7 Sd/-
iv)Coordination ability 7.5 7 Sd/-
v) Ability to motivate and develop subordinates and work in a team 7.5 7 Sd/-
vi)Initiative 7.5 7 Sd/-
Overall Grading as Functional Competency 7.5 7 Sd/-
5. The learned counsel for the Applicant has also relied upon an order of this Tribunal in OA No.810/2011 Shri K.K. Bhardwaj VS. U.O.I. and Others decided on 18.11.2011. The operative part of the said order reads as under:-
10. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the applicant has made a good case in support of his claims in the OA, as the orders passed by the respondents suffer from legal infirmities i.e those orders have been passed by incompetent Authority and are non-speaking and non-reasoned orders.
11. Resultantly, the Original Application succeeds with the directions to the respondents to place all the representations of the applicant against adverse remarks before the Competent Authority who should be the Authority superior to the Reviewing Officer and the appropriate orders need to be passed by the Competent Authority within a period of 9 weeks from the date of receipt of a certified copy of this order. No costs.
6. The Respondents have filed their reply denying all the contentions raised by the Applicant. The learned counsel of the Respondents has also pointed out that one of the relief sought by the Applicant in this case is to consider her for promotion to the post of Joint Director as if the whole of the APAR for the year 2011-12 was not in existence and she has already been promoted to the said post vide order dated 01.05.2014. Further, he has relied upon the judgment of the Honble High Court of Punjab and Haryana at Chandigarh in RSA No.2109/1999 - Mohinder Singh Vs. The State of Punjab and Others decided on 01.08.2013 wherein it has been held that the Civil Court cannot sit over the subjective satisfaction of the Reporting Officer regarding adverse remarks. The relevant part of the said judgment reads as under:-
In view of the aforesaid judgments, I find that there is no material on record in respect of violation of law, mala-fides or arbitrariness. Reporting officer has recorded the remarks after observing the performance of the officer. Civil Court cannot sit over the subjective satisfaction of the Reporting Officer regarding adverse remarks. Therefore, the finding that Civil Court will not go into the recording of the adverse remarks, does not warrant any interference in the present second appeal.
In view of the aforesaid facts, I find that no substantial question of law arises for consideration of this Court in the second appeal. Consequently, the present regular second appeal is dismissed.
7. He has also relied upon the order of the co-ordinate Bench of this Tribunal in the case of Rajiv Vs. U.O.I.& Another (OA No.2948/2011) decided on 18.08.2011 wherein it has been held that the applicant has been assessed good in almost all attributes which has been agreed to both by reviewing and counter-signing authorities and in such a matter, there is very little scope for interference by way of judicial review. The relevant part of the said Order is as under:-
3. We have heard the learned counsel representing the applicant and with his assistance examined the records of the case. The learned counsel would contend that the applicant made tremendous efforts in his work and achieved all targets despite constraints, but the reporting and reviewing officers would not assess him correctly, and further that the assessment of the below benchmark grading was without any office memo, warning or any other communication during the relevant period from either reporting, reviewing or counter-signing authorities. Insofar as, the claim of the applicant that he had contributed in achieving the targets is concerned, it would be a case of self-praise, and surely, one cannot be a judge of his own cause. Insofar as, the plea as regards giving warnings or sending communications to the applicant is concerned, we may mention that communications or warnings are sent only when the authorities may find an employee lacking in some regards, be it work and conduct, efficiency, relations with juniors and seniors, integrity etc. Where it may be a case of only below benchmark grading, like the one of good as in the present case, the same has to be only communicated to the employee for him to make a meaningful representation. That such a method was adopted by the respondents is not in dispute. The applicant on conveying below benchmark gradings has made representation, which has since been rejected. We may reproduce the order rejecting the representation of the applicant. The same reads as follows:
2. It is noted that the reporting officer has consistently given Good remarks in almost all attributes which has been agreed by both reviewing and countersigning officers. That the reporting officer had agreed to the self appraisal and had given Good remarks should have led to Very Good grading is not logical and hence not found tenable. The Officer had been graded Good in most of the attributes graded Good by both the reporting/reviewing officer.
3. Keeping in view the above facts, it has been decided by the competent authority that the grading Good recorded in APARs for the periods 01.09.05 to 31.03.06 and 01.04.06 to 30.06.06 need not be interfered with Perusal of the order aforesaid would reveal that the applicant has been assessed good in almost all attributes which has been agreed to both by reviewing and counter-signing authorities. Reporting officer may have agreed to the self-appraisal of the applicant, but assessed the applicant as good. We have gone through the representation made by the applicant, wherein he has made a mention of the remarks given to him as regards different attributes. The same indeed have been assessed by and large good. In fact, as regards interpersonal relations and team work, the remarks that have been made are, Maintained good relations but needs guidance to promote team spirit.
4. In a matter like the one in hand, there is very little scope for interference by way of judicial review. It is not possible for us to substitute our views with that of the reporting, reviewing and counter-signing authorities consistently grading the applicant as only good. The mere fact that the reporting officer agreed with the self appraisal of the applicant, would not automatically mean that the applicant deserved to be graded as very good.
5. Finding no merit in this Original Application, we dismiss the same in limine
8. However, the learned counsel for the Applicant has submitted that unless the below bench mark gradings and remarks for the period 01.04.2011 to 19.08.2011 are expunged, it will be detrimental to the future career of the Applicant.
9. I have heard the learned counsel for the Applicant Shri Padma Kumar S. and the learned counsel for the Respondents Shri Ashok Kumar. As submitted by the learned counsel for the Applicant, the grading of Good recorded in the APAR of the Applicant for the period 01.04.2011 to 19.08.2011 is adverse to her as the bench mark for promotion was Very Good. Since the Respondents themselves have overlooked the aforesaid APAR and promoted the Applicant w.e.f. 01.05.2014 to the post of Joint Director, the below bench mark gradings/remarks contained in the APAR for the period 01.04.2011 to 19.08.2011 have lost their sting. But the fact remains is that the Respondents have not expunged the adverse gradings given in her aforesaid APAR. From the facts narrated by the Applicant which have not been rebutted by the Respondents, especially the Respondent No.3, the Respondent No.3 was quite biased against the Applicant. The Applicant had brought the fact that the said Respondent was biased against her to the notice of the Defence Secretary before he had actually recorded his gradings. Moreover, it is seen that they very same Reviewing Officer had rated her as Very Good in the last APAR and he had never given any notice/warning to the Applicant that her quality of work and other attributes in the APAR have deteriorated in the next year. Hence, it is quite clear that the down grading of the Applicants APAR for the period from 01.04.2011 to 19.08.2011 was out of personal vendetta and malice. The representation made by the Applicant against the aforesaid adverse grading was also not given due consideration. The Senior Reviewing Officer has rejected it without assigning any reason, which is quite arbitrary and illegal.
10. In the above facts and circumstances of the case, I dispose of this OA with the direction to the Respondents that the aforesaid below bench mark gradings for the period 01.04.2011 to 19.08.2011 shall not be treated as adverse for any future purposes. There shall be no order as to costs.
(G.George Paracken) Member(J) Rakesh