Central Administrative Tribunal - Kolkata
Mantu Ch Saha vs C L W (E R) on 8 December, 2017
1 o.a. 621.2011
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CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH
No. O.A. 621 OF 2011 Date of order:
Present: Hon'ble Ms. Manjula Das, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Shri. Mantu Chandra Saha (SC),
Son of Late Sudarshan Saha,
Aged about 52 years,
Working as Tech. Grade-I (M. Fitter),
T. No. 26/970, C/No. 327871N, BU No. 264, CLW/CRJ,
SSE/ELF-26 Shop/CLW/CRJ,
Residing at Street 28, Qrt. No. 24/A,
Chittaranjan, Burdwan.
Applicants
Vs.
The Union ,''
ofInda r
t. - ..'
Through .theGeneraI Manrager
CLW/Chitthranjaii'r.
Burdwan,
P1 (i 3
1
Th h i e f s :n&fficth'
CLWjChittàranJaçI, V\:?
Burdwanr--... .Z\
'
Pin - 71 3331.
Sri DipankarBiswas.(SC),/,
Tech. I, T:-No. 6/41 Ne,T'No. 16/007).
Sri Durga Charan Mondal (SC),
Welder Gr. II, T. No. 171545 (New T. No. 16/001).
Sri Goutam Mondal (SC),
M. Fitter,
Gr. II,
T. No. 05/189.
Respondents
For the Applicant : Mr. A. Chakraborty, Counsel
For the Respondents Mr. A.K. Banerjee, Counsel
o.a. 621.2011
ORDER
Per,Dr.. Nandita Chatterjee Administrative Member:
This Original Application has been filed under Section 19 of the Administrative Tribunal, 1985 seeking the following reliefs:-
"a. Panel dated 30.6.2010 regarding formation of panel of Inter- stage Apprentice Mechanics (Mechanical) cannot be tenable in the eye of law as the same was prepared in violation of Rule 219 (G) of the IREM and therefore the same should be quashed. b. An order do issue directing the respondents to prepare the panel afresh as per Rule 219 (G) of the IREM and also in the light of the judgment passed in Ramjay Rams Case.
c An order do issue directing the respondents to allot marks in respect of personality address leadership and also to allot proper marks in respect of record of service since no adverse remark was ever communicated to him."
2. Ld. Counsel for the applicant and respondents are both present and heard. Ld. Counsel for the;pplicant,J.n
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his submission on behalf of the
t
applicant, submitted ass1low ti
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(i) That, a (notification.was,.issuefor filling IUp of the post of Apprentice (M es were declared ,\ I for promotion out 3andi'dates and 2 were for I i, ST. In all, 649 .candi I(including the applicant. The applicant was declared suitable in the written test but he was not placed in the panel of successful candidates.
That, the applicant being a Science Graduate with a diploma in Mechanical Engineering, his qualifications were to be adequately recorded in the performance sheet.
That, O.A.s bearing No. 91. of 2008 and O.A. No. 336 of . had been filed challenging the selection test on the ground that 2005 the panel was prepared on the basis of seniority and not on the basis of merit and the Tribunal vide its order dated 31 .7.2009, while relying upon a case of the Hon'ble Apex Court in Ram Jay Ram v. South Central 3 o,a. 621.2011 Railway & ors. 1996 (.1) SCSLJ 536 as well as Railway Board Circular dated 19.6.2009, had directed the respondents to prepare a fresh panel after following the Railway Board's revised Circular dated 19.6.2009. The implications were that the panel had to be prepared strictly according to the merit based on aggregate marks of professional ability, Record of Service and marks secured in the written examination.
(iv) That, a similar decision was arrived at by the Punjab and Haryana High Court in Writ Petition No. 4746 of 2002 which was subsequently upheld by the Hon'ble Apex Court in SLP No. 16744-2008 vide orders dated 5.1.2009.
3 Challenging the panel dated 306.2019, the instant application has SL t'a tj; N v# \.
UI I II U. -. El le by their Ld. Counsel
Per contra, the-espoen't a e'pisentd Y have argued as fol (I) That a I Pt. X dated 28.10.2003 was to the post of Inter Stage Apprenti ). As the applicant was eligible for appearing in the test, his name duly appeared in the eligibility list circulated vide No. GMAITTC/3/1 Pt. X dated 14.9.2009. The applicant passed in the written test and scored 26 out of 50 and 18 out of 30 marks in the Record of Services obtaining thereby, in aggregate, 44 out of 80 marks. That, the panel was prepared purely on merit basis and as per directives of CAT dated 31.7.2009. That, the candidate, although suitable on relaxed standard, did not qualify as Per. merit.
(ii) That the respondents have followed the Rule 219 (j) of IREM Vol. I and the directives of the Tribunal dated 31.7.2009 in O.A. No. 91 of H 4 o.a. 621.2011 2008. It has also been stated by the respondents that, while the qualifying marks for professional abilities was 30 against the maximum of 50, there were no qualifying marks against the Records of Service for which the maximum marks were 30.
it has also been stated by the respondents that records of service was based on the performance of the employees in the Zonal Training examination of Confidential Records as well as School/institute, UOfl other relevant records.
The two issues which are to be resolved to adjudicate the instant
5. matter are as follows:-
(I) Whether the panel dated 30:6.2010 under challenge was ç ~heRaiiwacBOard's relevant circulars prepared in accordanc ñ~ -..
ITi '\ .
an9loI. I (1989 Edition)
based on Indian /RaJj
/
vay ,ard's letter No.
Para 219(j) sCa
E(N G)l-2008/PM74'SLP
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(ii) Whether t h'e parêl'1'dated 30.6.2010 .Wä prepared as directed by the Tribunal on 31 The relevant circular as referred to by the Tribunal as per revised order of Railway Board dated 19.6.2009 has been annexed atAnnexUre "R-2" to the reply, which states as follows:-
"INDIAN RAILWAY ESTABLISHMENT MANUAL VOLUME-I (1989 Edition) ADVANCE CORRECTION SLIP NO. 20 Chapter II, Section 'B' Rules governing the promotion of Group 'C'
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staff.
I. Substitute the following for the opening sentence of existing sub-para (j) of Para 219-
(j) For general posts, i.e., those outside the normal channel' of promotion for which candidates are called from different categories whether in the same department or from different departmental and where zone of consideration is not confined to three times the number of staff to be empanelied, the selection procedure should be as under:-
II. Substitute the following for the existing clause (iii) below sub-par (j) oa 6212011 ofpara 219:-
"The final panel should be drawn up in the order of merit based on aggregate marks of 'Professional ability' and 'Record of service'. However, a candidate must secure a minimum of 60% marks in 'Prfessional ability' and 60% marks in the aggregate, for being placed on the panel. There will be no classification of candidates as 'Outstanding'.
6. In this case, as submitted by the respondents, the maximum marks for "professional ability" was 50 and hence to qualify, a candidate has to secure a minimum of 60% in the field, that is 30 marks. The respondents have stated that the applicant had secured 26 against 50 which was below the qualifying marks and only in the context of relaxed standard, could he be, considered as qualified for "professional ability".
7. Regarding 'record of'iise'iteefl that the candidate has been ' \ awarded 18 marks agAi ns?~ maim1jrh f,3O markàllotted to this item and K%nst thiiheadIng According to there are no mnimu'mqual ify obtained from performance the respondents, the L) of the employee in ZonaV iniiSclbol/lnstitUte, Upon I examination of \ J.'..'...
CRs and other relevant'reOrs It is noted here thatàs.th eliantrecords have not been
8. detailed, such records cannot be subjected to objective assessment in absehce of specifics. No documents has been produced before us by the respondents to prove as to how the applicant was awarded against his performance in the Zonal Training School/Institute. Regarding his CRs, the dossiers of CR has been furnished by the respondents to the Court. Up9n perusal of the same, the applicant's record from 2008-2009 onwards are recorded as follows:-
Year of assessment ACR Grading •
2008-2009 Very Good
2009-2010 Very Good
0.3. 621.2011
Hence, it is seen that 2008-2009 onwards, the candidate did receive grades which were below outstanding. 'Outstanding' was only awarded to him in the year 2013-2014.
According to DOPT O.M. No. 21011/1/2015-EStt. (A) (Pt. II) dated 14.5.2009: . . LI.
The full APAR inclUding the over j'i'ade and assessment of "(ii) integrity shall be he nc'rQed officer after the Report is comple'Thithfly jfie rrnrA?i eRewieWiflg Officer and Accepting Authority wher'er.Süth'S mt\in vogue. Where Government servant haspnlyo sipervl leriel above him as in the case of personal sraff ;h cmnunicatiOfl shall be made after th êporti nirVa nplé?d the performance assessment. \ (iH) ' The Sectioft V VtUa-4ce of APARs after its re(orted upon.
receipt shall disclose _ --
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The concerned officer sh1l be given the opportunity to make any representation against the entries and the final grading given in the Reort within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output, etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on, or before fifteen days from the date of disclosure, the APAR will be treated as final.
The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the Reporting Period 2008-2009 which is to be initiated after 1st April, 2009.
The Competent Authority for considering adverse remarks under the existing instructions may consider, the representation, if necessary, in consultation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before hin o.a. 621.2011 within a period of thirty days from the date of receipt of the. representation.
(vii) The Competent Authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the Competent Authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section."
ii. The respondents, however, have relied on a Master Circular No. 28 dated 17.6.1991 which states in terms of Para 8 that "adverse remarks recorded in the Confidential Report of a Railway servant should be communicated". The Master Circular is of 1991 vintage and respondents have not stated anywhere that the Railway Establishment have not 'adopted DOPT O.M. dated 14.5.2009 for disclosing of APAR from 2008-2009 onwards. In the abs of an it is presumed that the /fr employee had a right' toBe S , isRfrn' 2008-2009 onwards.
Consequently, hedhIncp the APARs from
2008-2009 onwardsfdPu ed ,J
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r
12. In the absene C 1>and secific response on
behalf of the /
tada ri~ed at 18 marks for
"Record of Service" against r're of the view that it cannot
be concluded that the marks awarded to the applicant against "Records of I Service" was arrived at objectively and with specific accuracy.
The respondents by their own admission, have stated that the applicant qualifies under relaxed standard under performance score. Hence, it is only his apparent low marks against "Records of Service" which has legitimately deprived him from being empanelled as a successful candidate.
Hence, (i) we direct that the respondents disclose all APARs from 2008-2009 onwards to the applicant thereby giving him an opportunity to. represent, if he so desires, against the same to the competent authority. In this, we are guided by Hon'ble Apex Coirt's observations in Dev Dutt v
- uj Union of India & ors. (2008) 8 SCC 725 wherein it has held that:
/ "Dirern+ rf ,'rmmIInigfir%n
I II IL .JI %J'.JI liii
of the ntris flow from the
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constitutional obligation of fairness, non-arbitrariness and natural justice."
The Supreme Court has not restricted the obligation to adverse remarks only. It has said that communication of outstanding grading is only recommended as the same would boost the morale of the employee.
A Constitutional -Bench judgment of the Supreme Court in Prakash Chand Sharma v. bNGC 1970 SLR 116 (SC) found that:
"the- committee's taking into consideration confidential reports with respect to which the petitioner had been given no chance to make a representation was merely fortuitous."
(ii) The respondents also should objectively quantify the marks awarded to him for perform dcft è,plye in the Zonal Training School/Institute and account foreanyoth&arks awarded for other relevant records, after specifying the_sam 1pondecisiôni of the competent authority on the rdp entaci90 a'ant adJupon an objective reassessment on the makaThvdat-in thç'%ervice record" category of, the applicant, the reson'defts' hould, if-sd perri{itted under the rules refresh the panel dated 3O6.2.Q1O. JThe-' entire exercise should be completed by the Respondent authorities within 16 weeks of the date of receipt of this order.
There will, however, be no orders on any retrospective -beneflts accruing to the applicant in case he is so empanelled by the Respondent authorities.
The O.A. succeeds. No costs.
(Dr. Nandita Chatterjee) Administrative Member sP