Calcutta High Court (Appellete Side)
Debasish Mukherjee vs Ntpc Ltd. And Others on 30 April, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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Serial No. AD-35
April 30, 2014.
m.d. W.P. No. 13413 (W) of 2013
Debasish Mukherjee
-versus-
NTPC Ltd. and others
Mr. Debasish Mukherjee
.. Petitioner-in-person
Mr. Soumya Majumder
Mr. Uttam Kr. Mandal
.. for NTPC Ltd.
The petitioner, an IT Engineer in NTPC Ltd, complains of a
faulty promotion process under which the petitioner has suffered in
the year 2013. Though the petition also complains of the process
for the year 2012, the petitioner has restricted his claim to the year
2013.
According to the petitioner, the petitioner's annual
performance assessment should have been completed in Eastern
Region-I rather than in Eastern Region-II. The petitioner contends
that since comparative marks are awarded in course of the annual
performance appraisal, the petitioner suffered in the petitioner's
assessment being made under Eastern Region-II when it ought to
have been under Eastern Region-I. That the petitioner's
assessment, or normalisation, should have been made under ER-I
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is evident from the rules that the petitioner relies on. Clause 12.0
of a circular of March 27, 2007 clearly mandates that the exercise of
normalisation would be "at the place of posting where he/she is
working on the last day of the assessment cycle." The last day of
the relevant assessment cycle in this case was December 31, 2012
when the petitioner was posted on deputation at the Damodar
Valley Corporation in Kolkata. There is no doubt that as at the last
day of the relevant assessment cycle, the petitioner fell within ER-I
and his normalisation should have been made under such Zone for
the purpose of considering his promotion in the year 2013.
The further case of the petitioner is that in the event the
petitioner's assessment for the purpose of normalisation was done
in ER-I, the petitioner stood a chance of obtaining an excellent
performance assessment which would have prompted the
promotion as, according to the petitioner, no candidate in the
relevant pay-band or post who has achieved at least one remark of
excellent in course of the four assessment cycles has been kept
back without promotion.
The employer says that the petitioner's apprehension that
the petitioner was not promoted because his normalisation for the
year 2012 was made in another region than where it ought to have
been, is without basis. According to the employer, for the purpose
of promotion, four factors are taken into consideration: performance
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appraisal marks in the immediate four preceding years; seniority;
additional marks if the candidate is in any reserved category; and,
the marks obtained in an interview.
According to the employer, for each of the four assessment
years between 2009 and 2012 the petitioner was awarded eight
out of a possible 10 marks adding up to a total out of 32 out of a
possible 40. On account of seniority, the petitioner was marked
14 out of a possible 20. The third factor was not applicable to the
petitioner's case. At the interview, the petitioner obtained 10 out
of a possible 20 marks. The grand total obtained by the petitioner
was 56 out of a maximum of 80; and, the cut-off marks for
promotion was fixed at 60.
It is submitted by the employer that even if the petitioner had
obtained the maximum of 10 marks for year 2012 in his
performance appraisal, the petitioner would have obtained only an
additional two marks which would still have not carried the
petitioner's grand total to 60 or beyond.
According to the petitioner, the only reason that the petitioner
has suffered is because of the petitioner's deputation to DVC.
Such deputation was at the request of the petitioner and he stood
transferred to DVC on June 02, 2012. The petitioner contends
that upon there being an anomaly in the 2012 assessment, the
petitioner was assured that to avoid any future difficulty to the
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petitioner, the petitioner would be brought back to NTPC, but the
repatriation was delayed which may have resulted in the petitioner
losing out even in the 2014 promotion process which has just
been concluded. The petitioner acknowledges that even if the
petitioner succeeds in establishing that the petitioner was
prejudiced upon the petitioner's performance appraisal being
normalised in ER-II rather than in ER-I, the petitioner may not be
promoted with retrospective effect. However, the petitioner
contends that if it is established that the petitioner had been hard
done by due to a faulty decision-making process in the year 2013,
the petitioner's candidature would be considered more favourably
in future.
There is no evidence to show that there was any act of mala
fides on the part of the employer or that the petitioner was
victimised for one reason or the other. However, since it is evident
that the petitioner's process of normalisation of the appraisal for
the assessment cycle ended on December 31, 2012 should have
been conducted in the ER-I region, instead of the ER-II region
where it was erroneously done, and it is the perception of the
petitioner that the petitioner has been prejudiced thereby, the
respondent authorities will take such factor into account so that
the petitioner's feelings may be assuaged and appropriate 5 consideration of the petitioner's candidature be made in the first promotional process hereafter.
It is also made clear that the employer should not take any steps detrimental to the petitioner's interest merely because the petitioner carried a complaint to Court. In the event the petitioner's performance in assessment cycle 2014 does not reflect a serious drop, the Court may draw an adverse inference in the event the petitioner approaches the Court in 2015 upon the petitioner not being promoted during such year. W.P. No. 13413 (W) of 2013 is disposed of without any order as to costs.
Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) 6