Central Administrative Tribunal - Bangalore
Dr Sithartha Muthu Vijayan vs M/O Science And Technology on 1 June, 2023
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OA.No.1193/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/01193/2019
ORDER RESERVED ON: 20.04.2023
DATE OF ORDER: 01.06.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Dr. Sithartha Muthu Vijayan
S/o. Mayandi,
Aged about 43 years,
Working as Senior Scientist,
CSIR Fourth Paradigm Institute
(Council of Scientific and Industrial Research),
Wind Tunnel Road,
NAL, Belur campus,
Bengaluru-560 037.
Residing at: SA-047, Scientist Apartment
NAL Staff Quarters,
Old Airport Road, Kodihali,
Bengaluru-560 017. ....Applicant
(By Advocate Shri P. Kamalesan)
Vs.
1.Union of India
Rep. by its Secretary,
Ministry of Science & Technology
Department of Scientific & Industrial
Research, Anusandhan Bhavan,
No.2, Rafi Marg,
New Delhi-110 001.
2. The Director General,
Council of Scientific Industrial Research,
Anusandhan Bhavan,
No.2, Rafi Marg
New Delhi-110 001.
3. Chairman,
CSIR Recruitment & Assessment Board,
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OA.No.1193/2019/CAT/Bangalore Bench
Library Avenue, Pusa,
CSIR Complex,
New Delhi-110 012.
4. The Head,
Council of Scientific and Industrial Research
Fourth Paradigm Institute,
Wind Tunnel Road,
Bangalore - 560 037.
5. Dr. Sridevi Jade,
Chief Scientist
Council of Scientific and Industrial
Research, 4th Paradigm Institute,
Bangalore - 560 037.
6. Dr. M.K. Sharada,
Sr. Pr. Scientist
Council of Scientific and Industrial
Research, Fourth Paradigm Institute,
Bangalore - 560 037.
7. Sri R.P. Thangavelu,
Chief Scientist
CSIR, Fourth Paradigm,
Bangalore - 560 037. ....Respondents
(By Shri K. Ananda, Counsel for Respondents)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash the decision relating to the applicant, as communicated by the 4th Respondent (Head, CSIR Fourth Paradigm Institute, Bangalore) vide OM No.4Pl/05/ (03)/2017 dated 20.3.2019 (Annexure-A8), vide which the applicant has been informed that the Assessment Committee has recommended in the case of the applicant that he is "not yet fit for 3 OA.No.1193/2019/CAT/Bangalore Bench promotion", in the case of his assessment for promotion from Senior Scientist to Principal Scientist for the Assessment year 2015-16.
b) Direct the Respondents to review the assessment for promotion in the case of applicant from Senior Scientist Group IV (3) to Principal Scientist Group IV (4) afresh, and to extend the benefit of promotion to the applicant from the due date with all consequential benefits.
c) Pass any other order or direction that this Tribunal may deem fit and necessary in the facts and circumstances of the present case.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The applicant is currently working as a Senior Scientist, at the Council for Scientific & Industrial Research Fourth Paradigm Institute, Bengaluru from 22.5.2011.
b) The applicant submitted a complaint to the Head CSIR on 14.9.2014, against Dr. Sridevi Jade, Chief Scientist CSIR, Bengaluru and also alleged harassment by Shri. R.P. Thangavelu Chief Scientist, 4th Paradigm Institute, Bangalore and Smt. M.K. Sharada, Principal Scientist, 4th Paradigm Institute, Bangalore (Annexure-Al)
c) The applicant is eligible for promotion on the basis of Flexible Complementing Scheme from Sr. Scientist Group IV (3) to Principal, Scientist Group (IV) (4) after completing 4 years residency period as Scientist Group IV (3) in accordance with the provisions of CSIR 4 OA.No.1193/2019/CAT/Bangalore Bench Scientists & Assessment Promotion Rules 2001, read with amendments to the rules dated 12.3.2007, 20th March 2008 and 1st June 2008.
d) The applicant was awarded the following assessments by Performance Mapping for Scientists in the assessment years indicated below:
2011-12 1.00 (Outstanding)
2012-13 0.9 (Excellent)
2013-14 0.9 (Excellent)
2014-15 0.8 (Very good)
e) The CSIR, reviewed the eligibility of Scientists for Assessment from Junior Scientist up to Principal Scientist for Assessment years 2016-17 & 2017-18. The applicant who was at S.No.4 in the list, was recommended by internal screening committee vide letter dated 11.12.2018 for consideration for assessment for promotion to the grade of Principal Scientist for 2016-17, and 2017-18 in the event of him not being considered for 1 or II chance.
f) The CSIR vide letter No.4PI/05(03)/2017 dated 20.3.2019, communicated to the applicant the results of his assessment for promotion as "not fit for promotion" to the post of Principal Scientist for the assessment year 2015-2016 (Annexure-A8).
g) The CSIR, issued a Circular vide Letter No.4PI/05(05)/2018 dated 7.5.2019, regarding conducting assessment for the year 2016-17. 5
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h) The applicant submitted an appeal against the Assessment Committee Report regarding declaring him as "not fit for promotion" for the assessment year 2015-16 and requested to constitute appropriate committee to review the assessment for the year 2015-16. His contention was that some of the assessment committee members were biased against him, and they had harassed him during the year 2014.
i) The CSIR, constituted empowered committee/collegiums for evaluation of PMS for the year 2018-19. Copy is produced and marked as Annexure-Al1. The applicant submitted a representation to Head, CSIR New Delhi on 2.8.2019 requesting to constitute an unbiased and qualified collegiums and empowerment committee for assessment (Annexure-A12). The CSIR vide Letter dated 5.9.2019, returned the representation of the applicant dated 2.8.2019, stating that the allegations were baseless.
j) The CSIR, vide OM No.4PI/05(05)/2018 dated 12.9.2019 communicated to the applicant that as "to treat the second chance of assessment falling due in the year 2016-17 is forfeited."
k) The applicant relies upon the Judgment of the Hon'ble Madras High Court vide Order dated 22.7.2008, in W.P.No.808/2001 and WMP/1084/2001, which upheld the decision of CAT Madras Bench in OA/395/1998 in quashing the order dated 8.5.1997 and directed the respondents to constitute a fresh Selection Committee. The applicant in that OA made several allegations against the assessment committee member.
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l) The applicant submits that his assessment for the period for eligibility for grant of FSC promotion i.e. from 2011-12, 2012-13, 2013-14, and 2014-15 were within the parameters prescribed in the Recruitment Rules 2001. However, his promotion from Senior Scientist Group IV (3) to Principal Scientist Group IV (4), was denied due to extraneous reasons.
m) The applicant submits that he should have been promoted in the year 2016 since he fulfilled the norms prescribed in the Recruitment Rules. The empowered committee/collegiums meeting was not held upto 2019. The Assessment Committee meeting held on 8.1.2019, informed the applicant that the Committee has recommended him as not "fit for promotion" from Sr. Scientist to Principal Scientist for the assessment year 2015-2016.
n) The applicant has submitted that the Assessment Committee in his case was not constituted as per the Recruitment Rules of 2001 vide para 7.
6. 2. The rules for constituting the committee prescribe as follows:
(i) The Assessment Committee shall be chaired by the Chairperson or one of the persons from the panel of co-
Chairpersons prepared by the Chairperson of the Board and approved by the VP, CSIR to act as Chairperson of the Assessment Committees in his place.
(ii) The Committee will consist of the following members:
i. Two Departmental core committee members.7
OA.No.1193/2019/CAT/Bangalore Bench ii. Two external experts.
iii. Director of the concerned CSIR lab.
o) The applicant submitted an appeal/representation to Director General CSIR, New Delhi on 29.5.2019, against the decision which assessed him as "not fit for promotion" for the assessment period 2015-2016, by the assessment committee and he also brought to the notice of DG, CSIR, that the members of the assessment committee were biased/prejudiced against him, due to his complaint against them for some financial irregularity during the year 2014.
p) The applicant contends that the assessment committee has passed a verdict on the findings of the collegium and empowered committee pertaining to his work report for the period 2011 to 2015 as not correct and has recommended the applicant as "not fit for promotion, for the assessment year 2015-2016", after a gap of 8 years.
q) The head of unit of CSIR, on 5.9.2019 informed the applicant while returning the appeal by stating that there is no basis for such allegations. The appeal to the Director General, CSIR New Delhi was returned by the Head of Unit.
r) The applicant submits that, he was eligible for promotion to next higher grade, under FCS Scheme from 2015-2016, since he had completed 4 years residency period in the grade as prescribed in the recruitment and promotion rules, 2001 and was also awarded the required gradings for the assessment period 2011 to 2015, for promotion to the next higher 8 OA.No.1193/2019/CAT/Bangalore Bench grade (i.e.) Principal Scientist. Denial of promotion, after a period of 4 years, in the year 2019, on the ground that the applicant is "not fit for promotion for the assessment year 2015-2016", is illegal, arbitrary, and unsustainable under law.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The Assessment Promotion of Scientists in CSIR from one Grade to the next higher Grade is governed by the provisions of CSIR Recruitment & Assessment Promotion Rules, 2001 (CSRAP Rules 2001). CSRAP rules 2001 have been framed under the provisions of Bye-Law 11 of CSIR Rules, Regulations and Bye-Laws. The same has been duly approved by the Governing Body of CSIR and the President of CSIR (Hon'ble Prime Minister of India).
b) The CSRAP Rules for Assessment Promotion of the Scientists came into force from 01.01.2001. The Assessment Promotion of scientists of all 38 constituent establishments of CSIR is carried out centrally by the CSIR-Recruitment & Assessment Board (RAB), New Delhi.
c) The Assessment Promotions is made on the basis of Flexible Complementing. The promotion of scientists from one Grade to the next higher Grade is effected in-situ and the post held by him/her stand upgraded automatically as personal to the scientists concerned. On vacation of the post by the scientists, it reverts to the grade in which the posts were earmarked initially (Rule7.1). As per Rule 7.2 of the 9 OA.No.1193/2019/CAT/Bangalore Bench CSRAP Rule, 2001, promotion from one level to next higher Grade shall be made in 2 Stages as follows:
1st Stage: Screening of candidates by Internal Screening Committee to determine their eligibility for assessment.
This is done in the Labs. /Instts./CSIR Hqrs by an Internal Screening Committee constituted in terms of Rule 7.5.2 of the CSIR SRAP Rules, 2001. The marks obtained by the candidates in their yearly Performance Mapping Scheme (PMS) (i.e., the annual performance appraisal) during their residency period in a grade are calculated and averaged out. Thereafter, their eligibility is ascertained with reference to the threshold marks in terms of Rules 7.4 of the CSIR SRAP Rules, 2001. If the average marks obtained in the PMS for the residency period is equal to or more than the threshold marks specified in Rule 7.4 of the CSRAP Rules, then the candidate is recommended by the Internal Screening Committee for next stage of Assessment i.e., to be considered for assessment promotion by the Assessment Committee constituted by RAB 2nd Stage: Assessment of candidates by the Assessment Committee.
This is done by the Assessment constituted in terms of Rule 7.6.2 of the CSRAP Rules, 2001. The Assessment Committee is a high-profile committee consisting of experts in the broad area of the scientists concerned. The area wise Committee is common to all the candidates falling within the subject area. All the eligible candidates recommended by the Internal Screening Committee are assessed for promotion on the basis of Work Report submitted by the scientists containing the details of work done by the scientist concerned during the residency period, duly certified by the Director/Head of the Lab/Institution. In cases of promotions from the Senior Scientists to Principal Scientist, the candidates are also interviewed by the Assessment Committee. The constitution of Assessment Committee 10 OA.No.1193/2019/CAT/Bangalore Bench for promotion up to the level of Senior Principal Scientist (i.e., Group-IV(5) is as under:
i Chairman of RAB Chairman However, the Chairperson RAM can nominate one of the persons from the panel of Co-Chairpersons prepared by the Chairperson, RAB and approved by the VP, CSIR to act as Chairperson of the Assessment Committee.
ii Two Eminent External Experts nominated by the Member Chairperson.
iii Two Departmental Core Members nominated by the Member DG, CSIR iv Director of the concerned Lab/Instt/Head of Division at Member Hqrs or nominee.
v Representative of SC/ST in r/o candidates of that Member community.
The Assessment Committee considers and assesses the work done by the scientists during the residency period on the basis of details given in the Work Report (and interview in case of Senior Scientist to Principal Scientist). After assessing the work done by the scientist, the Committee in its collective wisdom awards marks. If the marks obtained by the candidates is equal to or more than the threshold marks as given in Rule 7.6.5 of CSRAP rules, 2001 as amended vide CSIR Letter No. 7.14(2)/2006-R & A dated 12.03.2007, the Committee recommends the candidates "Fit for promotion". If the marks obtained is falling short by up to two marks for promotion, then the candidate is recommended for "Promotion deferred by one year". If the marks obtained by the candidate is below two marks of threshold marks, then the candidate is considered as "Not Yet fit for Promotion".
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OA.No.1193/2019/CAT/Bangalore Bench The Committee has the discretion to devise its own criteria to determine the suitability and merit of the candidates being considered by it for assessment promotion. The criterion is generally not recorded in the Proceedings of the Assessment/Peer Committee, but the marks obtained by the candidate and the recommendations of the Assessment/Peer Committee is recorded. It may be stated that, once the recommendations of an expert Assessment Committee are approved by the Competent Authority, after following all procedures & provisions of the CSRAP Rules, 2001, there is no provision in CSRAP Rules, 2001 to review/reconsider the Assessment of the candidate. The copy of the said CSRAP Rules, 2001 as amended from time to time is annexed herewith as Annexure-R1.
d) The applicant joined as Scientist Group- IV (2) in the 4th Respondent Institution on 16.11.2006. Thereafter, on 16.04.2007, the applicant was terminated from the services on the ground that, there was a criminal case pending against the applicant and thus, the condition No. 13 (a) of the terms and conditions of offer of appointment has been violated by the applicant. The copies of Offer of Appointment and the O.M. dated 16.04.2007 are herewith produced as Annexure-R2 & R3.
e) The applicant made representation on 26.04.2007 requesting to revoke the termination order and to reinstate him into service. At that point of time, the 5th Respondent Dr Sridevi Jade, who is now Chief Scientist addressed a letter to the then Scientist in Charge of 4th Respondent Institution (earlier, the 4th Respondent Institution was being called CSIR-C-MMACS) requesting to re-instate the applicant and also 12 OA.No.1193/2019/CAT/Bangalore Bench appreciated the integrity and the work of the applicant. The letter dated 23.08.2007 are herewith produced as Annexure-R4
f) Thereafter, on 26.09.2007 the Director of NAL who was holding additional charge of the 4th Respondent Institution at that point of time sent a letter to the 2nd Respondent herein regarding re-instatement of the applicant and after considering all the materials, the 2nd Respondent wrote a letter on 18.10.2007 to the Director, NAL to issue necessary orders for reinstatement of the applicant subject to the condition that, if the applicant is found guilty or penalty has been imposed by the court in Criminal Case No. 444/1999 registered in the Kannivadi Police Station of Dindigul District of Tamil Nadu, action may be taken against him as per Rule 19 of CCS(CCA) Rules, 1965, by the Disciplinary Authority. Thereafter, on 22.10.2007, the order reinstating the applicant into the service was issued subject to certain conditions.
g) The promotion due to the applicant was on 22.05.2011 and the applicant was promoted to the post of Senior Scientist Group-IV (3) w.e.f. 22.05.2011 as per the CSIR CSRAP Rules, 2001 and the same was communicated to the applicant vide O.M. dated 18.03.2013.
h) The applicant was due for Assessment Promotion from the post of Senior Scientist, Group-IV (3) to the post of Principal Scientist, Group- IV(4) w.e.f. 22.05.2015 during the Assessment Year 2015-16. As per the Rule 7.5 of CSIR SRAP Rules, 2001, the Internal Screening Committee had recommended the name of the applicant for the promotion to the post of Principal Scientist, Group-IV (4) and 13 OA.No.1193/2019/CAT/Bangalore Bench thereafter, the Assessment Committee had considered the work reports submitted by the applicant and held the Interview of the applicant on 11.02.2019 and recommended him to be " Not Yet Fit for Promotion"
and the same was communicated to the applicant vide O.M. Dated 20.03.2019.
i) The next due date for Assessment Promotion of the applicant was on 22.05.2016 for the Assessment year 2016-17 (2nd Chance) and accordingly, the 4th Respondent had issued a circular to the applicant and other scientists informing the date of Assessment Meeting and the place. In the Circular, it was made clear that, "the candidates are hereby informed that, his/her absence for the interview without any prior intimation with valid reason to CSIR RAB will be treated as Wilful Dis-interest and his/her chance for Assessment Promotion for the concerned Residency Period is liable to be forfeited."
j) The applicant sent a mail to the 4th Respondent on 19.05.2019 that, he will attend the Assessment Interview only after the disposal of the Appeal filed by him. The Head of the 4th Respondent replied on 29.05.2019 advising the applicant to attend the interview and also made it clear that attending the interview cannot be conditional and if he remains absent, it will in all likelihood, lead to rejection of his case for promotion.
k) Though the interviews were held in IICB, Kolkata on 31.05.2019 by the Assessment Committee, the applicant did not attend the interview. The 3rd Respondent vide letter dated 19/23.07.2019 communicated the 14 OA.No.1193/2019/CAT/Bangalore Bench Assessment Result of the Applicant to the 4th Respondent "As Absent". Thereafter, the 4th Respondent considered Annexure-R5 to R7, and in view of no valid reason given by the applicant for his absence for the interview, either to the 3rd or 4th Respondents, the 4th Respondent treated the chance of the applicant for the Assessment Interview of 2nd Chance falling due during the year 2016-17 as "Forfeited" and communicated the same to the applicant vide O.M. dated 12.09.2019. The copies of the letter dated 19/23.07.2019 and the O.M. dated 12.09.2019 are herewith produced as Annexure-R12 & R13.
l) Thereafter, on 19.09.2019, the applicant submitted a letter to the 3rd Respondent through 4th Respondent requesting to consider his absence to the interview as 'Absence on Medical Grounds' as he was on Medical Leave on 30.05.2019 and 31.05.2019 and to annul the decision of forfeiting his Second Chance due for the Assessment year 2016-17.
m) The 3rd Respondent directed the 4th respondent vide letter dated 23.10.2019 to dispose-off the representation/letter of the applicant at the Institution level. Thereafter, the 4th Respondent carefully considered the request of the applicant and the related documents more particularly, e-mails of the applicant dated 19.05.2019, 30.05.2019 wherein, the applicant had not stated anything about his medical leave, but took altogether a different contention for his non-appearance at the Assessment Interview. Therefore, the 4th Respondent after carefully considering all the documents, rejected the request of the applicant and 15 OA.No.1193/2019/CAT/Bangalore Bench the same was communicated to the applicant vide O.M. dated 02.12.2019.
n) Thereafter, the next Assessment Due date of the applicant was on 22.05.2017 for the Assessment year 2017-18 for the third chance. The applicant again remained absent from the Interview for his Assessment held in CGCRI, Kolkata on 23.09.2019 on medical grounds by enclosing the Medical Certificate issued by Medical Officer, NAL. The same was considered by the 4th Respondent and thereafter, the 4th Respondent treated the said absence on Medical Grounds and the same was communicated to the applicant vide O.M. dated 05.12.2019.
o) Thereafter vide circular dated 14.02.2020 it was informed to the applicant that, the Assessment Interview would again be held on 15.03.2020 at Bengaluru for the Assessment Year 2017-18. In the said Circular, it was clearly mentioned that, if the candidates remain absent without any prior intimation or without any valid reason, the said absence will be treated as wilful dis-interest and their chance for their Assessment Promotion for the concerned residency period will be forfeited. However, a day before the date of Interview, on 14.03.2020, the applicant sent a mail to the 4th Respondent informing that, he was in his hometown and due to ill-health, he was unable to attend the interview and accordingly, for the said interview also, the applicant remained absent. Thereafter, on 02.06.2020, the 4th Respondent issued a Memorandum and sought for explanation for his absence in the interview. The applicant did not reply to the said O.M. and hence, 16 OA.No.1193/2019/CAT/Bangalore Bench reminder O.M. dated 02.07.2020 was issued. After that, the applicant submitted his explanation on 06.07.2020. Since, the explanation submitted by the applicant was not satisfactory, the 3rd chance of Assessment Promotion (Assessment Year 2017-18) was forfeited vide O.M. dated 31.07.2020.
p) As per the Rules, the next due date of Assessment Promotion of the applicant was on 22.05.2018 in the Assessment year 2018-19 for 4th chance. The Internal Screening Committee after considering the case of applicant recommended the name of the applicant for assessment promotion by the Assessment Committee and thereafter, the 4th Respondent vide email dated 6.12.2019 directed the applicant and other eligible candidates to submit their work report for 2018-19 on or before 20.12.2019. In response to the said email, the applicant replied on 20.12.2019 through email to the 4th respondent that, "the said matter is now subjudice (O.A. No. 1193/2019) disabling me to submit the requested work report". Thereafter, he has not submitted his work report as required under the Rules.
q) The 5th chance of Assessment Promotion of the applicant was due on 22.05.2020 for the Assessment Year 2019-20 and the Internal Screening Committee had recommended the name of the applicant for Assessment Promotion by the Assessment Committee in its meeting dated 05.08.2020 and directed the applicant and other eligible scientists to submit their work report on or before 10.08.2020 vide e-mail dated 06.08.2020. However, once again, the applicant sent a reply by his mail 17 OA.No.1193/2019/CAT/Bangalore Bench dated 10.08.2020 stating that, "the said matter is even now subjudice (O.A. No. 1193/2019) disabling me to submit the requested work report". In this Assessment Year also, the applicant failed to submit his work report as required under the Rules.
r) The case of the applicant for his Assessment Promotion from the post of Senior Scientist-Group-IV(3) to the post of Principal Scientist, Group-IV(4) has been considered in accordance with the CSIR SRAP Rules, 2001 and there is no arbitrariness, illegality or bias as alleged in the application by the applicant. In the First chance, the Assessment/Peer Committee had carefully considered the case of the applicant and recommended that, the applicant is "Not yet fit for promotion" and the said decision is in accordance with the said Rules and there is no illegality. The said decision was communicated to the applicant vide O.M. dated 20.03.2019 and now, the applicant being aggrieved by the said decision preferred this Original Application which is liable to be dismissed.
s) The Applicant has not explained as to how the complaint dated 14.09.2014 against Dr. Sridevi Jade is linked to relief sought for in the prayer of this O.A., as the said complaint pertains to the personal allegations levelled by the applicant against senior colleague while discharging official duties. Furthermore, the applicant has made false and baseless allegations in complaints at Annexure-A1 dated 14.09.2014 and 15.10.2014. The said issues were settled with due approval of the Head of the 4th Respondent Institution dated 17.10.2014 18 OA.No.1193/2019/CAT/Bangalore Bench and the applicant had put his signature on 17.10.2014 to the Minutes of Meeting dated 11.09.2014 wherein, the applicant had agreed to exit from SEMP (Solid Earth Modelling Programme) Group to join MSMP (Multiscale Modelling Programme) Group. As a matter of fact, initially, the applicant was working in SEMP Group and the 5th Respondent Dr. Sridevi Jade was the Group Co-Ordinator of SEMP group. Since, the applicant requested to exit from SEMP Group, he was asked to transfer information (TOI) regarding GPS Programme during the discussion with the 5th Respondent. However, the applicant raised a Grievance as per Annexure-A1 regarding exit clauses. Later on, the applicant by accepting the contents of the Meeting dated 11.09.2014 has put his signature on 17.10.2014 along with the 5th Respondent and, therefore, the grievance raised by the applicant at Annexure-A1 was resolved. Later on, the applicant was transferred from SEMP Group to MSMP Group as per his request and therefore, at present, the said issue was resolved. The applicant was also aware that the said issue was resolved, but for reasons best known to him, the applicant has produced the copy of the said complaint without producing the documents in respect of the resolving of the said issues. Thus, it is clear that, the applicant has not approached this Tribunal with clean hands and also supressed the material facts.
t) The applicant had also produced another complaint dated 03.12.2014, 08.12.2014 and 20.05.2015. In his complaint dated 03.12.2014 the applicant has alleged that the Respondents 5 to 7 herein have harassed 19 OA.No.1193/2019/CAT/Bangalore Bench the applicant and also threatened him. On careful perusal of the said complaint, it is clear that, the said alleged incident took place at about 3.45 PM on 03.12.2014, but, the complaint was lodged on 03.12.2014 at 11.00 AM i.e., more than 4 hours prior to the alleged incident. u) The complaints made by the applicant are false and the same were made only with an intention to defame the higher officers including the Respondents 5 to 7 herein. The applicant with an intention to harass the Senior Colleagues has made false, derogatory, defaming and frivolous complaints by e-mail even after putting his signature on 17.10.2014 to the minutes of meeting held between the applicant and Respondent No.5. As a matter of fact, on 03.12.2014 and 08.12.2014 none of the Respondents 5 to 7 have entered into the chamber of the applicant and, therefore, the allegations made in the said complaints are false and frivolous. Moreover, the Respondents 5 to 7 came to know about the said complaints only after they were served with the copies of this O.A. The then competent authority has not taken any action based on the said complaint. The complaints are not genuine and no such incident had taken place.
v) The applicant was due for assessment promotion on completion of (a) 4 years residency Period (1st chance) in Assessment Year 2015-16 (b) 5 years residency period (2nd chance) in Assessment year 2016- 17 and
(c) 6 years residency period (3rd chance) in Assessment year 2017-18. It is pertinent to state here that, the recommendations of the Internal Screening Committee with regard to the applicants 1st chance for 20 OA.No.1193/2019/CAT/Bangalore Bench Assessment Year 2015-16 had already been forwarded to the Recruitment & Assessment Board, New Delhi on 09.06.2017. Pending assessment results of Assessment Year 2015-16, the 4th Respondent on receipt of directions from RAB, New Delhi processed the cases of candidates due for assessment in the Assessment year 2016-17 and 2017-18. The applicant, amongst others, has been recommended by the Internal Screening Committee for (a) Applicant's 2nd chance of Assessment (Assessment Year 2016-17), in case he is not recommended for promotion in his 1st chance (i.e., Assessment Year 2015-16), (b) the applicant's 3rd chance of Assessment (Assessment Year 2017-18) in case he is not recommended for promotion in his 2nd chance (i.e., in Assessment Year 2016-17). Therefore, there is no illegality in issuance of Circular dated 11.12.2018. w) The applicant was considered by an Assessment committee for the Assessment Year 2015-2016, duly constituted as per provisions of Rule 7.5.2 of CSRAP Rules 2001. After assessing the applicant, the Assessment Committee recommended that the applicant is "Not yet Fit for Promotion". The same was conveyed to the applicant vide 4PI OM dated 20.03.2019 after obtaining the approval of Competent Authority. The decision conveyed to the applicant is as per provisions of CSRAP Rules 2001. The applicant has not explained as to how the said alleged irregularities/harassment to him is relevant in his assessment, as he has accepted the APAR grading awarded during the period conveyed for his assessment without any objections.
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x) The Recommendation of the Assessment Committee is not based on individual expert's opinion, but is the combined decision of the expert Committee taken on the basis of their collective wisdom. The applicant has been assessed by the expert Assessment Committee for Assessment Year 2015-16 duly constituted as per the provisions of CSRAP Rules by CSIR-RAB, New Delhi, the 3rd Respondent herein. Thereafter, O.M. No. 4PI/05(03)/2017 dated 20.03.2019 has been issued lawfully by the 4th Respondent after following due process and procedure laid in CSRAP Rules, 2001.
y) Review of Proceedings of Assessment Committee is not permissible as there is no provision to review the Assessment once recommended as per CSRAP Rules 2001. It is submitted that, as per available records, there is no case pending against the applicant pertaining to alleged financial irregularities committed by him or harassment meted out to him during 2014. Therefore, the applicant cannot try to take shelter under the alleged complaints made during the year 2014. Furthermore, as per the Rules 7.6.2, the Director of concerned CSIR Lab/lnstitution/ Head of the Divisions at Head Quarters or his nominee is one of the Member of the Assessment Committee. Therefore, as per the said Rules, for the Assessment Committee for the Assessment Year 2015- 16, the Head of the 4th Respondent was to be a member of the Assessment Committee, but, due to the death of the father of the Head of the 4th Respondent, the Head of 4th Respondent was not able to attend the Assessment Committee Meeting which was scheduled to be held 22 OA.No.1193/2019/CAT/Bangalore Bench on 11.02.2019. Therefore, the Head of the 4th Respondent as per the said rules has nominated the 5th Respondent to be the representative of the head of the 4th Respondent in the Assessment Committee and accordingly, the 5th Respondent who is the only Chief Scientist with domain expertise in the 4th Respondent Institution attended the Assessment Committee Meeting as one of the Member. However, the decision taken in the Committee was the decision made collectively by the Committee of eminent members as per the said Rules and the same is not by individuals. Therefore, the allegations of the applicant that, the 5th Respondent being a member of the Committee was biased against him is totally incorrect and false.
z) The 5th Respondent had submitted a letter dated 23.08.2007 favouring the applicant and requested to reinstate the applicant (Annexure-R3). Therefore, the question of 5th Respondent being biased against the applicant does not arise. Furthermore, the applicant himself admitted that, he was awarded Excellent and Very Good Grades from May 2011 to May 2015 by the 4th Respondent Collegiums and Empowered Committees which itself prove that, there was no bias as the 5th and 7th Respondents were the members of these committees as well. Further, the e-mail dated 12.07.2013 sent by the 5th Respondent to the applicant and other scientists was an official e-mail and the same was for preparing the technical document and Committee for the purchase of CORS, Broad Band seismic instruments, Computer Servers, Software and 4X4 wheel Drive Car for mounting the equipment for kinematic 23 OA.No.1193/2019/CAT/Bangalore Bench GPS survey purpose, which is part of CSIR XII 5 year plan research project sanctioned after several deliberations by the High Level Committee. Therefore, the applicant cannot make false allegations against the 5th Respondent and other senior colleagues. Furthermore, the 5th respondent was not even ware of false complaints filed by the applicant based on her e-mail as the 4th Respondent did not take any action which itself proves that, the allegations made by the applicant against the 5th Respondent are false. Therefore, the allegations of the applicant that, he was forced to facilitate corruption is figment of his imagination. The 5th Respondent (Dr. Sridevi Jade) has an impeccable record of high integrity and ethics in her 30 years of Research career handling several multi Institutional Mega Projects. Furthermore, a 4 wheel drive car was never purchased in the project due to the financial constraints. It is submitted that, the applicant only after knowing the result of his Assessment Promotion made several allegations not only against his senior colleagues, but also against the very Institution i.e. the 4th Respondent. The said allegations are not sustainable in the eyes of law.
4. The applicant filed a rejoinder to the reply filed by the respondents in which he has averred as follows:
a) The applicant should have been promoted from 2016 since he fulfilled the norms prescribed by the recruitment rules. The career advancement was denied to him due to the non-holding of assessment committee meeting up to 2019. The assessment committee which was constituted 24 OA.No.1193/2019/CAT/Bangalore Bench with respondents 5 to 7 as committee members during 2019, did not recommend the applicant for promotion with the remarks "not fit for promotion".
b) The chairman of the assessment committee Dr. SWA Naqvi was a tainted person. He was found guilty of harassing a scientist who had lodged a complaint against him alleging financial irregularity. He was imposed a personal penalty of Rs. 25000 vide CAT Mumbai orders in OA No: 170/2017 and OA No 32/2015.
c) Dr. Sridevi Jade had created authorship issues related to the publication of a research paper which was communicated jointly to the journal by the petitioner and Dr Jade. Based on these complaints filed by the petitioner the then head CSIR - 4PI and director CSIR NAL had protected the petitioner by removing Dr Jade from the position of reporting officer of the petitioner and transferred the petitioner from SEMP research group to MSMP research group vide orders dated 11th of March 2016.
d) As per the CSRAP rules the director of concerned CSIR lab / Institution/ Head of the division at headquarters or his nominee is one of the members of the Assessment Committee. The head of CSIR 4PI is neither director of any lab/Institute, nor head of the division of CSIR headquarters. Hence the head of CSIR 4PI cannot nominate anyone on his behalf.25
OA.No.1193/2019/CAT/Bangalore Bench
e) The Bengaluru bench of Karnataka High Court had stayed the procurement of High-performance computer in a writ petition (WP No:
45646/2013) filed against the decision of the technical committee in which Dr. Vidyadar Mudkavi (presently the head of CSIR 4PI) and Mr. Thangavelu (R4 and R7 of the present case) were members.
f) As per the CSRAP Rule 7.6.6, the next assessment for Scientists who are found not fit for promotion, will be conducted after a gap of 1 year, if they are again recommended by the internal screening committee.
However, in the case of the petitioner, within 3 months of the first interview held on 11th of February 2019, the interview for the second chance was conducted on 30th of May 2019. The third chance interview was conducted within the next 4 months on 23rd of September 2019. The petitioner was pleading for time to appeal his case within the organisation. However, his chances to obtain natural justice was denied.
g) Further, R4, R5, R6, and R7 together awarded zero marks to the petitioner for the year 2019-20 when his request for forming an unbiased committee excluding R5 R6 and R7 is pending before the Director General of CSIR.
h) With regards to the time stamped in the email the same is in UTC.
Hence, 5 hours and 30 minutes should be added to the time printed on the email.
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i) R5 was the Ph.D. supervisor of the petitioner and very supportive till the time the petitioner lodged his complaint in the year 2014. The bias arose after 2014 when the petitioner did not budge to the pressure of R5 to indulge in corrupt practices. Hence, the argument of non-bias on the part of R5, based on a letter given by her in the year 2007 is baseless.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is challenging his assessment made for the assessment year 2015-16 for promotion from Senior Scientist to Principal Scientist. The Assessment Committee after due assessment, has recommended that the applicant is "Not yet fit for Promotion".
7. The applicant has alleged bias against one of the Members of Assessment Committee i.e., the 5th Respondent, Dr. Sridevi Jade. He has alleged that there was a dispute between the applicant and her in the year 2014. He had written a letter on 14.9.2014 addressed to the Head, CSIR 4PI, Bangalore, in which he had questioned the exit process proposed by Dr. Jade in certain research programs. The respondents have clarified in their reply that the issue had been resolved in the year 2014 itself. The applicant had agreed to exit from SEMP group to MSMP group. He had also put his signature on 17.10.2014 to the minutes of the meeting dated 11.9.2014 and the issue apparently stood resolved in the year 2014 itself. 27
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8. The Assessment Committee had interviewed the applicant for the assessment year 2015-16 on 11.2.2019. This is around 4 ½ years after the alleged dispute between him and the 5th respondent. The contention of the applicant that the 5th respondent is biased against him for an event which occurred more than 4 years back, and was held to be treated as closed at that time, does not appear to be plausible, and appears to be an afterthought subsequent to the assessment made by the assessment committee on 11.2.2019.
9. The CSIR Scientists Recruitment & Assessment Promotions Rules, 2001 vide clause 7.6.2 provide for setting up of the Assessment Committee for assessment of Scientists for promotion up to the level of Scientist Group IV(5) as under:
(i) The Assessment Committee shall be chaired by the Chairperson of the Board. However, the Chairperson of the Board can nominate one of the persons from the panel of Co-
Chairpersons prepared by the Chairperson of the Board and approved in the VP, CSIR to act as Chairperson of the assessment committees in his place.
(ii) Two Department - At the appropriate level to be
Core Members nominated by the DG, CSIR.
(iii) Two External - To be nominated by the
Experts Chairperson of the Board
From the panel approved by
The RC of the Lab.
(iv) Director of the concerned CSIR Lab/Instt./Head of the
Division at Hqrs. or his nominee.
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10. The above provisions clearly indicate that the Chairperson of the Board, can nominate one of the persons from the panel of Co-Chairpersons prepared by the Chairperson of the Board and approved in the VP, CSIR, to act as Chairperson of the assessment committee in his place. The Director of the CSIR Lab/Institute can also nominate his representative to be in the committee in his place.
11. The original records in this case, pertaining to the assessment committee meeting/interview held on 11.2.2019 for the applicant were summoned. The Assessment Committee was chaired by Prof. SWA Naqvi. The committee besides Prof. Naqvi and Dr. Jade (fifth respondent as Director's nominee), consisted of four other members including two external experts and two departmental core members. The Director of CSIR 4PI, was supposed to be in the Assessment Committee Meeting as a member. However, he was not present on that day, on account of unfortunate death of his father a few days back, as stated by the respondents in their reply. He had nominated the 5th respondent Dr. Sridevi Jade, Chief Scientist in his place. He was authorized to do so as per the CSRAP rules. The contention of the applicant that he was not authorized to do so since he was not the head of a CSIR Lab is untenable. The CSIR 4th Paradigm Institute is an independent Institute under CSIR and its Head is a member of the Assessment Committee in that capacity. The Rules clearly state that he is authorized to nominate someone else in his place. In this case he was unable to attend the meeting due to bonafide personal reasons (death of his father a few days back) and had nominated Dr. Jade a Chief Scientist in his place.
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12. The members of the assessment committee including the external experts and the departmental core members were all reputed Scientists and experts and expected to be in a position to fairly assess the performance of the applicant without any bias. It would be farfetched to presume that the alleged bias of one member, (Dr. Jade), if any, who attended the meeting, on behalf of the Director of CSIR 4PI as his nominee, would be able to vitiate the entire process of assessment.
13. The applicant has also alleged bias against Respondents No.6 (Smt. M.K. Sharada), Sr. Pr. Scientist and Respondent No: 7 (Sri R.P. Thangavelu, Chief Scientist), respectively. However, a perusal of the records indicate that both these persons were not members of the assessment committee which assessed the applicant.
14. The pleadings further indicate that the candidate had been assessed as "Outstanding", "Excellent" or "Very Good", from May, 2011 to May 2015 by the Collegium and the Empowered Committee. As stated by the respondents in their reply, Respondent 5 and 7 were Members of the Collegium and the Empowered Committee.
15. Keeping all the above points in view, the allegation of bias made by the applicant against the 5th respondent (Dr. Jade) cannot be countenanced.
16. The applicant has also questioned the presence of Prof. Naqvi as Chairperson of the Assessment Board. A perusal of the records indicate that the Chairman, RAB, who is supposed to chair the Assessment Committee Meeting, had already nominated two persons who could represent him in the 30 OA.No.1193/2019/CAT/Bangalore Bench Assessment Committee as Co-Chairpersons. Prof. Naqvi, was one of these two persons. He had therefore chaired this meeting in his capacity as Co- Chairperson after being duly authorized by the Chairman of the Assessment Board. The applicant has also raised allegations against Dr. Naqvi in his rejoinder alleging that he is a tainted person. However, without expressing any opinion on these allegations, there is no plausible reason to presume that Dr. Naqvi would be nursing any bias against the applicant. The applicant's allegations of taint on Dr. Naqvi have no bearing to the subject matter of assessment in the present case.
17. A perusal of the assessment record indicates that the assessment committee had awarded 78% marks to the applicant, whereas the minimum threshold required for promotion was 85%. Accordingly, the Assessment Committee recommended the candidate as "Not yet fit for promotion", which was as per the prescribed norms.
18. The recommendations of the Assessment Committee dated 11.02.2019 have been duly signed and approved by all the members. They have also been subsequently endorsed by the Chairman of RAB under his signature on 26.02.2019.
19. There are several judgements pertaining to the issue of judicial review of an evaluation arrived at by a DPC or any other expert body duly set up under rules.
20. The Hon'ble Supreme Court in the case of UPSC v. L.P. Tiwari (2006) 12 SCC 317, has held that it is now more or less well settled that the evaluation 31 OA.No.1193/2019/CAT/Bangalore Bench made by an expert committee should not be easily interfered with the courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose.
21. In the case of Union of India & ors v. S.P. Nayyar, (2014) 14 SCC 370, it has been held by the Hon'ble Supreme Court as under:
"11. It is settled that High Court under Article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under Article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own, on perusal of the service record of one or the other employee."
22. The Hon'ble Supreme Court held in Dalpat Abasaheb Solunke and Ors. v. Dr. B.S. Mahajan and Ors., AIR 1990 SC 434:
"9. it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc."
23. In the present case, the entire process for assessment for promotion under the FCS as provided by CSIR 2001 Rules have been followed by the respondents. After due consideration, the applicant has not been promoted 32 OA.No.1193/2019/CAT/Bangalore Bench to the post of Principal Scientist since he had been found to be short of the threshold marks as assessed by the Assessment Committee. The committee had, therefore, recommended that the applicant is 'Not yet fit for promotion'. There appears to be no infirmity in the process and the same does not suffer from any procedural error. The allegation of bias made by the applicant against the 5th respondent and others cannot be countenanced for the reasons mentioned in the preceding paras.
24. The contention of the applicant that the next assessment committee meeting for Scientists who are found not fit for promotion, should have been conducted after a gap of 1 year, if they are again recommended by the internal screening committee, may have some merit, provided all these assessment meetings are held within the prescribed time frame. However, it is apparent that the meetings to assess the performance of the scientists were being carried out within a gap of some months in order to remove the existing backlog in conducting these assessment promotions. Ideally, the assessment committee meetings should be held immediately at the end of the concerned year. However, in the case of the petitioner, the interview for the year 2015-16 (first chance) was held on 11th of February 2019. The interview for the second chance for the year 2016-17 was conducted on 31st of May 2019. The third chance interview for the year 2017-18 was conducted on 23rd of September 2019 at Kolkata as well as on 15.03.2020 at Bangalore. Subsequent to the first chance interview held on 11.02.2019, the applicant did not appear or participate in any of the subsequent chances offered to him, and chose to stay away for "medical reasons" as claimed by 33 OA.No.1193/2019/CAT/Bangalore Bench him. These "medical reasons" were not found to be acceptable by the respondents and the second and the third chances were ordered to be forfeited by the respondents. The applicant did not challenge the second chance or the third chance offered to him at that point of time on the grounds that these were being conducted within a short span of time. Hence this contention raised by him at this stage, does not merit any consideration.
25. Keeping the above points in view, the OA lacks merit and deserves to be dismissed.
26. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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