Central Administrative Tribunal - Delhi
Shri Gauhar Raza vs National Institute Of Science on 28 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2805/2009 New Delhi this the 28th day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri Gauhar Raza S/o Shri Wizarat Husain, R/o C-94 Aakash Ganga CGHS Plot No.19, Sector 6, .. Applicant Dwarka, New Delhi-110075. (By Advocate: Mr. Mohan Shandilya with Ms.Ananya Bhattacharya) VERSUS 1. National Institute of Science Technology and Development Dr.K.S. Krishnan Marg New Delhi-110012. 2. Council of Scientific & Industrial Research Anusandhan Bhawan, 2 Rafi Marg New Delhi-110001. 3. Ministry of Science & Technlogy and Earth Sciences Anusandhan Bhawan, 2 Rafi Marg, New Delhi. .. Respondents (By Advocate Ms. Nidhi Bisaria ) O R D E R Honble Mr.L.K. Joshi, Vice Chairman(A) :
The Applicant is aggrieved by the proceedings of the Peer Committee meeting dated 02.03.2009, in which the Applicant has been assessed as Not yet fit for promotion from Scientist Grade IV (5) to Scientist Grade IV (6), Scientist G, for the assessment years 2003-04, 2004-05, 2005-06 and 2006-07.
2. The facts of the case show that the Applicant was appointed as Scientist C in 1982 under the first Respondent, the National Institute of Science, Technology and Development (NISTADS). He steadily climbed up the ladder of promotion till he rose to the level of Scientist F with effect from 1998, although the promotion was effected in 2008. He became eligible for promotion to Scientist G in 2003. The Peer Committee met in 2009 and, to his utter dismay, found him unfit for promotion for the years 2003-04 to 2006-07.
3. The learned counsel for the Applicant would contend that the Respondents have always disregarded the interests of the employees, as would become amply clear from the fact that even in case of promotion from level EII to F, the promotions were delayed by a decade. He would further contend that as per the instructions under the Merit and Normal Assessment Scheme (MANAS), the assessment has to be done once in an year. The relevant instruction is reproduced below:
2.6 Time Schedule for Assessment Assessment period will be the financial year and assessment will be done once in [an] year. Only eligible employees up to 31st March of the year will be considered for assessment. As far as possible the assessment will be completed by 30th September of the year. It was further argued that the assessment has to be done year wise for backlog vacancies and there have to be separate committees for each year. In this context the following instruction has been specifically pointed out:
6.11 Methodology for Clearing Backlog :
Normally an employee should be assessed for only one chance in [an] Year. In case, it is necessary to hold assessment for more than one chance in [an] year due to backlog or otherwise, it would be necessary to:
a) have separate assessment committees for each of the years; The learned counsel would contend that the Respondents had done great injustice to the Applicant by bunching the assessment for four years from 2003-04 to 2006-07. The Applicant missed the opportunity of improving himself every year, in case he was not found 'Fit' in a particular year. The Applicant was deprived of his right to have an opportunity to improve for the subsequent years because the Respondents did not convene the meeting of the selection committee and declare its results in time. He would further contend that by an amendment of the instructions, the procedure for interview was wrongly deleted, as a result of which he did not get the opportunity to present his achievements before the committee personally, an opportunity which would have been available to him had the assessment been held in time as per the existing instructions. Moreover, the amendment provided that for backlog vacancies, the Peer Committee could consider the Scientists in one sitting. He would contend that this resulted in distortion because the members of the committee were not changed and their bias was reflected in all the selections for four years. It was argued that the Applicant would have had a chance of un-biased consideration in each year, had the committee been different for each of the years. It was further contended that the amendment effected in the year 2007 could not apply to the assessments made for the years previous to that. Those assessments have to be made according to the rules and instructions in regard to the meeting of the committee prevalent during those years. The learned counsel would point to the averment made by the Respondents in paragraph 5 of the additional affidavit filed by them, which, inter alia, reads thus:
It is pertinent to mention here that the competency of the Committee is not under challenge. The applicant submitted the same Papers repeatedly for assessment to various grades and, therefore, his name was not recommended for promotion. The work, as submitted by the applicant is as follows:
Assessment Year/Chance 2003-04 Ist Chance 200405 2nd Chance 2005-06 3rd Chance 2006-07 4th Chance ECF 103 103 103 103 Indian publications 9 10 10 10 Papers in SC1/Non SC1/review papers 6,2,0 7,2,0 9,2,0 9,2,0 Projects 10 11 12 15 The marks awarded to the applicant were purely based on merits and was in accordance with the relaxed provisions of holding separate assessment for each year in a separate sitting as the procedure of interview was deleted to clear the backlog of assessment promotion from Scientist F to Scientist G upto the year 2006-2007. Since the Rule 6.11 of MANAS was amended so as not to include separate sitting for each assessment, therefore, the PEER Committee acted rightly as per the rules. He would contend that the information given regarding External Commercial Funding (ECF) in the first column of the table in the above paragraph was totally erroneous as just an amount of 103 was mentioned. He would contend that the amount was Rs. 1.03 crore only for the year 2003-04. The work report for the relevant year has been placed at Annex-D and the amount of Rs. 1.03 crore has been mentioned in column 4. 2 of the report. Another work report for the year 2006-07 has also been placed in the same annex, in which an amount of Rs. 4.50 crore has been mentioned in column 4. 2. It was contended that the table has been prepared without any application of mind and wrong information has been supplied to the Peer Committee. It was further contended that the Applicant had always been graded as 'Outstanding' in the Annual Performance Appraisal Reports, as could be seen from the information given by the first Respondent, placed at pages 247 and 248. The Applicant was given hundred marks out of hundred by the Director on certain parameters of assessment.
4. The Applicant has placed reliance on the judgement of the Honourable Supreme Court in Vinod Kumar Sangal V. Union of India and others, 1995 (2) SLR 695.
5. The only arguments advanced by the learned counsel for the Respondents was that the Rule 6.11 of the Council for Scientific and Industrial Research Scientists Recruitment and Assessment Promotion Rules, 2001 had been amended, which was notified on 12.03.2007. She would contend that it was no longer necessary to hold interview for the assessment of the Scientists and one committee could consider Scientists for assessment for several years.
6. In Vinod Kumar Sangal (supra), the Honourable Supreme Court considered a similar case of promotions in Geological Survey of India and held that vacancies for several years could not be bunched together and that it would be necessary to make selection on yearly basis for the vacancies of the particular year.
7. The amendment to the relevant rule was discussed in the General Body meeting of the Council for Scientific and Industrial Research, minutes whereof have been placed on record by the Applicant at pages 157-158 of the paper book. The minutes have been reproduced below:
The Governing Body of CSIR at its 169th meeting held on 22nd June, 2007 approved amendment to Rule 7.2 of CSIR Scientists Recruitment & Assessment Promotion (CSRAP) Rules, 2001. In the amended rule, the provision for interview by an Assessment Committee was removed and was replaced by assessment to be performed by a duly constituted Peer Committee on the basis of Annual Confidential Reports and Work Reports (Anenxure-10.1).
The Governing Body at its 170th meeting held on 28th January, 2008 approved amendment to Rule 9 of CSRAP Rules, 2001 and empowered DG, CSIR to relax/modify/amend any of the existing rules to overcome the operational difficulties in speedy assessment of scientists. Such relaxation/amendment/ modification was made applicable from the date of notification of the DGs decision unless specified otherwise and was to be placed before Governing Body for ratification (Annexure-10.2).
Promotion of Scientists Group IV from the level of Group IV(5) to Group IV(6) was scheduled to take place from 24th March, 2008. There was a backlog of three years-2004-05, 2005-06 and 2006-07- to be cleared under the marginally modified Rule 7.2 of CSRAP Rules, 2001.
Current Status and Analysis As the procedure of interview was deleted, it was felt necessary to relax the provision of holding separate assessments for each year in a separate sitting, as given under Rule 6.11 of Revised MANAS-deemed to have continued under the provisions of Repeal and Saving of CSRAP Rules, 2001 to overcome the operational difficulties and to clear the backlog of assessment promotion of Scientist Group IV(5) to Group IV(6). Accordingly, Director General CSIR in exercise of powers given to him by the Governing Body at its 170th meeting, approved relaxation of the provisions of Rule 6.11 of Revised MANAS, to hold assessment of all the candidates who were eligible to be considered for more than one chance, in one sitting, by a duly constituted Peer Committee after considering the separate incremental work reports, for each assessment year, as submitted by the candidate. The assessments have been held accordingly for all candidates eligible during the years 2004-05, 2005-06 and 2006-07 and the Committee has considered separate incremental Work Reports for each year in all those cases and had given their recommendations. On the recommendations of the Chairman, Recruitment and Assessment Board of CSIR, DG, CSIR in exercise of his powers delegated by the Governing Body, has also approved that the provisions of Rule 6.11 of Revised MANAS will not apply in future also when ever backlog of assessments in the case of Scientists Group IV(5) under CSRAP Rules 2001 comes up for clearance.
Recommendations Governing Body may kindly consider for approval. The amendments were circulated by letter dated 20.03.2008 as under:
COUNCIL OF SCIENTIFIC & INDUSTIRAL RESEARCH No.1-5(1)/2008-RAB Dated 20th March,2008 From: Head, Recruitment & Assessment Board To Directors of all National Labs/Instts.of CSIR Sub: Amendment to CSIR Scientists-
Recruitment & Assessment Promotion Rules, 2001.
Sir, The Governing Body of CSIR at its 169th meeting held on 22nd June, 2007 has approved the following amendment to Rule 7.2 of CSIR Scientists Recruitment & Assessment Promotion (CSRAP) Rules, 2001:
Existing Rule Amended Rule Rule 7.2 Promotion up to the level of Scientist Group IV(6) i.e. of Scientist Group IV (1), IV(2), IV(3), IV(4) & IV(5) shall be made on the basis of:
(i) preliminary proceeding by an Internal Screening Committee formed as per Rule 7.5.1 which takes into account the Annual Confidential Reports recorded for the years covered under the residency period; and
(ii) interview by the Assessment Committee as specisfied hereafter. Rule 7.2
(a) Promotion up to the level of Scientist Group IV(5) i.e. of Scientist Group IV(1), IV(2), IV(3), & IV(4) shall be made on the basis of:
(i)preliminary screening by an Internal Screening Committee formed as per Rule 7.5.1, which takes into account the Annual Confidential Reports recorded for the years covered under the residency period; and
(ii) interview by the Assessment Committee as specified hereafter.
(b) Promotion to the level of Scientist Group IV(6) i.e. of Scientist Group IV(5) shall be made on the basis of:
(i)preliminary screening by an Internal Screening Committee formed as per Rule 7.5.3, which takes into account the Annual Confidential Reports recorded for the years covered under the residency period; and
(ii) Assessment by a duly constituted Peer Committee which takes into account the Annual Confidential Reports and the Work Reports for the years covered under the residency period without holding any assessment interview The amendment in Rule 7.2 shall be implemented for all the cases of assessments, now onward before RAB, including pending cases of earlier years under CSRAP Rules, 2001 as approved by the Governing Body at its meeting held on 22.6.2007. Further, the following amended rule regarding the power to relax rules was also circulated by letter dated 29.02.2008, which has been reproduced below:
From : Head Recruitment & Assessment Board To Directors of all National Labs/ Instts. Of CSIR Sub: Amendment to CSIR Scientists Recruitment & Assessment Promotion Rules, 2001. Sir, The Governing Body of CSIR at its 170th meeting held on 28th January, 2008 has approved the following amendment to CSIR Scientists Recruitment & Assessment Promotion Rules, 2001. Existing Rule Amended Rule Rule 9 Rule 9 Power to relax- The Governing Body may relax any or all the provisions of these Rules wherever considered necessary.
Power to relax/modify-Director General, CSIR, may relax/modify/amend any of the existing rules to overcome the operational difficulties and for speedy assessment of scientists on the recommendations of the Recruitment and Assessment Board, wherever considered necessary. Such relaxation amendment/modi-fication shall be applicable from the date of notification of the DGs decision unless specified otherwise.
The relaxation modifications/amend-ments, if any, shall be ratified by the Governing Body.
Although it has been stated that the rules were being modified for backlog vacancies, yet it has not been stated that these will apply retrospectively. It is an accepted principle that the rules would apply only prospectively unless clearly stated in the amended rules that this would apply retrospectively. In our considered opinion the amended rules would apply for backlog vacancies only in future and not for the backlog vacancies, which occurred prior to the amendment of the rules. Moreover, it seems also that the consideration in regard to the Applicant has not been on the correct facts, as demonstrated by the learned counsel for the Applicant by pointing out that the information regarding ECF placed before the Peer Committee was wrong. The consideration cannot be said to be fair in view of such discrepancies, which the Respondents have failed to explain in spite of the queries in this regard.
8. In the light of this the OA succeeds and the assessment made by the Peer Committee in regard to the Applicant for the years from 2003-04 to 2006-07 an 02. 03. 2009 is quashed and set aside, with the directions to the Respondents to re-assess the Applicant for promotion to Scientist IV(6), in accordance with the un-amended rules of 2001. These directions would be complied with within two months of the receipt of a certified copy of this order. There will be no orders as to costs.
( L.K.Joshi ) ( V.K. Bali) Vice Chairman (A) Chairman rb