Central Administrative Tribunal - Delhi
A vs Union Of India on 17 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.3974 OF 2011
New Delhi, this the 17th day of September, 2014
CORAM:
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..
Ashok Golas,
(Belonging to Indian Telecommunication Service Group A)
(Superannuated on June 30,2010)
101-A, Mount Kailash,
New Delhi .. Applicant
Applicant appeared in person.
Vs.
1. Union of India,
through the Secretary,
Department of Telecommunications,
Ministry of Communications & IT,
Government of India,
Sanchar Bhavan,
20 Ashok Road,
New Delhi 110001.
2. The Member (Services),
Department of Telecommunications,
Ministry of Communications & IT,
Government of India,
Sanchar Bhavan,
20 Ashok Road,
New Delhi 110001.
3. The Chairman & Managing Director,
Bharat Sanchar Nigam Limited,
Government of India Undertaking
(Under Department of Telecommunications, Ministry of Communications & IT, Government of India),
Third Floor,
Bharat Sanchar Bhavan,
Janpath,
New Delhi 110001.
Shri Kuldeep Goyal,
ex-CMD, BSNL,
F-703, Aditya Mega City,
Vaibhav Khand,
Shipra Sun City P.O.,
Ghaziabad (Uttar Pradesh) 201014... Respondents
(By Advocates: Shri Rajesh Katyal for Respondents 1 & 2
and Shri Rajnish Prasad for Respondents 3 & 4)
..
ORDER
In this Original Application, the applicant has prayed for the following relief:
Quash and set aside the impugned DOTs non-speaking order no.CS/Adv(HRD)/APAR/2009-10/St.No.386 dated April 4, 2011 wherein Applicants representation against the entries in his APAR for the year 2009-10 was disposed of without due application of mind (Refer Annexure A1).
Quash and expunge below benchmark remarks and inconsistent completion certificates recorded in the Applicants APAR for the year 2009-10 on record with DOT & BSNL that were made due to bias and not based on facts (Refer Annexure A2 and A3).
Direct the Respondents to conduct an inquiry to fix responsibility for delinquent acts of the Reviewing/Accepting Authorities responsible for reviewing/accepting of CRs;
Direct the Respondents to pay cost of litigation as well as mental agony suffered by the Applicant.
Pass any other order and/or directions as this Honble Tribunal may deem fit in the facts and circumstances of this case in the interest of justice.
2. Brief facts of the applicants case are as follows:
2.1 The applicant joined Department of Telecommunications (DOT) on 11.12.1972 as an officer of Indian Telecommunication Service Group A (ITS Group A) recruited through the Engineering Services Examination conducted by the Union Public Service Commission (UPSC) in the year 1971. He was promoted to Senior Time Scale (STS) on 24.12.1976, to Junior Administrative Grade (JAG) on 14.12.1981, to Non Functional Selection Grade (NFSG) on 1.1.1986, to Senior Administrative Grade (SAG) on 1.5.1994, and to Higher Administrative Grade (HAG) on 25.10.2002. While serving in Bharat Sanchar Nigam Limited (BSNL) on deemed deputation basis with effect from 28.2.2003, he retired from service on 30.6.2010 on attaining the age of superannuation. He worked as Chief General Manager (CGM) of National Centre for Electronic Switching (NCES), BSNL, from 22.2.2006 till the date of his retirement, i.e., 30.6.2010.
2.2 The applicant submitted his self appraisal in the Annual Performance Appraisal Report (APAR) for the year 2009-10 to the Reporting Authority Shri Rajesh Wadha, Director (CFA), BSNL Board, on 17.6.2010. The said Reporting Authority reported upon the above APAR on 30.6.2010. The Reviewing Authority recorded his remarks on 18.8.2010. On his representations, copy of APAR for the year 2009-10 was supplied to the applicant, vide BSNLs letter dated 15.11.2010 (Annexure A/5). He made a representation, dated 17.12.2010 (Annexure A/6), to the Secretary to the Government of India, Department of Telecommunications (respondent no.1), along with a detailed note assailing the remarks and/or overall grading given by both the Reporting and Reviewing Authorities on various grounds and also requesting for getting his APAR for the year 2009-10 recorded by the Cadre Controlling Authority as he was working on deemed deputation basis in the BSNL during the period under report. The competent authority, after considering the points raised by the applicant, disposed of the applicants representation dated 17.12.2010, vide order dated 4.4.2011 (Annexure A/1). Being aggrieved thereby, the applicant has filed the present O.A. 2.3 In the O.A., the applicant has mainly urged that his representation was disposed of by the respondents without obtaining the comments from the Reporting Authority on the points urged in the representation; that the respondents treated the comments of an officer junior to the applicant as the comments of the Reporting Authority; that the respondents did not get the remarks of the Accepting Authority; that the Reporting and Reviewing Authorities underestimated his performances during the period under report and graded him as Very Good even though he deserved to be graded as Outstanding, due to personal bias, prejudice and extraneous consideration; that the Reviewing Officer recorded the remarks on 18.8.2010 although he had retired on superannuation on 31.7.2010; that the Reporting and Reviewing Authorities gave remarks in the applicants APAR at their whims and fancies inasmuch as no Memo of Service was issued to him during the period under report; and that his representation dated 17.12.2010 was disposed of by the respondents arbitrarily and without due application of mind.
3. Opposing the O.A., respondent nos. 1 and 2 have filed a counter reply wherein it is, inter alia, stated that the applicants next promotional post was Advisor, for which the prescribed benchmark grading is Very Good. In the ACR/APAR for the year 2009-10 the applicant was graded as Very Good by the Reporting Officer, and the same grading was confirmed by the Reviewing Officer. Shri Kuldeep Goyal, the then CMD, BSNL, who was the Reviewing Officer of the applicant, reviewed the applicants ACR on 18.8.2010. Shri Goyal superannuated on 31.7.2010 and reviewed the applicants ACR within one month of his superannuation as per the DoP&Ts O.M. dated 14.1.1993. As Shri Goyal superannuated on 31.7.2010, his comments could not be obtained. The comments of Shri Rajesh Wadhwa, Director (CFA) were duly taken into account while considering the applicants representation dated 17.12.2010. After examining all the relevant materials, i.e., the APAR, the applicants representation dated 17.12.2010, and the comments of the Reporting Officer, the competent authority disposed of the applicants representation, vide speaking order dated 4.4.2011 stating that the entries as well as grading made by the Reporting and Reviewing Officers in the applicants APAR for the period 2009-10 shall be treated as final for all intents and purposes.
3.1 Respondent nos. 3 and 4, in their counter reply, have, inter alia, taken the same stand as in the counter reply filed by respondent nos. 1 and 2.
4. The applicant, in his rejoinder replies, has controverted the stand taken by the respondents.
5. I have perused the pleadings and heard the applicant in person and Shri Rajesh Katyal, learned counsel appearing for respondents 1 and 2, and Shri Rajnish Prasad, learned counsel appearing for respondent nos. 3 and 4. I have also carefully perused the written note of submissions filed by the applicant.
6. The order dated 4.4.2011 (Annexure A/1), by which the applicants representation dated 17.12.2010, was disposed of by respondent no.1, is quoted below:
Subject: Representation dated 17.12.2010 of Shri Ashok Golas, St.No.386, the then CGM, NCES,BSNL, regarding his APAR for the period 2009010.
ORDER Shri Ashok Golas (Staff No.386), an officer of CGM Grade of ITS Group A has submitted a representation dated 17.12.2010 with regard to entries made an overall grading by the reporting and reviewing officers in the APAR for the period 2009-10 in terms of DOP&T O.M. dated 14.5.2009.
Shri Golas has represented inter alia:
(i) That there has been delay in disclosure of the APAR, the APAR disclosed is not complete, the APAR has not been accepted etc.
(ii) That the APAR has been reviewed by the reviewing authority and certain remarks have been made in the APAR by person other than the reporting/reviewing officer.
(iii) That based on the remarks of reporting officer, the numerical grading be raised to outstanding rather than be qualified with just very good or good only for various attributes.
(iv) That the reviewing officer while making general assessment in the pen picture has contradicted himself.
3. As per DOP&T OM dated 14.5.2009, the comments of reporting officer, i.e., Shri Rajesh Wadhwa, Director (CFA),BSNL has been obtained on the representation submitted by Shri Ashok Golas. The comments of reviewing authority, i.e., Shri Kuldeep Goyal, the then CMD, BSNL could not be obtained since he has retired.
4. All the relevant material, i.e., the APAR 2009-10, the representation dated 17.12.2010 and the comments of reporting officer have been objectively assessed in most dispassionate and fair manner and following has been observed:
(i) That the complete APAR has been disclosed and delay caused in disclosure is due to unavoidable Administrative reasons, since the APAR formats having numerical grading and APAR disclosure certificate printed at p.8 of the APAR format has been placed for the 1st time. Further, there is no system for acceptance of the reviewed ACR.
(ii) That both the reporting and reviewing officers have duly commented in the APAR, however, no provision exists for accepting authority.
5. Accordingly, the representation dated 17.12.2010 is disposed of in terms of the observations made above and the entries as well as the overall grading made by the reporting and reviewing officers in the APAR for the period 2009-10 shall be treated as final for all intent and purposes.
This issues with the approval of competent authority. After going through the applicants representation dated 17.12.2010 together with the detailed note appended thereto and the order dated 4.4.2011 (ibid), quoted above, we find that the competent authority, while disposing of the applicants representation, has duly considered the relevant points urged by the applicant and the comments received from the Reporting Officer, and has assigned cogent and convincing reasons in support of his conclusions. Therefore, it cannot be said that the order dated 4.4.2011 (ibid) has been passed by the competent authority arbitrarily and without due application of mind.
7. The next contention of the applicant is that reviewing of his APAR on 18.8.2010 by the Reviewing Officer, Shri Kuldeep Goyal, the then CMD, BSNL (respondent no.4), who had retired on superannuation on 31.7.2010, vitiates the remarks given by Shri Goyal inasmuch as he should not have recorded his remarks after his superannuation. In Department of Personnel & Administrative Reforms O.M. dated 30.1.1978 and Ministry of Information & Broadcastings O.M. dated 2.1.1986, it has been stipulated that when the Reporting Officer retires or otherwise demits office, he may be allowed to give the report on his subordinates within a month of his retirement or demission of office. In Department of Personnel & Trainings O.M. dated 14.1.1993, the said provision has been extended to the Reviewing Officer to enable him to review the ACRs of his subordinates within one month of his retirement or demission of office. In view of this instruction of the Department of Personnel & Training, the aforesaid contention of the applicant is without any substance and is accordingly rejected.
8. In the APAR for the year 2009-10, both the Reporting and Reviewing Officers have given overall numerical grading 7.8, which is Very Good. The respondents, in their counter replies, have asserted that for promotion to the next higher grade, i.e., Advisor, which is available to officers, like the applicant, in the hierarchy, the prescribed benchmark is Very Good. This assertion of the respondents has not been specifically refuted by the applicant. Therefore, the overall numerical grading 7.8 Very Good would not act as a barrier for his career progression. In view of this, the applicant is not correct to term the overall numerical grading 7.8 as given in his APAR for the year 2009-10 as below benchmark. Consequently, his plea regarding absence of remarks by the Accepting Authority in his APAR is without any substance, more so when respondent nos. 3 and 4 have asserted that there is no provision for obtaining the remarks from the Accepting Authority in BSNL. There is also no substance in the contention of the applicant that without calling for the comments from the Reviewing Officer, his representation dated 17.12.2010 should not have been disposed by the competent authority in the manner as has been done, because Shri Kuldeep Goyal, the then CMD, BSNL, who was the Reviewing Officer of the applicant, had retired on superannuation on 31.7.2010 and therefore, no comments could be obtainable by the competent authority from the said Shri Goyal at the time of consideration and disposal of the applicants representation, vide order dated 4.4.2011. The applicants claim that he should have been graded as Outstanding and not Very Good in his APAR for the year 2009-10 on the basis of assessment of his performances during the period appears to be based on his mere surmises and conjectures. When the Reporting and Reviewing Officers, under whom the applicant was admittedly working during the period, have given him overall numerical grading 7.8, i.e., Very Good, on the basis of assessment of his performances, and further when the competent authority, after considering his representation, has negatived his claim for improving the grading from Very Good to Outstanding, he cannot be allowed to lay a claim before the Tribunal for setting aside the decision of the departmental authorities and for directing the said authorities to improve the grading solely going by the applicants own surmises and conjectures.
9. After having bestowed my anxious consideration to the facts and circumstances of the case, I do not find any merit in the Original Application which is liable to be dismissed.
10. Accordingly, the O.A. being devoid of merit is dismissed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN