Central Administrative Tribunal - Ernakulam
K.Sivanandan vs Centre For Materials For Electronics ... on 7 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
T.A.No.1/11
Tuesday this the 7th day of February 2012
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Mr.K GEORGE JOSEPH, ADMINISTRATIVE MEMBER
K.Sivanandan,
Junior Technical Assistant (ST-III),
Centre for Materials for Electronics Technology (C-MET),
Athani, Thrissur - 680 771. ...Applicant
(Party-in-person)
V e r s u s
1. Centre for Materials for Electronics Technology(C-MET),
Panchawati, Off Pashan Road,
Pune - 411 008,
Rep. by its Executive Director.
2. The Head of Division,
Electronics Components and Materials Development Division,
Department of Information Technology,
Ministry of Communication and Information Technology,
Electronics Niketan, 6.C.G.O Complex,
Lodhi Road, New Delhi - 110 003.
3. The Registrar,
Centre for Materials for Electronics Technology (C-MET),
Panchawati, Off Pashan Road,
Pune - 411 008.
4. The Director,
Centre for Materials for Electronics Technology (C-MET),
Athani, Thrissur - 680 771. ...Respondents
(By Advocate Mr A Sudhi Vasudevan)
This application having been heard on 18th January 2012 this
Tribunal on 7th February 2012 delivered the following :-
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER This is a transferred application. The applicant, working as Junior Technical Assistant (ST III) at the material point of time (2008) filed W.P. (C) No.14366 of 2008 before the High Court of Kerala, praying for the following reliefs/ Additional reliefs :-
(i) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to consider the petitioner's claim for in-situ promotion from the grade of ST-III to ST-IV under the Person Oriented Promotion Policy, forthwith.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to call the petitioner for the interview scheduled to be held on 14th May, 2008 at C-MET, Pune, in connection with in-situ promotion from the grade of ST-III to ST-IV, under the Person Oriented Promotion Policy.
(iii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 2nd respondent to consider Exhibit P1 and P2 representation submitted by the petitioner, forthwith.
(iv) Issue such other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
2. As during the pendency of the writ petition, the respondents have informed the applicant through their communication dated 14-05-2008 vide Exhibit P 8 communication stating that the screening committee found the petitioner not sufficiently graded in the ACR during the period under review and therefore, he is not qualified to be called for interview as per Policy Manual, an amendment application to the writ petition was filed with the following additional reliefs sought :-
(vi) Call for the records leading to Exhibit P-8 communication issued by the 3rd respondent and issue a writ of certiorari or any other appropriate writ, order or direction quashing the same.
(vii) Declare that the petitioner is eligible for in-situ promotion from the grade of ST-III to ST-IV, under the Person Oriented Promotion Policy.
(viii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to grant in-
situ promotion to the petitioner from the grade of ST-III to ST- IV, under the Person Oriented Promotion Policy, forthwith.
3. As an interim relief, the applicant had prayed for the following in the Writ Petition :-
For the reasons stated in the above writ petition and the accompanying affidavit, it is most humbly prayed that, this Hon'ble Court may be pleased to direct respondents 1 to 3 to permit the petitioner to provisionally appear for the interview scheduled to be held at C-MET, Pune, on 14th May 2008, in connection with in-situ promotion from the grade of ST-III to ST-IV, under the Person Oriented Promotion Policy, pending disposal of the above writ petition.
4. On 9th May, 2008, the High Court had passed the following order :-
" Having heard learned counsel for the petitioner and the learned Standing counsel, and having perused the materials available on record, I am satisfied that in the interest of justice, it will be appropriate that respondents 1 to 3 are directed to invite the petitioner also for the interview scheduled to be held on May 14, 2008 at Pune. Ordered accordingly. Petitioner shall be present for the interview before the Board on that day. It is made clear that this order is only provisional and subject to the result of the Writ Petition. It is also made clear that this interim order shall not confer any benefit on the petitioner to claim promotion, merely for the reason that he has been given an opportunity to be interviewed."
5. The applicant participated in the interview as scheduled. Findings of the selection committee were kept in a sealed cover.
6. For the next year, the applicant was asked to appear for the interview for in situ promotion from Grade ST III to the Grade of ST IV on 26-05-2009 at Pune and on his participation, he was granted promotion w.e.f. 28-05-2009, vide order dated 10-06-2009.
7. The grounds of challenge of Exhibit P-8 and claim for promotion as contained in the relief column include the following :-
(a) No adverse remarks have been communicated to the applicant.
(b) Many of the achievements of the applicants have been overlooked by the respondents while assessing his performance.
(c) Similarly situated others have been called for interview and afforded promotion.
(d) The main reason for depriving the applicant of his entitled in-situ promotion is that he had earlier filed WP No.23955 of 2001 regarding medical reimbursement which was allowed by the High Court by its judgment dated 07-08-2007 vide Exhibit P-3. As the same was not complied with, contempt petition No.203/2008 was filed and during the pendency of the same, Exhibit P-8 communication dated 14-05-2008 was issued.
8. Respondents have contested the O.A. According to them, as per Policy Manual of C-MET, Member Technical Support Staff (ST) will be given person oriented promotion. Only the employees who are having merit as adjudged from the annual performance reports productivity linked performance and grade test/interview shall be considered for promotion. An employee is expected to have higher performance as he moves higher grades. The employee, who has completed minimum residency period in a particular scale of pay will be first screened by a committee appointed by the Executive Director on the basis of grading in the Annual Confidential Report for considering for promotion. A trade certificate holder, holding the grade of ST III requires five years residence period for considering for initial screening. The applicant has been holding the grade of ST III since 01-07-2001. As per Policy Manual, an employee who has spent six years in the grade requires minimum 80% of mark in the ACR grading in the last five years only be screened in to be eligible for interview. ACR grading shall be assessed on a 10 point scale giving 10 mark for 'outstanding', 8 marks for 'very good' 6 mark for 'good', 4 mark for 'average' and 0 mark for 'poor'. The name of the applicant was referred for screening and he had secured only 68% marks whereas the minimum percentage based on ACR for eligibility for interview for promotion from ST III to ST IV is 80% linked to six years of service in the grade of ST III. The initial condition not having been fulfilled by the applicant, he was not called for the interview. The reason given by the applicant for his not having been called for interview is totally wrong.
9. The applicant has filed his rejoinder in which he has elaborated his achievements, project work etc.,
10. The applicant, who had argued in person, by filing written argument, has submitted that non communication of the entry in the ACR is arbitrary and hence violative of Article 14 of the Constitution of India. He has relied upon the decision of the Apex Court in the case of Civil Appeal No.6227 of 2008 decided on 22-10-2008 which states that un-communicated remarks below benchmark should be ignored and promotion to be ordered with retrospective effect. Further, the prescription of 80% had been made in May 2005 and written test is an inseparable part of the 3 distinct stages of the initial screening as per clause 11.2.2.3.2 of the amended promotion policy. The respondents cannot deviate from the mandatory stages of initial screening. Thus, non conducting of the written test vitiates the entire process of promotion. If so, the promotion policy as in extant prior to 2005 would spring into play in which event, the applicant is entitled to promotion as the prescription then was only 60% Marks in ACR.
11. Respondents, on their part, filed their written arguments and stated that in so far as ACR gradings are concerned, out of ten years, the applicant could score only on two years the grading of outstanding and thus, it was not on the basis of a lone year's ACR that he was not declared qualified in the screening. The applicant is thus not entitled to the benefits of the judgment of the Hon'ble Supreme Court. Assuming that the judgment would apply to the facts of the case, the applicant can only seek for a communication of the entries in question in the ACR within a specified period and on being communicated, the applicant could make a representation if he so chooses, against the said entries, so that a decision could be taken by the Department on such representation on the question of upgradation of the entries. As regards non conducting of the written test, the respondents have stated that since the syllabus for written test was not finalized the mark allotted to written test part was attached to the interview part. This would not adversely affect any particular employee as it is common to all employees. The applicant had been promoted in the year 2009.
12. Written arguments were considered and the pleadings perused. Admittedly, screening is the first process of selection and the same rests upon the gradings as per the ACRs for specified number of years. The requisite is 80% in ACR, which means the grading shall be 'Very Good' for all the six years or 3 'Outstanding' plus three 'good' 4 'outstanding', 1 'very good' plus one of any grading. In other words, where the performance falls below the above gradings, the individual fails to enter into the second stage of selection process. Here exactly is the decision of the Apex Court in the case of 'Dev Dutt' (2008) 8 SCC 725 that becomes fully relevant. Inter alia, the Apex Court in that decision had held as under :-
15. If we hold that only "poor" entry is to be communicated, the consequences may be that persons getting "fair", "average", "good" or "very good" entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).
13. Following the judgment in the case of Dev Dutt (supra), subsequently, in the case of Abhjit Ghosh Dastidar vs Union of India (2009) 16 SCC 146, the Apex Court has held as under :-
8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case , SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
14. Even as per the respondents, if the Apex Court decision applies to the facts of this case, then, the applicant can only seek for a communication of the entries in question in the ACR within a specified period and on being communicated, the applicant could make a representation if he so chooses, against the said entries, so that a decision cold be taken by the Department on such representation on the question of upgradation of the entries. 'Dev Dutt' does apply to the case of the applicant.
15. The Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training which is the nodal Ministry has in its Office Memorandum No.21011/1/2010-Estt.A dated 13-04-2010 had stated as under :-
OFFICE MEMORANDUM Subject :- Below Benchmark grading in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading.
The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to the considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior too the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-a-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representation against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers if they are still in service' and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority.
Sd/-
(C.A. Subramanian) Director
16. Even if the order of the Nodal Ministry is not ipso facto applied to the respondents' organization by virtue of its status as an autonomous Scientific Society under the Ministry of Communication and Information Technology, the ratio in the above order could well be borrowed since the above said order had been issued in the wake of the decision of the Apex Court in the case of Dev Dutt.
17. Thus, keeping in view the above decisions of the Apex Court and also the Office Memorandum of the Nodal Ministry, the Application deserves to be allowed to the following extent :-
(a) The impugned Exhibit P-8 dated 14-05-2008 order is quashed and set aside.
(b) It is held that the respondents are duty bound to inform the applicant of the gradings on the ground of which the applicant was declared as not having qualified in the screening test. They are directed to initiate action in this regard within a period of two months from the date of communication of this order.
(c) The applicant is entitled to make a representation against the said grading within the stipulated time.
(d) The respondents shall consider the representation and arrive at a judicious conclusion whether to modify the grading and if so, and if such a modification results in the applicant's getting requisite percentage for selection or above, the case of the applicant shall be considered for in situ promotion to the Grade of ST IV from the dates others have been granted the promotion and the benefits thereof be made available to him including pay fixation and other consequential benefits. Since it shall be in situ promotion, the applicant would be entitled to pay and allowances as well and the arrears shall be paid to the applicant.
(e) In case the grading is not required to be modified, giving the reasons for the same the applicant be informed.
18. This order shall be complied with in full, within a period of six months from the date of communication of this order.
19. Under the circumstances, there shall be no orders as to costs.
(Dated this the 7th day of February 2012)
K.GEORGE JOSEPH Dr.K.B.S.RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp