Central Administrative Tribunal - Jodhpur
Dr Mala Rathore vs M/O Environment, Forest & Climate ... on 7 August, 2024
1 (OA No.290/00227/2015)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00227/2015
Miscellaneous Application No.290/00128/2015
Pronounced on : 28.08.2024
(Reserved on : 07.08.2024)
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. AMIT SAHAI, MEMBER (A)
Dr. Mala Rathore, W/o Sh. Rakesh Singh Chauhan, aged about 49 years,
R/o House No.2 Type V, Arid Forest Research Institute Campus, New
Pali Road, Krishi Upaj Mandi, Jodhpur-342005. Presently working on
the post of Scientist „D‟ in AFRI, Jodhpur.
.......Applicant
By Advocate: Mr. S.K. Malik.
Versus
1. Union of India through the Secretary, Ministry of Environment,
Forest & Climate Change, 6th Floor, Jal Indra Paryavaran Bhawan,
Jor Bagh Road, New Delhi-110003.
2. The Director General, Forest & SS, Ministry of Environment,
Forest & Climate Change, 6th Floor, Jal Indra Paryavaran Bhawan,
Jor Bagh Road, New Delhi-110003.
3. The Director General, Indian Council of Forestry Research &
Education, P.O. New Forest Dehradun, Uttarakhand.
2 (OA No.290/00227/2015)
4. The Director, Arid Forest Research Institute (AFRI), Krishi Upad
Mandi, New Pali Road, Jodhpur.
5. Dr. Ranjana Arya Scientist „G‟ NWFP Division, Arid Forest
Research Institute (AFRI), Krishi Upaj Mandi, New Pali Road,
Jodhpur.
........Respondents
By Advocate: Mr. K.S. Yadav
Mr. Mukesh Kataria, proxy counsel for Mr. Rajendra
Kataria.
ORDER
Hon'ble Dr. Amit Sahai, Member (A)
1. Being aggrieved by impugned order dated 28.02.2008 communicating her adverse ACR for 2006-07 (Annexure A/1) and orders dated 07.09.2009 (Annexure A/2) and dated 22.09.2015 (Annexure A/2(a)) whereby the applicant alleged to have been denied promotion to the post of Scientist „E‟ and Scientist „F‟ under Flexible Complimentary Scheme, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with a prayer to quash and set aside these orders and to allow review DPC.
2. Facts of the case in brief are as under:-
2.1 The applicant was initially appointed on the post of Scientist SC, now designated as Scientist „B‟ in the pay scale of Rs. 2200-4000/- on 3 (OA No.290/00227/2015) 03.05.1993. Thereafter, she was promoted on the post of Scientist SD in the pay scale of Rs.10,000-15200/- w.e.f. 01.07.1998. Again, she was promoted on the post of Scientist „D‟ under Flexible Complimentary Scheme (FCS) in the pay scale of Rs.12,000-16500/- on 01.07.2004 revised to Rs.15600-39100 + GP of Rs.7600/- under 6th CPC. Lastly, she was granted MACP in the pay scale of Rs.37400-67000 + GP of Rs.8700/- w.e.f. 01.07.2014.
2.2 It is averred by the applicant that she had complained on 07.09.2007 (Annexure A/3) to respondent no.4 against respondent no.5, who was immediate supervisor of the applicant about harassment and requested to take necessary action against her. The respondent no.5, vide impugned Memo dated 28.02.2008 (Annexure A/1) communicated adverse remarks in ACR for the period from 01.04.2006 to 31.03.2007.
Thereafter, the applicant represented on 04.04.2008 against the adverse remarks communicated vide impugned Memo dated 28.02.2008. After a period of 1 ½ years, the respondents vide impugned order dated 07.09.2009 (Annexure A/2) rejected the representation of the applicant, stating that the initial assessment made in the ACR of Dr. Mala Rathore, Scientist „D‟ for the period 2006-07 may be left to stand. 4 (OA No.290/00227/2015) 2.3 Aggrieved by the impugned order dated 07.09.2009, applicant filed an appeal through proper channel on 01.04.2010 (Annexure A/5) and requested to quash and set aside the impugned order and expunge the adverse remarks in her ACR. The respondents vide letter dated 06.07.2010 (Annexure A/6) returned the appeal back to the applicant on the ground that her representation has already been rejected by the respondent no.2. Thereafter, applicant through letter dated 23.07.2010 (Annexure A/7), requested the respondents to inform her a competent authority with whom the appeal lies. Applicant was informed that respondent no.1 is the competent authority and so, the applicant requested respondent no.4 to forward her appeal to respondent no.1 to consider the same at the earliest. Since nothing was heard on her appeal, applicant submitted reminder on 20.10.2011 (Annexure A/11). On 26.09.2012, respondent no.1 asked respondent no.3 to explain the delay of two years in forwarding the appeal of the applicant. Receiving no reply from the respondents, applicant requested the respondents on 14.10.2014 (Annexure A/14) for a decision on her appeal. Thereafter, the respondents vide letter dated 03.12.2014 (Annexure A/15) addressed to Secretary, ICFRE requesting to pursue the case with MOEF & CC for early decision on the appeal of the applicant. The respondent 5 (OA No.290/00227/2015) no.1 vide impugned order dated 22.09.2015 (Annexure A/2(a)) rejected the appeal of the applicant. Since the grievance of the applicant was still not resolved, applicant had no other option except to approach this Tribunal by way of filing the instant OA for redressal of her grievance.
3. In the reply filed on behalf of respondents no.1 to 4, it has been stated that the Indian Council of Forestry Research and Education, Dehradun (ICFRE) is an autonomous body under the Ministry of Environment, Forest and Climate Change, Govt. of India. The promotion of the scientists in ICFRE is governed under the Flexible Complimentary Scheme (FCS) Rules as modified/amended from time to time as per the guidelines/directives of MoEF&CC and approved by the Board of Governors of ICFRE. The total sanctioned strength of Scientists in ICFRE is approximately 280 and the ICFRE is headed by the Director General ICFRE, who is the Chief Executive Officer appointed by the Govt. of India with the approval of ACC. 3.1 As per the reply the recruitment and promotion of all the Scientific Group „A‟ posts in ICFRE are governed as per the provision of the Indian Council of Forestry Research Education Group „A‟ (Scientific Posts) Rules, 2001 as amended from time to time. The upgradation to next higher grade/promotions for the scientists in ICFRE 6 (OA No.290/00227/2015) under the FCS Rules is merit based and not based on seniority. An individual scientist, if found eligible for promotion as per provision of rule, is upgraded to the next higher grade after the successful assessment and carries the same post along with him/her.
3.2 The applicant was working as Scientist „D‟ in AFRI, Jodhpur and was posted in the Non-Wood Forest Products Division of the institute. She was assigned the responsibility to work in Arid and Semi-Arid region of Rajasthan and Gujarat and to publish research findings for the benefit of farmers and foresters of this area. According to the assessment made by the Head of Division, the applicant was just average during 2006-07 as she had small targets and was unable to take initiatives. Moreover, she was not able to publish any good paper though she was handling one project. The ACR of the applicant for 2006-07 was reported/written by the Head NWFP Division, reviewed by the then Director AFRI, Jodhpur and was accepted by the DG, ICFRE. In the said ACR, the adverse remarks of the reporting officer were communicated to the applicant vide Memo dated 28.02.2008 after this ACR was accepted by the DG, ICFRE.
3.3 The adverse remarks in the ACR of the applicant for the year 2006-07 were appealed against by her to the Ministry of Environment, 7 (OA No.290/00227/2015) Forest and Climate Change. The Ministry vide letter dated 07.09.2009 informed that the initial assessment made on the ACR of the applicant for the year 2006-07 by the Reporting, Reviewing and accepting authorities may be left to stand.
3.4 The applicant preferred another appeal against the decision of the DGF & SS (& Vice Chairman, BOG, ICFRE). It was decided that the reporting officer have furnished detailed comments justifying her assessment and pointed out that the assessment of her ACR for 2006-07 was made on the basis of her academic pursuits and performance. According to the respondents the applicant simply tried to divert the matter by making malicious and baseless allegation on the reporting officer. The competent authority in the Ministry after careful examination of the records rejected the appeal vide speaking order dated 22.09.2015.
3.5 The FCS is not seniority but merit-based scheme and the applicant was upgraded to the grade of Scientist „D‟ w.e.f. 01.07.2004. Therefore, on completion of her 04 years residency period in the grade was considered for review/assessment for in-situ up-gradation to the grade of Scientist „E‟ on 01.07.2008. Since she could not secure minimum prescribed percentage of marks i.e. 85% as per ICFRE Group „A‟ 8 (OA No.290/00227/2015) (Scientific Posts) Rules, 2001, the Screening Committee in its meeting held on 03.09.2009 screened her out as on 01.07.2008. On completion of one year, the applicant was again considered for review/assessment as on 01.07.2009 but she could not secure minimum prescribed percentage of marks. i.e. 80%, therefore, the Screening Committee screened her out as on 01.07.2009. Subsequently, on completion of another year the applicant was again reviewed/assessed on 01.07.2010, she could not secure minimum prescribed percent of marks and therefore was again screened out as on 01.07.2010. From 01.01.2011, the ICFRE Group „A‟ (Scientific Posts) Rules, notified vide Notification dated 24.08.2011 were implemented in ICFRE. According to these rules all scientist eligible and who meet the benchmark of „Good‟ for scientist „C‟ and „Very Good‟ for Scientist „D‟ and above would be screened in and the Committee to evaluate work of the Scientist on the basis of Annual Work Report and ACRs. The applicant was not able to cross the prescribed benchmarks „Very Good‟ in ACRs and Work Report as on 01.07.2011, 01.07.2012 and 01.07.2013. Therefore, she was not upgraded to the higher grade under FCS.
3.6 The respondents further averred that as per Clause 6.1 of ICFRE Group „A‟ (Scientific Posts) Rules, 2001, all Scientists are screened by 9 (OA No.290/00227/2015) the Screening Committee, on the basis of grading in the ACRs for consideration for promotion. The ACRs were assessed on a 10 point scale giving 10 marks for „Outstanding‟, 08 marks for „Very Good‟, 06 marks for „Good‟, 04 marks for „Average‟ and Zero for „Poor‟ and only those Scientists who satisfy the minimum residency period linked to their performance as indicated in the Table below, were screened in:
Scientist „D‟ to „E‟ Number of Years Percentage
4 85% 5 80% 6 75%
4. Heard learned counsel for the parties and perused the material available on record.
5. It is the case of the applicant that due to mala fide intensions and biased approach of Reporting Officer, her ACR of 2006-07 was not assessed objectively and the Reviewing, Accepting and Appellate Authorities mechanically endorsed the initial assessment. This adverse ACR has been the cause of immense loss to her since she could not be screened to the next higher promotion to Scientist „E‟. During the 10 (OA No.290/00227/2015) arguments the learned counsel for the applicant cited the following two judgements of the Hon‟ble Apex court claimed by him to support the applicant‟s case -
i. State of U.P. v. Yamuna Shanker Misra, (1997) 4 SCC 7 : 1997 SCC (L&S) 903; and ii. State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 :
1999 SCC (L&S) 313
6. It is seen from the records that the applicant‟s ACR for the period from 01.04.2006 to 31.03.2007 was self-assessed and submitted by her to the Head of her Division and the Reporting Officer on 16.04.2007. Whereas, her Reporting Officer assessed her performance on 22.04.2007 and forwarded the ACR to the Reviewing Officer, i.e. to the Director, AFRI, Jodhpur. The Director, AFRI, Jodhpur, reviewed her ACR on 13.05.2007 and forwarded the same to the Accepting Authority, i.e. the DG, ICFRE, Dehradun. The ACR of the applicant for 2006-07 was accepted on 14.07.2007. In this ACR both Reporting and Reviewing authorities have assessed her as „Average‟. The Reviewing authority has specifically mentioned that "Not yet fit for promotion" and „Defer consideration for promotion by‟ - "2 years" (Annexure A/1). The applicant has averred that it is the biased and mala fide intension of her Head of NWFP Division and the Reporting Officer, respondent no.5, 11 (OA No.290/00227/2015) that her assessment has been below par and to establish this she has placed on record her complaint to respondent no.4, dated 07.09.2007 (Annexure A/3) against respondent no.5. This written complaint does not establish the mala fide intensions of respondent no.5, since the assessment in applicant‟s ACR by her was endorsed by the respondent no.4. Moreover, it could also be presumed that due to her „Average‟ performance of which she was aware of, the applicant has alleged biased and mala fide approach towards her by respondent no.5, to gain sympathy of higher authorities, since her complaint is dated much after the acceptance of her ACR for 2006-07.
7. i. In its judgement Hon‟ble Apex court in the case of State of U.P. v. Yamuna Shanker Misra (supra), mentions that-
"7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the 12 (OA No.290/00227/2015) judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
The instant OA is different from the case dealt by the Hon‟ble Apex court, since the applicant has sought relief against her single ACR for the year 2006-07, but has never raised any grievance against the ACRs for the year 2003-04, 2004-05 and 2005-06, for which the Reporting Officer was the same i.e. respondent no.5 (Annexure R/4). Moreover, unlike the case referred the adverse ACR for 2006-07 was communicated to the applicant by the impugned memo dated 28.02.2008 (Annexure A/1), after it was accepted by the respondent no.3.
ii. The judgment of Hon‟ble Apex court in the case of State of Gujarat v. Suryakant Chunilal Shah (supra), does not apply in the facts of the instant OA as it deals with doubtful integrity of the employee, observation of the Hon‟ble Supreme Court as under:-
"5. If the integrity of the officer is doubtful, then his retention in public service cannot be said to be in the public interest. There cannot be two opinions on this question. In such matters it is difficult to accept that the petitioner has been prematurely retired by way of penalty."13 (OA No.290/00227/2015)
8. As per the discussion held in the preceding paragraphs, it is seen that the applicant after completion of her 4 years of residency period was considered for review/assessment for in-situ upgradation to Scientist „E‟ as on 01.07.2008 but was not able to secure minimum prescribed 85% marks as per ICFRE Group „A‟ (Scientific Post) Rules, 2001. As a result, the screening committee in its meeting held on 03.09.2009 screened her out as on 01.07.2008. In this case, the adverse ACR for the period from 2006-07 would have been detrimental for this review. However, in subsequent assessments by the Departmental Review Committee as on 01.07.2009, she was still not able to secure minimum 80% marks even after considering her ACRs for the last 5 years. Similarly, the assessment as on 01.07.2010 while considering the ACRs for the last 6 years, she could not secure minimum 75% marks required for the upgradation to the Scientist „E‟. Therefore, it is evident that the performance of the applicant was also not up to the mark for 6 years, although only one ACR for the year 2006-07 was adverse.
9. It is also seen that from 01.01.2011, the ICFRE Group „A‟ (Scientific Post) Rules, 2001 were implemented in ICFRE and as per these rules Scientists eligible and who met benchmark of „Good‟ for Scientist „C‟ and „Very Good‟ for Scientist „D‟ and above were to be 14 (OA No.290/00227/2015) screened for further promotions based on their Annual Report and ACRs. The applicant was screened out by the review committee on 01.07.2011, 01.07.2012 and 01.07.2013 and so could not be promoted to the post of Scientist „E‟ (Annexure R/14 to R/16). However, the applicant was granted 3rd MACP w.e.f. 01.07.2014 with a Grade Pay of Rs.8700/- (Annexure A/20).
10. The applicant had submitted representation against her ACR for the year 2006-07 which was retained by both Reviewing Officer and Reporting Officer based on quality and quantity of work done by her during the period. As a result, the respondent no.2, the Appellate Authority rejected the representation of the applicant for expunction of adverse remarks in her ACR. Subsequently, the applicant submitted an appeal against the order of the respondent no.2 which was also rejected by respondent no.1 and therefore the final grading „Average‟ was retained in her ACR for the year 2006-07. It is seen that there was no lacuna or procedural lapse on the part of the authorities while deciding representation and appeal of the applicant. Moreover, the adverse ACR was communicated to the applicant once it was accepted by the competent authority. Thus, we are of the view that the instant Original Application lacks merit and is liable to be dismissed. 15 (OA No.290/00227/2015)
11. Accordingly, the instant Original Application stand dismissed. MA No.290/00128/2015 seeking condonation of delay also stands dismissed, with no order as to costs.
(AMIT SAHAI) (RAMESHWAR VYAS) MEMBER (A) MEMBER (J) sv