Central Administrative Tribunal - Allahabad
Janardan Shriram vs State Of Up & Ors. (Air 2000 Sc 3299) After ... on 19 May, 2011
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD (THIS THE 19th DAY OF MAY 2011) HONBLE DR. K. B. S. RAJAN, MEMBER (J) HONBLE MR., S. N. SHUKLA, MEMBER (A) Original Application No. 275 OF 2002 (U/S 19, Administrative Tribunal Act, 1985) Janardan Shriram, S/o (Late) Shri Verma, Aged about 59 years, R/o 132-B, Shyam Nagar, Kanpur 208 013 and working as Technical Officer B in Defence Materials and Stores Research and Development Estt. (DMSRDE), DMSRDE PO., GT Road, Kanpur-208 013. Applicant VE R S U S 1. Union of India through Secretary Ministry of Defence, Govt. of India, New Delhi. 2. The Scientific Adviser to the Minister of Defence and Director General Research and Development, Office of the Scientific Advisor to Minister of Defence, Defence research and Development Organization, Ministry of Defence, Govt. of India, South Block, New Delhi-110 011. 3. The Director, Defence Materials and stores Research and Development Estt. (DMSRDE), DMSRDE, PO., GT Road, Kanpur 208 013. ..Respondents Present for the Applicant: In person. Present for the Respondents: Sri Ajai Singh. Sri R. D. Tiwari. O R D E R
(DELIVERED BY HONBLE DR. K. B. S. RAJAN, MEMBER (J)) The applicant is presently working as Technical Officer B (Gazetted A, Non-ministerial) in Defence Materials and Stores Research and Development Establishment (DMSRDE), Kanpur. According to him, he possesses much higher qualifications, experience and expertise in contrast to those prescribed in Scheduled II of DRDO Technical Cadre Recruitment Rules 2000. The applicant was Junior Scientific Officer (Group B, Gazetted) and his services were governed by DRDO (JSOs) Recruitment Rules, 1980 when he was brought under the purview of DRTC 1995. Due to the wrong policies of the Respondents, the career prospects of Junior Scientific Officers (Gazetted) were very badly affected and their stagnation in turn affected the feeder posts, and there was resultant stagnation which generated grave resentment amongst the employees of the whole cadre including JCOs. The applicant was subjected to appear in the interview without necessity for up-gradation to Technical Officer B conducted as per DRTC 1995 (SRO0177) and was declared successful in first attempt and placed in the upgraded post w.e.f. 01.09.1995. Respondent No. 3, vide their letter dated 18.06.2001, called the applicant to appear for an interview from Technical Officer B to Technical Officer C, scheduled on 17.07.2001 but he was not declared successful for the post of Technical Officer C along with others. That per Rule 6(3) of DRTC 2000 the employees shall be promoted on the basis of their overall merits as decided by the assessment board, is misleading. DRTC Rules 2000 and the guidelines do not provide for the manner/methodology of evaluating quantitatively the overall merit which is left to the discretion of individual assessment board. The presence of the Director makes the board more biased/prejudiced because he does final rating of the Annual Confidential Report (ACRs), makes briefing to the Board about the candidate and the Board succumbs to his wishes. The applicant has strong convictions for his being unsuccessful in the interviews because of the biased/prejudicial attitude of Respondent No.3. That the respondents did not disclose the manner/methodology of evaluation in DRTC 2000 (SRO 296) and the same omission has been most often used as a tool to curve the voice of the honest and dedicated employees irrespective of their expertise, qualification, length of service and other positive factors and making them to supersede by their juniors, less qualified /length of service or any expertise. The applicant being aggrieved by the impugned up-gradation orders wanted to represent against, for which he needed some relevant documents for the preparation of a proper and effective representation, which he demanded verbally and through his application dated 12.09.20001. The documents were not supplied to him but he anyhow submitted his representation on 24.09.2001 addressed to Respondent no.2. On 23.10.2001, the applicant also sent copied of the applications/representation to respondent No.1 to intervene so that the applicant gets relief as per his representation dated 24.09.2001. The applicant again submitted a representation dated 01.01.2002 to Respondent No.3 to review his decision and supply the demanded documents but he, in order to cause delay, sent his application to Headquarters. Other Respondents also did not care to reply to the representation dated 24.09.2001 so far. Hence, this O.A.
2. Respondents have contested the O.A and filed Counter Affidavit stating therein that the Defence Research & Development Organization (DRDO) framed rules for technical wing vide SRO NO. 177/95 which replaced the recruitment rules for 29 posts, which have been included in DRTC (Annexure-R-1). The post of JSO was a Group B (Gazetted post). The post of JSO (`2375-3750) used to be filled by promotion from the post for Foreman (`2375-3500), Senior Scientific Assistant (`2375-3500) and Chief Draftsman (`2375-3500) in a specified ratio. As there were bottlenecks at various levels, the promotion chances differed both inter and intra streams. It was, therefore, decided to reorganize and restructure the Group B and Group C scientific and technical posts. Thus, the rules have been superseded by SRO 296/2000 with some minor modifications. With the promulgation of DRTC rules, the Technical, Scientific and Draughtsman streams alongwith the posts of Junior Scientific Officer and other isolated posts as mentioned above have been restructured to form unified technical cadre with the main objective of providing better overall career progression to the employees. In the new scheme, the existing vacancy based promotion systems has been replaced by a merit promotion system based on limited flexible complementing, totally de-linked from occurrence of vacancies. In the new scheme, two additional Group A category in the pay scale of `2200-4000 and `3000-4500/- have also been created and included in the cadres thus providing higher career opportunities. The existing structure has been re-organized by retaining six existing pay scales and by adding two Group A pay scales. Those individuals who have been placed in a post, the pay scale of which is different from their own pay scales have an option under FR 23 to retain their old pay scales as personal to them. The provision safeguards the interest of the employees and no individual has been put to a financial loss on his placement in the new cadre. The applicant was working as JSO at the time of implementation of DRTC rules in 1995. As per Rule 6 of the said rule, he has been placed as TO A. The applicant was eligible for to be assessed for the post of TO B. He was assessed and found fit by the Assessment Board and promoted TO B w.e.f. 01st September, 1995 vide promotion order dated 06.12.1996. Subsequently as per provision of SRO 296/2000, he was called for assessment during the year 2000 and 2001 for promotion TO C. However, he could not be promoted as he was not high enough in the merit list. The individuals are assessed based on the last 5 years C-PARs and performance in the Assessment interview Board. Weightage of 50% each is given and the final merit is drawn. Thus, the applicant has no case.
3. Applicant filed the Rejoinder Affidavit stating therein that the respondents averment that the applicant was not high enough in the merit list and the applicant failed in interviews is strongly opposed. That the interviews/assessments were conducted twice in the year 2001 which is in violation of DRTC Rules. Retrospective implementation of recruitment rule is contrary to Supreme Court judgments. Respondents illegally conducted the interviews as per provision of Revised Guidelines 2000- Not as per Statutory Rules DRTC-2000.
* DRTC 2000 is a scheme based on restructuring of Cadre, where upgradations are not promotion in normal sense. The statutory rules failed make any distinction in the terms upgradation and promotion though these are based on principle of upgradation.
* The Respondents should have followed the basis of Seniority cum fitness (non-selection) for making upgradation from the existing to higher grade.
* Even if they decided to hold interviews/assessments they should have not followed the arbitrary provisions of the Revised Guidelines 2000 which in its para 6.4 stated Assessment for promotion to various grades will comprise of interview and C-PAR which will be given a weightage of 50% each.
* The Honble Supreme Court in Ajai Hasias case in its para 20 held We may point out that, in our opinion, if he marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant question are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criteria of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee. * The respondents have not produced the tape-recorded interview of the candidates who appeared in the interview during February, 2001 and July 2001 and so the applicant be deemed amongst the successful candidates in the interviews held in February, 2001 and declared upgraded since 1.9.2000 with all consequential benefits.
* The revised guidelines laid down for carrying out interview mainly to test the personality of the candidates. Even, if it is necessary to conduct via-voce test the post separately, from the interview, if any. It should be conducted only by the persons well versed in the subject and the question put to candidates should be of equal difficulty.
4. Written submission has also been filed by the applicant stating therein that the applicant individually and as the President of DRDO Scientific Officers Association actively fought for justice against illegal induction of JCOs (Gp. B Gazetted) with the feeder Non-Gazetted posts, anomalies in pay scales through representations whereby the applicant earned ill will of the Respondents. The respondent No.3 being prejudiced, instead of supplying the documents sent the applications to the PEACE. Because of the prejudicial attitude of Respondents No.3 the applicant lost all hopes of getting the documents. The applicant apprehends that he has been denied his legitimate right because of prejudicial attitude of the Respondents and the statutory rules implemented through arbitrary Revised Guidelines 2000 which provided scope and immense power to Respondents to favour any one they like. The impugned orders are illegal, irrational and a classic case of procedural impropriety and hence fit for judicial scrutiny so that the applicant is upgraded from the date of his juniors 1.09.2000 with consequential benefits. The applicant has to his credit 38 years experience working in his field at DMSRDE, Kanpur and was consulted in the efficient management of the Division. An extract from the letter dated 1.1.2002 addressed to the applicant by Head of the Division will prove the contention of the applicant. The Director and the other senior officers of the establishment have appreciated our contribution in the conclusion of such events. All this would not have been possible without untiring efforts of our colleaguesMany a time, we have discussed the requirement of additional manpower in our Division to cope up with ever increasing workload and for posting substitutes with some of our senior colleagues who would be superannuating in the near future. The grounds of malafides and harassment have been stated in the representation of the applicant dated 24.9.2001. The applicant has also challenged the criteria of the assessment of giving weight-age to interview and C-PARs of 50% each in para 6 of the representation[Annexure-18A of Compilation No.2] see also Annexure 7,9,10,11,13,14 of Compilation No.2] The Respondents conducted interview/assessments as per arbitrary, unreasonable an constitutionally invalid criteria in the Revised Guidelines 2000 which provided ample scope to the respondents for favoritism, nepotism and chose they like. Allocation of More than 15% for oral interview is arbitrary even in pubic employment (AIR 1981 SC 487). Respondents allowed only 6-8 minutes time for interview/Assessment. The Honble Supreme Court in Miss Arti Sapru etc., petitioners v. State of J.K. & Ors, AIR 1981 SC 1009 held that Allocation of 30% for viva voce examination out of total marks. Time spent on each candidate not more than four minutes, is arbitrary and illegal. Arbitrariness in the impugned assessments.
5. Counsel for the respondents has also filed the Written Arguments stating therein that as per the rules prior to issue of SRO 177/95 (DRTC), promotions used to be based on occurrence of vacancy, whereas as per DRTC scheme (SRO 177/95) promotions have been de-linked from occurrence of vacancy and are merit based. The promotions in DRTC scheme are not based on automatic upgradation but a certain percentage of those eligible have been stipulated who could be promoted to the next grade in annual assessment. For the relevant grade i.e. T.O B to T.O C 25% of those eligible are finally promoted as per merit. There is no automatic upgradation of posts. That in view of the above all the actions taken by the Respondent are in conformity with various Rules and instructions in this regard. The applicant has utterly failed to come forth with any cogent grounds for filing the present original application before this Honble Court. The very averments made by the applicant are based on the surmises and conjuncture and in any view of the matter, cannot be substantiated by the applicant and as such, the claim of the applicant deserves to be dismissed on the ground of concealment of material evidence.
6. The written arguments were considered and other documents perused. The legal issue involved in this case reduces to only the following:-
(a) Whether the retrospective effect given to the SRO 296 from 01-09-2000 as contained in para 1(2) of the said SRO is legally valid.
(b) Whether marks of 50% for interview and 50% for APAR for promotion to the higher post would be legally valid.
7. In so far as retrospective effect of the recruitment rules is concerned, the same is permissible as held by the Apex Court in a number of its decisions. The only rider is that such a retrospective effect shall not take away the accrued rights of any individual already available earlier. In the instant case, no such accrued right had been specified which has been denied to the applicant. The cases are as under:-
(a) G. Nagendra v. State of Karnataka, (1998) 9 SCC 439,
3. It is seen that the Rules are framed under Article 309 of the Constitution and it is too late in the day to dispute that such Rules cannot be given retrospective effect. Therefore, the Tribunal was not right in holding that the Rules shall be valid only with effect from the date on which it was published. On the premise that the Rules cannot be given retrospective effect the promotion given to the appellant was quashed by the Tribunal. Since we have held that the Rules can be given retrospective effect, that part of the order of the Tribunal quashing the promotion given to the appellant is set aside. We make it clear that the direction given by the Tribunal in para 6 of the order under appeal to consider the case of the third respondent herein (applicant before the Tribunal) for promotion as on 6-3-1981 stands undisturbed. Accordingly, the appeal is partly allowed with no order as to costs.
(b) State of M.P. v. Yogendra Shrivastava,(2010) 12 SCC 538 :
15. It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing Rules cannot be taken away by amending the Rules with retrospective effect. (See N.C. Singhal v. Armed Forces Medical Services ; K.C. Arora v. State of Haryana6 and T.R. Kapur v. State of Haryana.) ) Tejshree Ghag v. Prakash Parashuram Patil,(2007) 6 SCC 220 :
It is true that the State has the power to alter the terms and conditions of service even with retrospective effect by making rules framed under proviso appended to Article 309 of the Constitution of India, but it is also well settled that the rules so made ordinarily should state so expressly.
8. In so far as interview marks are concerned, certainly where there is written examination, then the percentage of marks for interview is expected to be comparatively low so as to ensure that favouritism is not shown. However, where there is no written examination and the selection is based on viva and service records, there is no such restriction. In this regard, the following decisions of the Apex Court are relevant.
(a) Siya Ram v. Union of India, (1998) 2 SCC 566, The Selection Board consisted of high-ranking officials, well versed with the requirements of the post to which promotion was to be made. Norms had been laid for the Selection Board to follow. No fault can be found with the same. Apart from the objection that excessive marks had been allocated for viva voce, the appellant has been unable to point out any illegality or irregularity in the selection process. Functions and duties attached to the post of Chief Personnel Inspector have nowhere been set out. It is not for this Court to suggest as to what marks should be allocated for interview in a case like the present one. As noted above, at times for certain posts only interview is considered to be the best method for selection. We are thus of the opinion that selection made for the two posts of Chief Personnel Inspector in the present case was according to the Rules. There is no infirmity in the selection process for us to interfere in the appeal. The impugned judgment of the Tribunal is a well considered one. It was, however, not necessary for the Tribunal to make observations from which the appellant sought to draw strength. We do not find any merit in the case of the appellant and would uphold the judgment of the Tribunal. The appeal is dismissed with costs.
(b) Kiran Gupta v. State of U.P., (2000) 7 SCC 719
26. In Siya Ram v. Union of India one of the grounds of attack was that the rules regarding selection for the post of Chief Personnel Inspector in Railways, permitted only oral test in the form of viva voce and no written examination was held. It was contended that the result of a selection merely on the basis of viva voce could not be reasonably fair and was liable to lead to arbitrariness. There, out of 100 marks, 50 were allotted for professional ability without prescribing any norms. While rejecting the contention, this Court, following the Lila Dhar case held that at times for certain posts only interview was considered to be the best method of selection.
(c) In Kiran Gupta & Ors. Vs. State of UP & Ors. (AIR 2000 SC 3299) after scanning the entire law on the subject, it had been held that when the traits as prescribed by the guidelines drawn up by the Commission are in numerous and to be kept in mind in evaluating a candidate for his suitability and fitness for being appointed to the post, it may not be necessary that marks are to be allocated individually in respect of each of the qualifications so prescribed. The Court had rendered an opinion that an overall evaluation rather than awarding of marks for each item will be more productive.
38. Mr. Jacob Verghese, had brought to our attention a few decisions which we find, offer better assistance and materials for us to conclude that there has not been any arbitrariness in the methodology adopted. Adverting to Lila Dhar Vs. State of Rajasthan (1981 (4) SCC 159), it is pointed out that the Supreme Court had indicated that in respect of mature personalities, an interview might be the best and only way to pick the best person. Court had also observed that unless found as arbitrary, it is for the Administration to choose the method that is best suited to pick up the most eligible person. In fact, the Court may not be in a position to sit in judgment over the wisdom employed. The senior counsel had also relied on All India State Bank Officers Federation and Ors. Vs. Union of India & Ors. ( cited supra), where more or less such a method of selection was found as acceptable. Referring to Osmania University Vs. Abdul Rayees Khan and Anr. (1997 (3) SCC 124), counsel pointed out that the Court should refrain from interfering in the academic selection made if it is done after following the prescribed procedure. The objectivity depends on the facts and circumstances of each case. The Court had also indicated that as far as the superior posts were concerned, awarding of formal marks itself was not necessary. In C.P. Kalra Vs. Air India (1994 Supp (1) SCC 454), the counsel points out that observation made showed that there cannot be any hard and fast rule for allotment of marks for selection of Station Superintendent. The award of 40% marks was not found as excessive. However, we do not think the other observations made there are relevant.
39. In Anzar Ahmad Vs. State of Bihar & Ors. (1994 (1) SCC 150), the Supreme Court had pointed out that selection for employment and methodology adopted for admission to Educational Institutions require to be assessed with different yardsticks alone. A weightage for viva-voce procedure as far as public employment is concerned, could not have been objectionable; only fairness had to be ensured.
40. A scan made as above of the authorities available, therefore, according to us, compel us to come to conclusion that there may not be justification for alleging that there was arbitrariness in the selection process employed. While dealing with the specific issues formulated for consideration, we answer the reference by holding that it would have been possible to rest a selection on an interview alone, as far as superior posts were concerned. The Supreme Court had made the position clear as early as in 1981 in Leela Dhar Vs. State of Rajasthan (1981 (4) SCC 159).
? ?? The applicant has certainly taken pain to produce a number of decisions and various legal issues such as bias etc., These do not count in this case for, the retrospective effect of amendment is not keeping in view the career prospect of the applicant alone. Again, so far as interview is concerned, here again, there being no link between the vacancies and promotion. The respondents have zealously stated that the applicant qualified in the first attempt itself when he was promoted from TO B to TO C. Para 2(ix) of the counter refers. But when it came to the next promotion, he could not be promoted as he was not high enough in the merit list. This statement does not mean that he was in the merit list but was not high as contended by the applicant in his written arguments. All that the respondents wanted to convey is that he was not found fit for promotion.
10. The selection committees assessment normally cannot be brushed aside nor could the court sit in appeal over such assessment. In this regard, the following decision of the Apex Court in the case of M.V. Thimmaiah v. UPSC,(2008) 2 SCC 119 is apt to be mentioned:-
Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion. ?
11. Thus, we are of the concrete view that no legal flaw could be discerned in the action of the respondents in not promoting the applicant. The OA is, therefore, devoid of merits and is thus dismissed. No costs.
MEMBER (A) MEMBER (j)
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