Central Administrative Tribunal - Jabalpur
P.N. Mishra vs The Union Of India Through Its Secretary on 22 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.329 of 2010
Jabalpur, this Wednesday, the 22nd day of July, 2015
MR. G.P. SINGHAL, ADMINISTRATIVE MEMBER
MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
P.N. Mishra, s/o Dr. B.N. Mishra, Aged about 54 years,
Scientist C, Forest Ecology Division, Tropical Forest Research Institute,
P.O. R.F.R.C. Mandla Road, Jabalpur,
Distt. Jabalpur 482021. -Applicant
(By Advocate Shri Ashok Singh proxy counsel of Shri Ajay Pratap Singh)
V e r s u s
1. The Union of India through its Secretary,
Ministry of Environment and Forest, Govt. of India,
Paryavaran Bhawan, C.G.O. Complex, Lodhi Road,
New Delhi 110003.
2. The Director General,
Indian Council of Forestry Research and Education (ICFRC),
P.O. New Forest Dehradun-248006 (Uttranchal).
3. The Director, Tropical Forest Research Institute,
P.O. RFRC. Mandla Road, Jabalpur, Distt. Jabalpur M.P.
PIN 482021.
4. Dr. Veena Chandra, Scientist F,
Forest Research Institute Dehradun P.O. New Forest,
Dehradun (Uttranchal) 248006.
5. Mr. P.S. Rawat, Scientist D, Forest Research Institute,
P.O. New Forest, Dehradun (Uttranchal) 248006. - Respondents
(By Advocate Shri S.K. Mishra)
O R D E R
By U. Sarathchandran, JM :-
Applicant is a Scientist C working under respondent No.3. He joined service on 27.2.1987 in the grade of Scientist 1 and thereafter he was promoted as Scientist C w.e.f. 1.1.1993. His grievance is that he has not been considered for promotion till date inspite of several meetings of the Departmental Review Committees had occurred in the meantime. He is also aggrieved by the fact that his ACRs which are material consideration for the Departmental Review Committee for promotion to the different grades i.e. from Scientist B to Scientist F had not been communicated to him and that the promotions were denied to him arbitrarily. He seeks the following relief:
(i) That, this Honble Tribunal be pleased to call entire record of review committee regarding promotions of petitioner for kind perusal. The seniority list of Scientists C is with respondents and may be directed to produce before this Honble Tribunal for kind perusal and proper decision of the case.
(ii) That, this Honble Tribunal be pleased to direct respondents for reconsideration of case of petitioner for promotion over and above his juniors with effect from year 1998 on which his juniors was promoted and also to grant all consequential benfits.
(iii) That, this Honble Tribunal be pleased to set-aside the decision dated 04.11.2009 of review committee Annexure P-14 and also set aside impugned order dated 30.11.2009 Annexure P-15 matter be remitted back for re-consideration by reconstituting review committee.
(iv) Honble Tribunal be pleased to direct respondents to re-constitute review committee and consider the confidential reports and petitioner be considered for promotion from the date on which his juniors were promoted with all consequential benefits and may be compensated for mental suffering under gone.
(v) This, Honble Tribunal be pleased to direct respondents to promote petitioner on post of Scientist G with all consequential benefits and be placed over and above his juniors as per FCS.
(vi) Any other writ/writs, direction/directions which this Honble Tribunal deem fit & suitable alongwith costs of this petition may also be granted in view of facts & circumstances of the case.
2. Respondents contend that the applicant was being considered for promotion every time i.e. from 1.1.1998 to 1.1.2010, but he was not assessed fit for promotion/screened out by the committee. Applicant could not secure the minimum percentage of marks for eligibility on the basis of evaluation, Annual Confidential Report (in short ACR) and with reference to minimum residency of period and number of grades prescribed. It is further submitted that under the system in which the Scientists are working under the official respondents, every Scientist on promotion after a review, carry the post with him and consequently no vacancy of higher post is required for assessment/review of Scientist for promotion. Mere seniority cannot confer any right of promotion to the applicant. With regard to the grievance relating to the non communication of ACR, the respondents contended that adverse comments recorded in his ACR for the period 01.04.2001 to 31.03.2002 were communicated vide Annexure R-5, but the applicant did not make any representation against adverse remarks so communicated. Respondents further state that applicant habitually remained absent from duty unauthorisedly. As he had been lacking devotion in duty and had exhibited willful disobedience to superior officials, he was issued with a chargesheet and inquiry was conducted in which he was awarded punishment vide Annexure R-8 order withholding of one increment for an year without cumulative effect. Respondents further state that the party respondents i.e. respondents Nos.4 & 5 in this case had been promoted as they were screened and promoted on the basis of the marks obtained by them in their ACR, not on the basis of seniority.
3. We have heard the counsel appearing on both sides and perused records produced by them.
4. We have perused the Recruitment Rules, which according to the official respondents was amended in 2007. The method of promotion of Scientists to different grades is through the process called flexible complementing. The relevant portions of the process is abstracted below:
5.2 Review and promotion through flexible complementing:
5.2.1 Review for promotion by the Departmental Review Committee shall be done twice a year, that is, before 1st January and 1st July every year. Those who have completed or will complete the residency period in a post during the period of three months before or three months after the date of 1st January or 1st July, as the case may be, as prescribed in the table given below, will be considered as on that date for review for promotion to the next higher:
Designation Minimum Residency period linked to performance Scientist B 3 years Scientist C 4 years Scientist D 4 years Scientist E 5 years Scientist F 5 years Scientist G
-
Provided that exceptionally meritorious candidates with all outstanding grading may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion. Such a relaxation will be limited to a maximum of two occasions in their entire career.
.
5.2.2 5.3.
5.4 A person holding a scientific post not found fit for promotion after any review shall become eligible for the next review only after a lapse of one year from the date of such review.
6. Review Process 6.1 .
Number of years in the grade
3 4 5 6 7 8
Minimum percentage for eligibility
Scientist B to 85% 80% 70% 65% 60% --
Scientist C
Scientist C to ... 85% 80% 75% 70% 60%
Scientist D
Scientist D to .. 85% 80% 75% 70% 60%
Scientist E
Scientist E to . 85% 80% 75% 70%
Scientist F
Scientist F to . 85% 80% 75% 70%
Scientist G
5. Applicant contends that though his juniors (party respondents Nos.4 and 5) have been promoted, he was not considered for promotion possibly on the basis of ACRs which, according to him, had not been communicated at all. However, respondents in their reply statement have given details of the ACR gradings obtained by the applicant from 1993 to 31.3.2009. The statement given by the respondents in this regard is reproduced below:
Period of ACRs Grading/Marks
01.04.1993 to 31.03.1994 Good
01.04.1994 to 31.03.1995 - Good
01.04.1995 to 31.03.1996 - Good
01.04.1996 to 31.03.1997 - Average
01.04.1997 to 31.03.1998 - Good
25.04.1998 to 31.03.1999 - Below Average (Adverse).
The same was commincated
to the applicant vide Memo
No.40-71/99-ICFRE, dated
26.07.99.
01.04.1999 to 31.03.2000 - Good
01.04.2000 to 31.03.2001 - Average
01.04.2001 to 31.03.200 - Adverse remarks communicated
to the applicant vide Memo
No.40-71/02-ICFRE, dated
07th October, 2002.
01.04.2002 to 31.03.2003 - The applicant remained un-
authorized absent from duty,
therefore, his ACR was not
reported.
01.04.2003 to 31.03.2004 - The applicant remained on
unauthorized absent from
duty therefore, his ACR was
not reported.
01.04.2004 to 31.12.2004 - Good
01.01.2005 to 31.03.2005 - Average
01.04.2005 to 31.03.2006 - V. Good
01.04.2006 to 31.03.2007 - V. Good
01.04.2007 to 31.03.2008 - 61 marks out of 100
01.04.2008 to 31.03.2009 - 33 marks out of 100. These
marks were communicated to
the applicant vide No.
40-71/02-ICFRE, dated 15th
Sept., 2009.
However the applicant did
Not submit any representation.
6. The above statements indicate that on three occasions the adverse entries in the ACRs had been communicated to the applicant. It is also seen from the above statement that applicant did not have any ACR from 1.4.2003 to 31.3.2004 as he remained absent unauthorizedly. Respondents have also produced marks awarded to the Scientists including the applicant by the Departmental Review Committee from 1998 onwards (Annexure R-3 colly.) As could be seen from Annexure R-4 series that in the proceedings of the Departmental Review Committee held from 1998 to 2009 applicant scored only less marks than what is required for promotion. According to respondents applicant vide Annexure R-5 and R-6 documents have been communicated adverse remarks in the ACR in 2002 and 2009 and had given a memo vide Annexure R-7 for unauthorised absence from duty. Annexure R-8 is the order dated 30.10.2006 in the disciplinary proceedings initiated against him for unauthorised absence whereby his increment was withheld for one year without cumulative effect.
7. From what is stated by the respondents, we note that except for the year 1998-99, 2001-02 and 2008-09 the ACR remarks were not communicated to the applicant at all, yet the official respondents had taken into the account un-communicated ACR gradings for the purposes of promotion, as decided by the Departmental Review Committee. It may be true that there was no ACR required for the period from 01.04.2002 to 31.03.2004. It is settled law as laid down by the Apex Court in Dev Dutt v. Union of India and others, (2008) 2 SCC (L&S) 771 that an entry in the ACR depends on its actual impact on an employees career and that an entry can be adverse in the context of eligibility for promotion. It was further held that all types of entries are to be communicated to the employee within a reasonable period to provide an opportunity of making representation and also for improvement of his gradings. It was also held by the Apex Court that even outstanding entry in the ACR also should be communicated as it would boost the morale of the meritorious employee. The Apex Court further highlighted the importance of transparency in good governance and treated such virtues as a new component of natural justice.
8. It is worth quoting, the Apex Courts observations on the importance of ACR in State of U.P v. Yamuna Shanker Misra and another, AIR 1997 SC 3671:
7the 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 51A (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 writ the confidential report 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 the facts or circumstances. Though sometimes, it may not be part of 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 give to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving 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 standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
9. In the instant case, one can see that the respondents had relied on the un-communicated ACRs also for the purposes of assessment by the Departmental Review Committee for considering the applicant for promotion. The conduct of the respondents in relying on the un-communicated ACRs is obviously against the principles of natural justice and is in violation of the law laid down by the Apex Court in Dev Dutts case (supra) and in the other cases. It is worth mentioning that Dev Dutt decision was followed by a larger bench of the Apex Court in Abhijit Ghosh Dastidar v. Union of India and others, (2010) 1 SCC (L&S) 959.
10. In the above circumstances we direct the respondents to communicate the un-communicated ACRs, as indicated by the respondents in the aforequoted portions in their reply statement to the applicant so that within one month from the date of receipt of such communication, he could make representations. If such representations are made, they shall be considered by a competent authority higher than those who made such entries. The decision so made by the competent higher authority shall be taken into account by a newly constituted Departmental Review Committee (in the for of a review DPC in other government departments) for the relevant years during which his un-communicated ACRs were considered by the Departmental Review Committee earlier. This exercise shall be completed within four months from the date of receipt/presentation of copy of this order and the applicant shall be given the consequential benefits of promotion, if any granted by such newly constituted Departmental Review Committee, based on the decisions of the said higher authority on the representations made by the applicant pertaining to the uncommunicated ACRs.
11. It was reported at the bar that subsequently, applicant has been compulsorily retired. Therefore, the aforesaid consequential benefits, if any, shall be reflected in his pensionary benefit also.
Ordered accordingly. Parties shall suffer their own costs.
(U. Sarathchandran) (G.P.Singhal) Judicial Member Administrative Member am 7 OA 329/2010 Page 7 of 7