Central Administrative Tribunal - Jabalpur
Pallavi Tandon vs Union Of India on 12 September, 2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING : BILASPUR
Original Application No. 776 of 2012
Jabalpur, this Thursday, the 12th day of September, 2013
HONBLE SHRI JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
Pallavi Tandon, D/o Shri Shiv Gopal Tandon, Aged about 44 years, Director Telecom, TEC, Department of Telecom, Khursheed Lal Bhawan, Janpath, New Delhi-110001, R/o H.No. 1, Street No.22, Sector 9, Bhilai, District Durg (CG) 490009 -Applicant
(By Advocate Shri Manoj Sharma)
V e r s u s
1. Union of India, Through Secretary, Department of Telecommunication, Ministry of Communication, Government of India, Sanchar Bhawan, 20 Ashoka Road, New Delhi 110001
2. Bharat Sanchar Nigam Limited Corporate Office, Bharat Sanchar Bhawan, H.C. Mathur Lane,Janpath, New Delhi 110001 Through its CMD
3. Director (Consumer Mobility), BSNL Board, Bharat Sanchar Bhawan, Harish Chandra Mathur Lane, Janpath, New Delhi 110001
4. Chief General Manager, Chhattisgarh Telecom Circle, BSNL Administrative Building, Vidhan Sabha Road, Khamardeeh, Raipur (CG) 492007
5. General Manager, CMTS (P&D), Bharat Sanchar Nigam Limited, Chhattisgarh Telecom Circle, Room No.214, Second Floor, Auto Exchange Building, Near Lalganga Shopping Complex, Raipur (CG) - 492001 - Respondents
(By Advocate Shri R.M. Solapurkar)
(Date of reserving the order:22.08.2013 )
O R D E R
By G.P.Singhal, AM.-
The applicant in this Original Application has prayed for the following reliefs:-
8(i). Call for the entire relevant record from the respondents for its kind perusal ;
(ii) Quash and set aside the downgraded entries in her ACR Annexure A/1 wherein she has been reported and reviewed as Good with a direction to the concerned authority/s to upgrade the same to minimum Very Good or above;
(iii) Quash the impugned rejection of representation and return of memorial of applicant viz. Annexure A/2 & Annexure A/3;
(iii) Any other / orders, which this Honble deems fit and proper.
(iv) Award cost of the litigation in favour of applicant.
2. The brief facts of the case are that the applicant, who is an officer of Indian Telecom Services (for brevity ITS) of 1991 batch, has been given Good grading in her Annual Performance Appraisal Report (for brevity APAR) for the year 2008-2009 (01.04.2008 to 31.03.2009). Since this is below the benchmark of Very Good, which is required for her next promotion, she submitted her representation dated 03.03.2010 (Annexure A/6) to the respondent No.3, Director, (Consumer Mobility), Bharat Sanchar Nigam Limited Board, against the adverse entries and final grading given in this APAR. However, her representation has been rejected vide the order dated 06.05.2010 (Annexure A/2), and, her grading has been kept unaltered. The applicant, thereafter, preferred memorial dated 01.11.2010 (Annexure A/7), addressed to the Chairman-cum-Managing Director BSNL, which has been returned to her vide the letter dated 08.08.2011 (Annexure A-3), stating that there was no provision for further appeal against the decision of competent authority in such matters. Hence, this Original Application.
3. The applicant submitted that she has distinguished career, ever since the year 1993 when she became the member of ITS after initial appointment dated 15.02.1993. Some of the important achievements during her career are that, her performance was rated outstanding in the year 1993-1994 by the Telecom District Manager, Raipur; in July 1996, her performance, capabilities and devotion to duty while working as Divisional Engineer, Telecom (Noida), Telecom District, Ghaziabad were recognized as outstanding and she was honoured in a public function in presence of various dignitaries cutting across all Government organizations; and in the year 1999-2000, due to her outstanding performance, she was awarded Sanchar Bhushan on the occasion of World Telecom Day (17th May 2001). Thereafter, in the year 2003, the applicant was awarded prestigious Sanchar Seva Padak on the occasion of World Telecom Day, 2003, for outstanding performance for the past three years i.e. 2000-2001, 2001-20002 and 20002-2003.
4. The applicant further submitted that during 2009-2010 and 2010-2011, her performance has been rated as Very Good. Thus, the applicants performance, throughout her career, has been Excellent. However, though during the year 2008-2009 also she performed very well, her APAR has been given Good grading which is below the benchmark. On perusal of her APAR (Annexure A-1), it will be evident that she has been written the comments of Good mechanically for most of the attributes, indicating thereby that, the respondent No.5 i.e. the reporting officer and the respondent No.4 i.e. the reviewing officer have not done justice to her APAR. She had achieved all the targets given to her during the year and in this regard the reporting officer has agreed with the Part II of APAR, which gives brief description of her achievements during the year. Thus, there was no justification for giving her below benchmark grading of Good for the year 2008-09.
5. As regards to rejection of her representation vide the order dated 06.05.2010 (Annexure A-2), the applicant submitted that her representation has been rejected in a cryptic manner, without assigning any reasons for disagreeing with the issues raised by her in it. The memorial filed by her on 01.11.2010 (Annexure A/7) too has been returned vide the order dated 08.08.2011 (Annexure A-3), stating that there was no provision for further appeal against the decision of competent authority in such matters, even though there is specific provision for it in the instructions issued vide DP&AR OM No.51/5/72-Estt (A) dated 20th May 1972 (Annexure AB/1).
6. The applicant further submitted that in view of her unblemished, and outstanding career the adverse remarks in the APAR deserve to the expunged and below benchmark grading upgraded. It is settled law that before making adverse remarks in the APAR, reporting/reviewing officer should confront the reported officer with his knowledge before forming an opinion to make adverse remarks so that the reported officer gets opportunity either to improve himself or to explain his conduct. However, the applicant was never given indication of any lacuna in her work during the year and despite that her APAR has been downgraded. {Reliance placed on, S.T. Ramesh Vs. State of Karnataka and Another (2007) 9 SCC 436, P.K. Shastri Vs. State of M.P. and Others (1999) 7 SCC 329, State of U.P. Vs. Yamuna Shanker Misra and another (1997) 4 SCC 7 and Sukhdeo Vs. Commissioner Amravati Division, Amravati and Another (1996) 5 SCC 103}.
7. The respondents, in their reply, submitted that the applicant has been awarded Good grading, based on her performance during the year. Her representation against the adverse remarks in her APAR for the year 2008-2009 was sent to the respondent No.5 (reporting officer) and the respondent No.4 (reviewing officer) for getting their comments on it. The respondent No.5 (reporting officer), has submitted his pointwise/Parawise comments on the representation vide letter No. CMTS /113/Disciplinary/ 2009-10/16 dated 21.4.2010. He has stated that, the officer reported upon has not taken any initiative/ interest in carrying out the work during the year. It is habit of the official to not to respond on mobile phone whenever contacted during office time, resulting in delay in works and carrying out the work by self or through subordinates directly. There was delay in establishment of office which itself shows lack of interest of official works. She was not able to take work from her subordinates in full capacity and had not taken any responsibility for the project. She is not willing to take any responsibility and is having nature to avoid and transfer the responsibility to either lower staff or to higher authority. Staff under her was not motivated at all. No initiative has been taken by the officer during this period, and her response to public was not at all good. Either no response was given to the public or when given it was not satisfactory. She keeps on shirking from responsibility taking stand that the work does not pertain to her. The reporting officer claimed that many such complaints/calls were received by him during this period.
8. The reviewing officer, in his comments stated that, the APAR of the applicant for the period April 2008 to March 2009 was reviewed and the grading of Good was accepted keeping in view the factual observation on her performance, behaviour and work output. The office of GM (CM-NWP) was opened in Sector-I Bhilai and instructions were got conveyed to DGM (CM-NWP) to shift the office from M/W Building Durg to Sector -1 Bhilai but the officer has not shifted from M/W Building Durg till date causing unnecessary delay in office works and improper coordination in execution of planning and administrative work related to CM- NWP section. Thus, the gradation of Good in the APAR of the officer for the said period is fair and just.
9. Thus, the respondents submitted that, after getting the responses of reporting officer and reviewing officer, the competent authority considered her representation and rejected it vide the reasoned order dated 06.05.2010 (Annexure A/2). As far as her memorial against the rejection of her representation is concerned, she has been informed vide the letter dated 08.08.2011(Annexure A-3) that there is no provision of filing such a memorial against the decision of competent authority on representation of the applicant.
10. In regard to claim of the applicant that her performance has been outstanding all along her service period, and therefore, she deserves to be granted above benchmark grading of Very Good, for 2008-09 also, the respondents submitted that overall performance of an officer varies from year to year. Even the facts stated by her in the Original Application show that her work performance has varied from year to year. In any case, performance of an officer can be assessed most suitably by the reporting officer and reviewing officer. In this case, the applicants representation has been duly considered and decided through a reasoned order. Thus, there is no substance in the Original Application which deserves to be dismissed.
11. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith.
12. On perusal of APAR of the applicant for the period 01.04.2008 to 31.03.2009, we find that she has been commented Good in regard to most of the attributes and graded Good in the overall rating. This grading of Good has been retained by the Reviewing Officer also. The applicant submitted detailed representation dated 03.02.2010 (Annexure A/6) to the competent authority in this matter. Her representation was considered by the competent authority, after taking comments of reporting officer and reviewing officer on the representation, and rejected vide the order dated 06.05.2010 (Annexure A-2), maintaining the comments and grading in the concerned APAR.
13. The learned counsel for the applicant, while arguing on the matter, submitted that according to the reply filed by the respondents the reviewing officer justified Good grading on the ground of applicant not being able to shift the office from M/W building Durg to Sector 1 Bhilai despite clear orders for it. But the order to make this shift was issued vide order dated 13.04.2009, which is beyond the period of 2008-09 APAR. Thus, the comments of reviewing officer were based on an activity which was beyond the period under assessment. However, we find that in para 3C of the reply, the comments of the reviewing office on the representation of applicant have been given, wherein, it is mentioned that the grading of Good was accepted keeping in view the factual observation on the performance, behaviour and work output. The applicant has filed the copy of letter dated 15.01.2010 (Annexure AJ/8), in which the General Manager (NP-CM) reprimands her for not shifting the office even 8 months after the order. This only supports the claim of reporting officer, as mentioned in the reply of respondents, regarding the attitude to work of applicant.
14. The applicant has contended that her performance has been outstanding all along her service period, and therefore, grading of Good for 2008-09 is like a downgrading to her. She has mentioned many of her achievements in Para 4.2 and 4.3 of the Original Application. This shows that while during some of the years, her performance was outstanding, this can not be claimed about all the years during this period.
15. The applicant has submitted copies of her APAR for 2009-10 and 2010-11, wherein she has been graded Very Good. On perusal of these APARs, we find that for these years, numerical system of assessment has been used. In 2009-10, for Part A, work output, both the reporting officer as well as reviewing officer have given her 6 out of 10. In Part B, of Personal Attributes, while reporting officer gave her 5.5, the reviewing officer gave her 6. In the Part C of Functional Competency while the reporting officer gave her 5.5, the reviewing officer gave her 6.3. Thus, in overall assessment while the reporting officer gave her 5.7 which meant Good grading, the reviewing officer upgraded it to 6.1 making it Very Good. Here it will be appropriate to mention that grading from 4 to 6 is Good, while 6 to 8 is Very Good. Thus, the reviewing officer, marginally upgraded some of the marks in assessment of Part B and C of APAR, so that overall grading comes just above 6, thereby making it Very Good. As against this, in the year 2010-11, both the reporting officer and reviewing officer have given her overall grading of 6.3, and thus, she is categorized as Very Good. Therefore, assessment of the applicant for 2009-10 and 2010-11 can not by considered to the substantially different from that of 2008-09.
16. In the case of S.T. Ramesh (supra), the appellant officer was downgraded to average for a short period of 150 days, while he had excellent gradings before and after that period. Thus, it was held by the Honble Apex Court that having regard to unblemished and outstanding career of appellant, the adverse remarks deserved to be expunged. As against this, in the instance case, the applicant has been graded Good for 2008-09, which is not substantially different from her gradings before and after this period. Therefore, the facts and circumstances of the instant case are distinguishable from the case of S.T.Ramesh (supra). The judgements of Yamuna Shanker Misra and another (supra), P.K. Shastri (Supra) and Sukhdeo (supra) are also distinguishable from the instant case on the facts and circumstances, and therefore, these citations are not of any help to the applicant.
17. In any case, the representation filed by the applicant against her APAR for 2008-09 has been duly considered and decided by the competent authority, after obtaining comments from the reporting officer and reviewing officer on it, through the reasoned order dated 06.05.2010 (Annexure A-2). There are no allegations of malafide against either the reporting officer or reviewing officer in this case. Therefore, we do not find any justification for interfering with the impugned orders of the respondents.
18. Thus, the Original Application is dismissed, with no order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member kc 8 Sub: ACR OA No.776/2012 Page 8 of 8