Central Administrative Tribunal - Ernakulam
Senthilkumar K B vs C-Dac on 14 December, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application Nos.180/00661/2017
&
180/00679/17
Friday, this the 14th day of December, 2018
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Hon'ble Mr.Ashish Kalia, Judicial Member
O.A No.180/00661/17
Senthilkumar K.B
S/o.Balakrishnan.N
"THOPPIL", CRA-G 29
Charachira, Kowdiar (PO)
Thiruvananthapuram - 695 003
(Working as Senior Engineer,C-DAC
Trivandrum) ..... Applicant
(By Advocate - Mr.Sukumar Nainam Oommen)
Versus
1 Union of India
(Represented by Secretary to Government of India
Ministry of Electronics & Information Technology
New Delhi - 110 001
2. Centre for Development of Advanced Computing (CDAC)
Represented by its Registrar
University of Pune Campus
Ganeshkhind
Pune - 411 007
3. Executive Director
Centre for Development of Advanced Computing (CDAC)
Vellayambalam,
Thiruvananthapuram - 695 033 ..... Respondents
(By Advocate - Mr. N Anilkumar, SCGSC)
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O .A No. 180/00679/2017
1. Jiju K, S/o Narayanan V.K
Kuttipalakkal House
Pannikode P.O
Mukkam, Kerala - 673 602
2. Brijesh P, S/o Radhakrishnan P
Puthumana House
Saradhamandiram
Kolathara P.O, Calicut - 673 655
3. Girish K, S/o R.V. Krishnan
TC 23/795 Vyasa - 178
Vallachalai Street, Trivandrum - 695 036. ...... Applicants
Vs.
1. Union of India
(Represented by Secretary to Government of India
Ministry of Electronics & Information Technology
New Delhi - 110 001
2. Centre for Development of Advanced Computing (CDAC)
Represented by its Registrar
University of Pune Campus
Ganeshkhind, Pune - 411 007
3. Executive Director
Centre for Development of Advanced Computing (CDAC)
Vellayambalam,
Thiruvananthapuram - 695 033 ..... Respondents
(By Advocate - Mr.N.Anilkumar,SCGSC)
These Original Applications having been heard and reserved for orders
on 10.12.2018, the Tribunal on 14.12.2018 delivered the following:
ORDER
Per: Mr.E.K.Bharat Bhushan, Administrative Member:
Original Application No.180/00661/2017 is filed by 3 Mr.Senthilkumar.K.B against the denial of first promotion due to him on completion of his 4 year residency period in January 2012 and the 2 nd promotion due from January 2016. Original Application No.679/2017 is filed by Mr.Jiju.K, Mr.Birjesh.P and Mr.Girish.K, all Senior Engineers with Centre for Development of Advanced Computing (CDAC) and their prayer in the Original Application is identical to the one in O.A 661/2017. Hence while disposing of the two Original Applications in a single order, we are taking up O.A 661/2017 as lead case.
2. The applicant is an employee of Centre for Development of Advanced Computing (CDAC for short) which is a Society registered under the Societies Registration Act, 1860, for the purpose of undertaking Research and Development in areas of interest aimed at core research in Information Technology in order to emerge as a Research & Development Institution of world status. The applicant was selected as Senior Research Fellow in the said Society in June 2006 and was subsequently appointed as Research Associate in August 2007. In November 2007, he was appointed as Senior Staff Scientist on the basis of an All India interview and was granted pre- revised scale of pay of INR 10,000-325-15200. The appointment was on contract basis for an initial period of five years.
3. The applicant's period of contractual service was first extended by six months and subsequently by 3 years after a review conducted in October 2012. The applicant along with others challenged this extension by filing O.A No.949/2012 before this Tribunal. The contention raised in that Original 4 Application was that their extension ought to have been for a 5 years period and respondents had arbitrarily reduced it to three years. In view of the intervention of this Tribunal through its order dated 5.9.2013, the second and third respondents have extended the contract for five years (Annexure A-3).
4. The applicant submits that he has served CDAC with exemplary efficiency and professionalism. For the period 2008-2012, he has attained the annual performance rating of '10' on a scale of 1 to 10. Copies of his Annual Work Reports (AWR for short) from 2008 to 2016 are at Annexure A-5.
5. The Government of India, in the meanwhile, as per the recommendations of 6th CPC, introduced a 'Modified Flexible Complementing Scheme' (hereinafter referred to as FCS) that provided for 'in situ' promotions to Scientists. The scheme stipulated:
"* The minimum residency period (qualifying period) for applicant is 4 years for promotion in 2012 and further 4 years for promotion in 2016;
* There would be two levels of assessment. The first one would be internal level for screening; the next level would be assessment by external members for promotion;
* The criteria for promotion under 'FCS' covers scientific qualifications; work experience; research and analytical abilities; societal outreach; participation in scientific seminars; and publications.
6. The applicant avers that by November 2011, he had acquired eligibility for consideration for promotion from 2012 under FCS. But this was not 5 granted to him. The second respondent had issued Office Memorandum 20/16 dated 7.11.2016 adopting the Promotion Scheme for Group A S&T Staff (Annexure A-8). The 3rd respondent directed the applicant to submit his AWR as stipulated in the Scheme for screening of eligibility for interview for promotion. Under the given Scheme, the applicant, while submitting his AWR with required documents asserted that he was eligible for his first promotion under the provisions of the Scheme in January 2012 (on the residency period 2008-2011) and for his second promotion in January 2016 (residency period from 2012 to 2015). The documents including AWR that is submitted to the Screening Committee was substantially similar to the Work Report which was considered by the Committee for extension of his contract up to October 2012.
7. The Interview Board constituted for the purpose interviewed the applicant on 22.3.2017. The Board assessed the quality of his AWR to be among 'TOP 10%' . In spite of this and also his 'Outstanding' performance rating for the residency period 2008-2011, he was only marked as '10-33%' and MRP+1, which meant that he would be eligible for promotion after 4 years of residency plus one year. The applicant is at a loss to understand how he came to be downgraded in this fashion despite his excellent performance.
8. The applicant has attempted to seek redressal of his grievance through representations. He alleges that the methodology adopted by the Interview Board at the short interview on 22.3.2017, had been no methodology at all and the respondents followed a flawed procedure. 6
9. Applicant has extracted the following part from the impugned O.M dated 31.7.2017 (Annexure A-1), which was issued by respondent no.2 subsequently and in the light of widespread complaints about the procedure followed:
"2. While implementing the policy in CDAC, the above provisions were either misunderstood or diluted leading to deviations, staff dissatisfaction and representations in substantial numbers. The following deficiencies/deviations in the process followed, in particular were pointed out;
(a) The officers were assessed for promotion from different dates/years in a single sitting of the Interview Board.
(b) Those not recommended for promotion even with MRP+2 were taken further to MRP+3,MRP+4,MRP+5 and so on and recommended/granted promotion, leading to major deviation from the policy.
(c) While assessing the scientific content of the work done by the officers, the Interview Boards did not give due weightage to AWR ratings and juniors with lower grading were granted promotion on a date earlier than that of the senior, thereby creating imbalances in the hierarchy.
(d) In certain cases, the officers who were due to consideration on 1st of July were reviewed on January next, delaying their chance for promotion by six months,
(e) Some of the officers with overall AWR ratings of very good and above were declare unfit by the Interview Boards.
3. Over all, it was observed that the policy was not implemented in the right spirit and there were many gaps in understanding and interpretation of the various provisions..... "
This according to the applicant is an admission that the procedure adopted was deeply flawed. Yet, the steps towards redressal have been a case of too little too late. First and foremost, the respondents have foreclosed any ameliorative steps by their assertion under 4(a) of the same O.M. 7 "All promotions recommended and granted with prescribed MRP may be retained as such and given effect to."
10. It is not known how any remedy would be possible if the MRP awarded was going to remain unchanged. It is further asserted that the excessive reliance on 10 minutes' interview in order to override records of 4 years' exemplary performance is patently illegal. With a performance which has been enumerated as '10/10' and AWR rated 'TOP 10%', to designate the officer for delayed promotion by one year thereby causing further delay in his subsequent promotion which was due in January 2016 is prejudicial and discriminatory.
11. Taking the first applicant's case, it is seen that he was interviewed twice. On the first occasion in March 2017, it had been decided that the applicant was eligible for only MRP+1 which made his promotion effective only from 1.1.2016. This had a cascading effect when the 2 nd Committee met on 11/12 August 2017. The applicants contend that no fair review was done against the injustice perpetrated by assigning him only MRP+1 grading.
12. Brief facts of the case in O.A 180/679/2017 are as follows:
The applicants were also appointed as Staff Scientists on contract for an initial period of five years from December 2007 and were granted in situ promotions in January 2011 under the FCS Scheme. Their contracts have 8 been extended for five years as per the orders of this Tribunal in O.A 950/2012. The applicants are eligible for 'in situ' promotion w.e.f January 2016. The applicants have maintained average of outstanding performance rating for the period 2011 to 2015. Their Annual Work Reports for the period 2011 to 2015 have been rated among 'Top 10%'. Applicants aver that the Board disregarded their Annual Performance Ratings and their Annual Work Reports and recommended their promotions from January 2016 on the basis of their performance in a 10 minute interview held on 22.3.2017. They have represented against the injustice. The core issue herein in the 'vires' of the impugned Office Memorandum in Annexure A-1, which pertains to a second review by the 3rd respondent to determine the eligible date of promotion of the applicants under FCS Scheme for 'in situ' promotions for scientists.
13. By way of reply, the respondents have explained the details of FCS. It is maintained that there are two levels of screening for promotion under this Scheme. The first level being an internal screening and the second level conducted through a review by an Interview Board. The latter Board consists of three expert persons from outside as well. It is maintained that CDAC has no authority over this Interview Board which has powers to take independent decisions and make recommendations. The particular candidates were interviewed as stated in the O.A. The Interview Board after taking all relevant factors into account, recommended MRP+1 promotion which means the effective date of first promotion would be 1.1.2013 (1.1.2014 in the case of the applicants in O.A 679/17). The one-page summary of Interview Board on the performance evaluation is at Annexure 9 A-11.
14. The candidates had been called for promotion review on 10.8.2017 for consideration of promotion at MRP+1 and the Interview Board declared him as 'FIT' for promotion to the next higher level.
15. Shri.Sukumar Nainan Oommen was heard on behalf of the applicants and Shri.N.Anilkumar,SCGSC was heard on behalf of the respondents.
16. Shri.Sukumar Nainan Oommen, learned counsel for the applicant argued at length about various difficulties faced by the applicants on account of the Interview Board having downgraded them to MRP+1. As per FCS, the minimum residency period is indicated as 4 years and the most deserving candidate gets promotion from the first of the year when he is eligible on completion of 4 years. Candidates whose performance is not of that level is considered for promotion one year after completion of the residency period i.e, MRP+1 and lesser qualified candidate, 2 years from the completion of residency period i.e MRP+2. The main contention raised by the applicant in O.A 661/17 is that he has exemplary records as evidenced by his 'above 9' ratings and the rating itself accorded by the Interview Board which gave him 'TOP 10%'. As per the one page assessment sheet of the Interview in March 2017, Annexure A-11, the officer has been recommended for promotion at MRP+1 despite rating on his APAR of '9.18' and an over all professional rating of 'Excellent'. This has been done by downgrading his professional ratings without adequate reasons.
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17. The methodology has been amended through issuance of Annexure A-1 O.M in July 31, 2017. However, the condition that all promotions recommended and granted with prescribed MRP shall remain unchanged make the whole process a sham. The negative attitude of the respondents could be seen in O.M of 8.8.2017 Annexure R-1© also where in answer to the query "Whether an officer recommended for promotion with MRP+1 in the previous assessment can be considered for promotion with MRP+0 in the current exercise?" The answer given is "No" which puts paid to any aspiration the applicant might have. The damage done to the applicant's career could be seen that this one year delay is going to further impact his career progression and the 2 nd promotion due in January 2016 will also be postponed by one more year.
18. The applicant in a statement filed, after the records produced by respondent nos.2 & 3, were scrutinised, has given the gradings of himself as well as the three applicants in O.A 679/2017, showing that they have all been rated as 'Excellent'. For unknown reasons, persons whose APAR scores were far less than their own such as serial No.11, 14 and 16 were rated as outstanding and accorded MRP+0. There is no evidence that any kind of dispassionate view has been taken of APAR ratings.
19. Shri.N.Anilkumar,SCGSC in his reply statement has given details of the FCS introduced for promotion to the Scientific & Technical Officers of Government of India. It is admitted that there were discrepancies when the 11 scheme was initially implemented and these are sought to be corrected through the O.M at Annexure A-1. In so far as the claim of the applicant is concerned, it is maintained that APAR constitutes only one part of the assessment criteria. There had been an interview by a Board constituted with external experts and the said Board took into account the overall quality of a candidate's performance before recommending the specific MRP ratings. From this perspective, there has been no error, deliberate or unintentional, in the assessment made of the applicant's performance.
20. We have considered the issues involved in these Original Applications in detail. The pleadings made by the parties have also been examined. The FCS of the Government of India which had been adopted by the respondent Organisation C-DAC had come in for implementation in 2016 with retrospective effect. The applicant who had completed his residency period by 2011 thereby making himself eligible for promotion in January 2012 is aggrieved by the fact that the Interview Board had decided to delay his promotion to MRP+1. He is further aggrieved that even after realising that the system had been implemented improperly, the corrective O.M issued on July 31, 2017 by its assertion that all promotions recommended and granted with prescribed MRP will remain unchanged, forecloses any remedy that the applicant can aspire for. Looking at his APAR grading, he is scoring more than 9 out of 10 for his professional performance. It appears that it was his interview performance which brought down his score. He has a rightful grievance that his APAR was not given proper consideration by the Interview Board. In fact, in Annexure A-1 O.M it has been admitted that: 12
" 2.(c). While assessing the scientific content of the work done by the officers, the interview Boards did not give due weightage to AWR ratings and juniors with lower gradings were granted promotion on a date earlier than that of the senior, thereby creating imbalances in the hierarchy. "
This pious admission does not seem to have influenced the second Interview Board as well. So also the answer at Annexure R1© which has been issued as an O.M but appears to be more in the nature of an FAQ. It is maintained that as a part of the current exercise which is apparently a reference to future evaluations, no promotion indicated as MRP-1 can be upgraded to MRP-0. If it is so, apparently the utility of such an exercise is open to question.
21. The two Annexures at Annexure A-10 and Annexure A-11 make for interesting reading. The first is a Peer Group Review which is the first level examination as per the Scheme. The grading of the S&T content of the work has been rated as outstanding and he has been placed at 'Top 10%' in assessment of his work relative to his peers. However, in the overall grading he has been put only as '10-33%'. No further information is available in the Peer Group Review as to how the overall grading is significantly below the rest of the conclusions as is apparent. Again at the Interview Committee, he has been rated only 'Excellent' with MRP+1 being recommended. However, his APAR is at a very high rating of 9.18 for the period of residency, it being 13 10/10. Again there is no reason given by the Expert Committee.
22. We have examined the records which were called for from the respondents which also offers no explanation as to how the 2 nd committee done on 11 & 12.8.2017 have considered and disposed of the applicant's case reiterating the earlier assessment of MRP+1. Apparently, they followed the directive in Annexure A-1 O.M which insisted that MRP rating awarded earlier should remain untouched. Clearly there is a need for corrective steps here. The learned counsel for the respondents brought to our attention the judgments which predominantly emphasised that the Tribunals/Courts should not interfere with assessment and conclusions arrived at through Selection Committee. These are the cases of 1992 KHC 677 v. National Institute of Mental Health and Neuro Sciences Dr.K.Kalyana Raman and Ors, 1997 KHC 239 Durga Devi v. State of H.P, 1995 KHC 839 Madan Lal and Others v. State of J. And K. And others etc. We are in complete agreement with the assertion made. However, any such assessments or conclusion should be backed by logical reasoning. Such diligent scrutiny appears to be conspicuous by its absence here. The contentions of the applicants in O.A 679/2017 and the response of the respondents are on the same lines although their numerical gradings are different. After examining all factors we are of the view that the Original Applications have merit on its side.
23. We conclude that there is adequate justification in directing the 14 respondents to hold a special review in the case of the 4 applicants who have moved O.A 661/17 and O.A No.679/17. We set aside O.M No.12/2017of 31.7.2017 of CDAC(Annexure A-1) to the extent it stipulates that promotions recommended and granted with prescribed MRP are to be retained as such as such a stipulation would foreclose further review.
24. The main anomaly which we discern in the two Original Applications is the inconsistent manner in which the Interview Board has considered the cases. The Expert Committee constituted for the purpose for the 2 nd review, while recording the APAR grading, has merely indicated some areas of work they have performed in and then gone on to give a reduced rating as MRP+1. Again in the same sheet after enumerating the performance as 'Top 10%', they have been graded as among 10-33%. Most importantly, there is absolutely no reasoning given which points to any deficiency seen in the performance at the interview. In fact, there is no justification for the opinion that has been expressed as MRP+1 effectively delaying the promotion by one year.
25. We direct that the special review should be conducted by a different team of experts which in turn will give adequate reasons for the conclusions they arrive at. They have to consider the eligibility of the applicants for their first promotion with effect from January 2012 and 2 nd promotion with effect from January 2016. We also use the opportunity to add here that we are not expressing any view on the ultimate eligibility of the candidates for promotion from the dates from which the promotion has been claimed for. 15
26. The Original Application nos.180/661/17 & 180/679/17 are disposed of as above. No costs.
(ASHISH KALIA) (E.K.BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
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List of Annexures
O.A No.180/00679/17
Annexure A1 - True copy of Office memorandum 12/17 dated
31.07.2017 of CDAC (No.CORP:DG:2723)issued by 2 nd Respondent. Annexure A 2 - True Copy of E-Mail letter dated 04.08.2017 of Mohammed T.P, Head HR, with 3rd Respondent.
Annexure A3 - True copy of Office Memorandum No.13/17 dated 08.08.2016 (CORP : DG :2731)issued by the 2nd Respondent. Annexure A4 - True copy of Offer of Appointment of 1 st Applicant to the post of Staff Scientist issued by the 3rd Respondent. Annexure A5 - True copy of order of promotion of Applicants issued by the 3 Respondent.
rd Annexure A6 - True copy of Orders of extension of 1 st Applicant's contract issued by the 3rd Respondent.
Annexure A7 - True copy of Statement of performance Ratings from 2008 to 2013 and rating in review in October 2012. Annexure A8(a), A8(b) & A8(c) - True copy of Annual Work Reports of Applicants from 2011 to 2016.
Annexure A9 - True copy of O.M dated 10.09.2010 issued by DoPT.
Annexure A10 - True copy of O.M. dated 19.09.2016 issued by the 1st Respondent.
Annexure A11 - True copy of O.M. dated 07.11.2016 issued by the 2nd Respondent.
Annexure A 12 - True copy of Applicant's representation dated 12.01.2016.
Annexure A13(a), A13(b) & A13(c) - True copy of Report of the Screening Committee - 'Internal Peer Group Review Report' for the period 2008 to 2016 issued by the 3rd Respondent.
Annexure A14(a), A13(b) & A13(c) - True copy of the result of review held on 22.03.2017 issued by the 3 Respondent.
rd 17 Annexure A 15 - True Copy of Circular No. HR/101/2016 dated 19.04.2017 of CDAC issued by 3rd Respondent in respect of the date of promotion of the Applicants shown therein (s.no 10, 19 & 21 among Grade Based Contract Staff).
Annexure A16 - True copy of Applicant's representation dated 24.04.2017.
Annexure R1(a) - True copy of the e-mail communication dated 20.12.16.
O.A No.180/00661/17 Annexure A1 series - True copy of Office memorandum 12/17 dated 31.07.2017 of CDAC (No.CORP:DG:2723)issued by 2 nd Respondent (Annexure A1(a) and consequential E-Mail letter from Mohammed T.P dated 4.8.2017 'Head HR'issued by 3rd respondent Annexure A1(b). Annexure A 2 - True Copy of Offer of Appointment to the post of Senior Staff Scientist issued to Applicant issued by 3 rd respondent. Annexure A3 - True copy of Orders of extension of applicant's rd contract issued by 3 respondent Annexure A4 - True copy of Statement of Performance Ratings from 2008 to 2013 and rating in review in October 2012. Annexure A5 - True copy of Applicant's Annual WorkReports from 2008 to 2016 Annexure A6 - True copy of O.M dated10.9.2010issued by DoP&T Annexure A7 - True copty of O.M dated19.9.2016 issued by 1strespondent Annexure A8 - True copy of O.M dated 7.11.2016issued by 2 nd respondent Annexure A9 - True copy of applicant's representation dated 14.12.2016 Annexure A10 - True copy of Report of the Screening Committee- Internal Peer Group Review Report for the period 2008 to 2016 isuedby 3 rd respondent Annexure A11 - True copy of the result of review held on rd 22.3.2017issued by 3 respondent 18 Annexure A12 - Circular No.HR/101/2016 dated19.4.2017 ofCDAC in respect of the dateof promotion of the applicant shown therein (s.no.4 among Grade Based Contract Staff) issued by 3rd respondent Annexure A13 - True copy of applicant's representation dated 27.4.2017 Annexure R1(a) - True copy of the MeitY O.M dated 19.9.2016 Annexure R1(b) - True copy of the notice sent to all candidates via email Annexure R1(c) - True copy of the OM No.13 of 2017 dated 8.8.2017 ...