Central Administrative Tribunal - Kolkata
Praveen Kumar Thakur vs S E Railway on 16 July, 2021
1 0 A/350/00837/2018
CENTRAL ADMINISTRATIVE TRIBUNAL^ o ? '
KOLKATA BENCH, KOLKATA / ^ ^
(Through video conferencing)
0.A/350/00837/2018 Date of Order-16.07.2021
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Coram* Hon'ble Ms.Bidisha Banerjee, Judicial Member
Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
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Sri Praveen Kumar Thakur, aged about 39 years,
residing at 35, Dayamoyee Road Pramoth Nagar,
4) i..
Parsudih, Jamshedpur, Jharkhand. Pin. - 831002.
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.Applicant
-Versus-
1. Union of India, through General Manager,
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South Eastern Railway, Garden Reach, Kolkata- -
700043.
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2. The Chief Personnel Officer, South Eastern
Railway, Garden Reach, Kolkata - 700043.
3. Deputy Chief Personnel Officer (Gazetted)
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South Eastern Railway, Garden Reach, Kolkata
- 700043,
4. Bibhuti Narayan Sharma, AOM/Ranchi, SE Rly,
Divisional Railway Manager, Office Hatia
Station Complex, Hatia, Jharkhand 834003.
5. Sonali Paruai, Station Director, Kharagpur S. E
Rly, Divisional Railway Manager Building,
Kharagpur - 721301.
w Respondents
2 O .A/350/00837/2018
For The App]icant(s): Mr. M. P. Dixit, Counsel
Mr. A. K. Khan, Counsel
For The Respondent(s)- Mr. R. Roy, Counsel
ORDER (ORAL)
Per- Dr. Nandita Chatteriee. Administrative Member Being aggrieved at not having received his promotion to the post of AOM/SS Group 'B', the applicant has approached this Tribunal in second stage litigation praying for the following relief: * .i •t "(a) Office Order doted 22.02.2018 and 04.04.2018 issued by Dy. Chief Personnel Officer(Gaz.), South Eastern Railway, on behalf of Principal CPO cannot be sustained in law and, therefore, the same may be quashed.
(b) Memorandum dated 14.12.2015 issued byDy. Chief Personnel Officer (Gaz.) on behalf of the Chief Personnel Officer, South Eastern Railway cannot be sustained in the eye of law and, therefore, the same may be quashed.
(c) An order issue directing the respondents to produce the records in communication in selection for promotion to the post of AOM/SS/Group B.
(d) An order issue directing the respondents to grant promotion in favour of the applicant to the post ofAOM/SS Group '8' with effectfrom the date the private respondent was promoted."
2. Heard both Ld. Counsel, examined pleadings and documents on record.
3. The brief facts, as on record and also as revealed during hearing, are that a notification was issued on 14.10.2014 (Annexure 'A-l') for promotion to the post of AOM/SS Group 'B' and that, although the applicant appeared in the written test as well as the interview, his name did not find any place in the final panel which was published on 14.11.2015 disclosing the list of promoted candidates.
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4. As RB/136/2010 (Annexure 'A-4') mandated communication of APAR/ACR to the employees, the applicant thereafter represented, on 27.04.2016, before the Chief Personnel Officer and respondent no. 2 in the O.A., referring to DoPT's O.M. dated 14.05.2009, praying for empanelment on the ground that his?
APARs/ACRs have never been communicated to him depriving him of the ..
opportunity to represent against his APAR/ACR grades and, thereby, nullifying his: • scope of empanelment. >r
5. Being aggrieved by the fact that the respondent authorities failed to yPrttritt-
!i = % communicate the APARs to him, the applicant moved this Tribunal in first stage \5 I A litigation in O.A. 835 of 2010 which was disposed of with the following orders:
"5. In view of the aforesaid manner of disposal of the matter by the Hon'ble Apex Court proceeding on the same line, we direct the respondent authority to ' to communicate to the applicant the ACRs of the five relevant periods for consideration of his case for promotion to the post ofAOM within 4 weeks from^y the date of communication of this order.
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6. The applicant shall make a representation to the said communication within . 15 days of receipt of the order seeking reconsideration/review and upgrading of the gradings.
7. The representation, if so made, shall be disposed of within a further period of .\ <>'■ 4 weeks.
8. In case it is found that the applicant is entitled to upgrading of the gradings . given in the ACR, the benefits of the same shall be extended to the applicant in accordance with law, within a further period of one month."
That, in compliance, the respondents served copies of his ACRs/APARs for the • • years '2010-11', 7011-12', 7012-13', 7013-14' and 7014-15' (Annexure 'A-7' to the O.A.) and the applicant submitted a detailed representation at Annexure 'A-8' to the O.A. in which he had pointed out certain irregularities in the writing of his ACRs/APARs and sought a review of his grades. The respondent authorities disposed of his representation on 22.02.2018 - at Annexure 'A-9' to the O.A. rejecting his prayers for review. The orders of the respondent authorities, so 4-c 4 O.A/350/00837/2018 communicated for the non-acceptance of his prayers for review, are as under
South Eastern Railway No. DCPO(G)/CON/CC/CA T74 6 CPO's office/GRC Doted: 22.02.2018 Sri Praveen Kumar Thokur, Sr. Goods Guard, ^ a South Eastern Railway, Tata.
Sub:- Orders dated 14.11.2017 in O.A. No. 83S/2016in the l£ Hon'ble CAT/Kolkata- Sri Praveen Kr. Thakur, Sr. Goods Guard/ SER/Tatavs. UOI&Ors.
W\ In compliance with the Hon'ble CAT/CAL's orders dated 14.11.2017 in O.A. No. 835/2016, after considering your representation dated 25.12.2017 grading made in yourACRs for the year ending 2010-2011 to 2014-2015 were reviewed by the competent authority, who have decided that grading made earlier stands good. d4 ■ 1 Please acknowledge receipt.
(Shreerangam Haritash) Dy. Chief Personnel Officer(Gaz.) ■inf:
For Pr. Chief Personnel Officer The applicant, thereafter, sought further information through RTI and received'a reply at Annexure 'A-10' to the O.A. A further communication dated 04.04.2018 (Annexure 'A-ll' to the O.A.) was issued by the authorities, reiterating their views in refusing to review his grades and also stating that the noting of the correspondence cannot be disclosed to him being confidential in nature. Being aggrieved thereupon, the applicant has approached this Tribunal in the instant O.A. praying for the above mentioned relief.
6. Per Contra, the respondents have contended and attempted to controvert the submissions of the applicant with the following arguments:- T y
5 O.A/350/00837/2018 (0 That, the applicant's ACR/APAR for the periods '2010-ir to '2014-15' were graded as follows:
'e Year Grading f 2010-11 Good 2011-12 Good 2012-13 Very Good 2013-14 Very Good 2014-15 Very Good
(ii) That, as because none of his gradings were below benchmark, such gradings were not communicated to the applicant.
(iii) That, in compliance to this Tribunal's orders, the ACRs/APARs of th'e* applicant were conveyed to him for the period of '2010-11' to '2014-
15' and, upon receipt of his representation for upgradation of the "
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grades therein, the competent authorities did not agree to review of such grades and, accordingly, the applicant's merit position being 'No. 3' against one UR (Unreserved) vacancy, did not entitle him fbr'u> empanelment. ir ■
(iv) The respondents would further contend that:
"The Departmental Selection for gazetted posts against LDCE(Merit quota) in Indian Railway, in general, is a highly competitive one and the candidates 'Make ' it' or 'Lose if with slender margins. For this subject selection, there were 03 UR candidates called for viva-voce against only 01 UR post notified. And the applicant, based on his overall performance, was at SI. No. 03 in overall merit among UR candidates and hence could not be empanelled. The final merit is prepared based on the overall performance (written test, record of service, viva- voce and personality test, etc.) and not chosen on the basis of written test solely. One has to be excelling on all accounts in order to be finally selected where the selection is purely merit based and highly competitive as explained above."
7. The moot issue, in this adjudication, is whether the applicant was eligible for promotion to the post of AOM/SS Group 'B' against LDCE (Merit quota) as per . 1■i' r ■ .;:..
r\ ■• / 6 O.A/350/00837/2018 • merit. The respondents have admitted in their reply that the final merit list is £.
prepared based on overall performance comprising written test. Records of Service and viva-voce.
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8. Upon perusal of Annexure 'A-12' to the O.A., which lists the details of the •X marks obtained in the written examination (as obtained by the applicant under "
ig RTI), it is clearly seen that the applicant, along with other aspiring candidates, had s-
appeared in both 'Paper T and 'Paper IT of the written examination. The* candidate had obtained the 3rd highest marks in 'Paper I' and the highest marks iff- V.piMf#,;-
§\ 'Paper II' and that his aggregate marks for 'Paper I' and 'Paper II' were the highest1;^ £ | of in the written examination and he was undisputedly the best performing ..
Tie candidate on merit as per the written examination.
9. The applicant has further submitted in his rejoinder that he had replied .4 correctly to al) the questions put to him in the viva-voce - a statement not contradicted by the respondents either in their written submission-or during' .CT\r hearing.
10. Hence, the only item which stood in the way of his empanelment were his "Records of service" (nomenclature for ACRs/APARs), The applicant, in his representation at Annexure 'A-8' to the O.A. had pointed out a large number of discrepancies and incongruencies in the writing of his ACRs/APARs. The respondent authorities, however, have cryptically dismissed his prayers only stating, thereby, that the grading made earlier stands good. Even in their reply at Annexure 'A-ll' to the O.A., apart from reiteration of rejection of his prayer, the respondent authorities have refused to disclose the reasons for rejection under ?
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the garb of confidentiality. r
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7 O.A/350/00837/2018
11. The applicant would very aptly refer to the decisions of the.Hon'ble Apex -
Court in the case of 'Dev Dutt vs Union Of India (reported in (2008)2 5CC (L&S) i
771)' in his pleadings: c Lt "For the Hon'ble Apex Court in the case of Dev Dutt reported in (2008)2 SCC (L&S) 771 had been pleased to hold that non-communication of entry in theACR may adversely effect the employee in two ways: (1) Had the entry been communicated to him 0 he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future. (2) He would have an opportunity of * making a representation against the entry if he feels it is unjustified, and pray for its upgradation. If the same is not communicated it will be a violation of natural justice. q Even outstanding entry should be communicated. It was further observed that even a single entry can destroy the career of on officer who has otherwise been outstanding throughout. Good officers who are superseded due to arbitrariness while officers of inferior merit may be promoted."
*5 *Y Accordingly, as even a single entry can destroy the career of a brilliant officer/it is .
the responsibility of the 'reporting authority', the 'reviewing authority' and the^ 'accepting authority' to act with due diligence and to correctly and objectively^ assess the performance of the officer who is being reported upon. It is difficult to^ comprehend how an officer, who had only been graded as 'Good' in '2010-11' and in '2011-12', was suddenly considered to be 'Very Good' in the remaining three ? tv years, i.e. '2012-13', '2013-14' and '2014-15' respectively reflecting lack Of consistent and objective assessment. Throughout the ACRs/APARs, his authorities have found him "reliable", his performance "satisfactory" and his integrity "unquestionable" only to dismiss his performance, summarily, with a grade of 'Good' and 'Very Good' which would impinge on his future career. Sadly, even when the authorities were moved, they failed to disclose the detailed reasons as to how they have rejected his prayer for review. In Dev Dutt (Supra), the Hon'bje •> •?
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Apex Court had stated as follows: *
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"In the present case, the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that • i.
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8 0. A/350/00837/2018
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the candidate should have Very Good' entry for the last five years. Thus, in this "
situation the 'good' entry, in fact) is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is, an adverse entry or not. It is thus the rigours of the entry which is important, not^'.
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the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse • "
effect on his chances."
The HorTble Apex Court went on to remark further as follows: I* r.
i i "For example, if the benchmark is that an incumbent must have 'very good' ■ X entries in the last five years, then if he has 'very good' (or even 'outstanding') entries for four years, a 'good' entry for only one year may yet make him 4/ . ( he.
ineligible for promotion. This 'good' entry may be due to the personal pique of "f r 'i his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy or his superior, or because of caste or communal prejudice, or for some other •/$ extraneous consideration.
In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, . ,' average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been CM* communicated to him he would know about the assessment of his work and ■ I conduct by his superiors, which would enable him to improve his work in future. >■ (2) He would have an opportunity of making a representation against the entry jf he feels it is unjustified, and pray for its upgradation. Hence, non-communication . of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution. i >• Thus, it is not only when there is a benchmark but in all cases that an !f entry (whether it is poor, fair, average, good or very good) must be - communicated to a public servant, otherwise there is violation of the principal of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make - him work harder."
The Hon'ble High Court at Orissa, while deciding on Madan Mohan Khatua v/s State of Orissa & Ors. '1978(1) SLR 835 (ori)' held as follows:
"As the administrative instruction of 1966 shows, representations against adverse entries are seldom entertained. In the instant case, the representation of the petitioner has been disposed of without indication of any ground. It also does not show that the defects pointed out by the petitioner against the record of the entry were taken into consideration. Undoubtedly, the representation made by the petitioner to the administrative superior is not required to be i disposed of as a revision to a judicial authority. Yet, it is appropriate that the ■ ?
representation made to the administrative superior is disposed of in such a manner that the representationist is in a position to appreciate that the:
grievances indicated in the representation were taken into account. A bald order 9 0 .A/350/00837/2018 / indicating the fact of rejection would not satisfy the aggrieved officer and is likely to create an impression that the merit of the matter has not been taken into account."
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In State Bank Of India v/s A.P. Mathai, 1988(4) SLR 94 (Bom), the Hon'ble Apex Court had ruled that the proper course would be to direct the competent 't authority to dispose of the representation and depending on the result thereof to*'., reconsider the action taken. In this instant matter, the applicant was not in a r position to represent prior to finalization of the panel as the ACRs/APARs were' id not communicated in time to the applicant in total violation of the ratio contained; „ i'(£ in Dev Dutt (Supra).
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12. id. Counsel for the respondents is also not in a position to defend the -
action of the respondent authorities in their cryptic communications at Annexure 'A-9' and 'A-ll' to the O.A. Hence, we would set aside the communications of the,.
authorities at Annexure 'A-9' and 'A-ll' to the O.A. and direct the competent jn. .
authority to issue a reasoned and speaking order on an objective review of the qI grades of the applicant (untrammelled by their earlier decisions at Annexure 'A-S' U'X to the O.A.), for each of the years 7010-11', '2011-12', '2012-13', '2013-14' and '2014-15'. While doing so, the authorities should examine the issues raised by the applicant against writing of his ACRs/APARs in his representation at Annexure 'A-
8' to the O.A.
13. We further note with concern that the selected candidate (private respondent no. iv) had obtained a total of '227' in the written examination as against '234' which was obtained by the applicant in the same examination.
Accordingly, the competent authority shall also compare the performance,:.of 'Private respondent no. (iv)' with that of the applicant candidate as the selected V T !* 't
-. ■ •-1'- ^ 10 O.A/350/00837/2018 candidate appears to have surpassed the applicant only on the basis of his grades of ACRs/APARs and not on "merit" as reflected in the written examination, per se.
14. The exercise should be completed within a period of eight weeks from the receipt of a copy of this order.
15. The O.A. is disposed of with the above directions. No costs.
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(Nandita Chatterjee) (Bidisha Banerjee)
Member (A) Member (J)
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