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Drdo

DRDO Scientists are you aware – Communication of Below the Benchmark Grading in CPAR

6 Comments

DoPT OM No 21011/1/2010 Estt A Dated 13th April 201

 

IN  THE  CENTRAL ADMINISTRATIVE  TRIBUNAL,

HYDERBAD  BENCH, HYDERABAD

OA.No.390/2007

DATE   OF  ORDER: 24th  JANUARY, 2008

BETWEEN:

Ms. R.Amruthavani,
D/o Shri R.Chakriah,
Aged about 45 years
Occupation: Scientist ‘E’,
Head, Human Resources Development Department,
Defence Research and Development Laboratory,
Kanchanbagh, Hyderabad.
                                                                                             ..         APPLICANT                                                                                                                A N D  
1. Union of India rep. by the Secretary to Govt.,
    Ministry of Defence, DHQ, New Delhi,
 
2. The Scientific Adviser to Raksha Mantri and
    The Director General Research and Development,
    Ministry of Defence, DRDO Bhavan, Rajaji Marg,
    New Delhi  110 011,
 
3. The Director, Directorate of Personnel (Pers-6A),
    Defence Research and Development Organisation,
    208 A Block, II Floor, New Delhi,
 
4.  The Director, RAC, Lucknow Road, Timarpur,
     New Delhi  110 054,
 
5. The Director,
     Defence Research and Development Laboratory,
     Kanchanbagh, Hyderabad.
 
                                                                           ..                               RESPONDENTS
 

COUNSEL FOR APPLICANT : .Mr. Siva, Advocate                                         (PRESENT)

COUNSEL FOR RESPONDENTS: Mrs. K.Rajitha, SC for Rlys.                   (PRESENT)

CORAM:

 HONBLE MRS. BHARATI RAY, MEMBER (JUDL.)

HONBLE MR. M.JAYARAMAN, MEMBER (ADMN.)

ORDER

(PER HONBLE MR. M.JAYARAMAN, MEMBER (ADMN.)

                        The short issue that arises for our consideration in the present OA is whether the action of the respondents in not promoting the applicant herein from the post of Scientist ‘E’ to the next higher grade i.e., Scientist ‘F’  is maintainable in law or whether this Bench needs to interfere in the matter.

2.                     The brief facts that are required to be taken note of are that the applicant was appointed as Scientist ‘B’ on adhoc basis in 1984.  She was regularized and taken on the strength of the respondents’ organization in 1986 in the same post initially on adhoc basis.  In response to the open notification to fill in the vacancies of Scientist ‘C’, the applicant applied and after due selection process she was appointed to the said post.  Subsequently, she was promoted to the posts of Scientist ‘D’ and Scientist ‘E’.  After six years of residency in the grade of Scientist ‘E’, she was eligible to be called for being subjected to the assessment during 2007 provided she had a score of 75% in her performance.  The 5th respondent, based on the letter dated 28.3.2007 of the 3rd respondent, published a list of Scientists to be called for the assessment for promotion to the next higher grade of Scientist ‘F’ vide proceedings dated 30.3.2007 wherein the applicant’s name was not included.  Similarly, in the list that was released on 5.4.2007 also her name was not shown.  So, she made a representation dated 13.4.2007.  Iln the meanwhile,  the respondents released a third list on 1.5.2007 wherein also her name was not included.  Thereafter, the 3rd respondent, vide letter dated 11.5.2007, rejected the representation of the applicant on the ground that her name was not included as she has not come up to the bench mark.  Aggrieved by the above order, the applicant has filed the present OA with a prayer to call for the records relating to the Order dated 5.5.2007 of the 2nd respondent and letter dated 11.5.2007 and quash/set aside the same holding it as  violative of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to promote the applicant as Scientist ‘F’ if found suitable,  with consequential benefits.

3.                     (i)         The case of the applicant in this OA is that the impugned order is not a speaking order and is arbitrary and violative of fundamental rights guaranteed to the applicant under Articles 14 and 16 of the Constitution of India.

                        (ii)        The applicant has submitted that it is a settled principle of law that where the grading of an individual is below the bench mark and the same would have an adverse impact on the very right to be considered for being promoted to the higher grade, the same need be communicated.  Since the bench mark was fixed at 75%, any grading below the same was liable to be communicated.  Otherwise, there is breach of principles of natural justice.

 

                        (iii)       The applicant has submitted that though there is a gradation required to be given in the Confidential Performance Appraisal Reports (CPARs), there is no yard stick for the purpose of grading the same and thus an unbridled power has been given to the assessment officer.  There is no guidance for the assessment officer to grade an officer since the guidelines given speak only of a grading of ‘Good’ etc.  This has resulted in the said officer arbitrarily rating an individual thereby denying the opportunity of promoting the officers to the next higher grade. 

4.                     (i)         The respondents have opposed the averments made by the applicant and have filed a detailed reply statement wherein it is stated that the recruitment, promotions and other service conditions of the DRDS Scientists are governed by the DRDS Rules, 1979 as amended.  As per Rule 8(2)(a) of the said rules, the promotion from one grade to the next higher grade in the service except to the grade of Scientist ‘H’ (Outstanding Scientist) shall be made under the Flexible Complementing Scheme from amongst the officers possessing the broad educational qualification as given in the Schedule III.  The promotions upto the level of Scientist ‘F’ shall be made on the basis of evaluation of Confidential Performance Appraisal Reports (CPARs) and assessment interview and, for Scientist ‘F’ to ‘G’ on the basis of evaluation of CPARs and assessment by a Peer Committee.  The Internal Screening Committees (ISC) constituted as specified in Schedule 1A and 1B, shall review the CPARs of Scientists ‘B’ on completion of minimum residency period of three years and of Scientist ‘C’, ‘D’, and ‘E’ on completion of minimum residency period of four years and of Scientist ‘F’ and Scientist ‘G’ on completion of minimum residency period of five years and three years respectively as on 30th June of the year to which the assessment board pertains.  The Internal Screening Committee shall evolve its own criteria for deciding the eligibility of Scientists for consideration by the Assessment Boards and award average marks for the Scientists.  While deciding the eligibility of the Scientists for the assessment, the Internal Screening Committee shall follow  the criteria mentioned in the said rule. 

                        (ii)        The respondents have submitted that the assessment for promotion of the DRDO Scientists shall be carried out in two stages viz., in the first stage, the Internal Screening Committee decides the eligibility of the Scientists for consideration by the Assessment Board based on the average CPAR marks and in the second stage, the Assessment Board (for promotion upto Scientist ‘F’) assesses the candidates declared eligible by the ISC in the first stage and recommends them as fit or not yet fit for promotion.  Each scientist gives a presentation of the work done by him/her in the present grade before the Assessment Board which interviews the Scientist and gives its recommendation by applying the yardstick of merit of the Scientist for promotion to the next higher grade.  Based on the recommendation of the Assessment Board, the competent authority promotes the Scientist to the next higher grade.  There is no possibility that all the Scientists who have been found eligible for the assessment interview by the Screening committee will get promotion.   

                        (iii)       The respondents have further submitted that in order to rationalize the variations in CPARs from one lab to another, the marks awarded are normalised at national level by the Screening Committee and the normalised marks are taken into account for determining the eligibility for the second stage of consideration. 

                        (iv)       Coming to the case of the applicant, it is stated that she has put in six years of residency in the grade of Scientist ‘E’ and so she should get a minimum average of 75% marks to become eligible to be called for the assessment from the post of Scientist ‘E’ to Scientist ‘F’.   The Internal Screening committee which examined the CPARs of the applicant for five years found her not eligible to be called for the assessment interview in 2007.  However, in deference to the directions issued by this Tribunal in the present OA, the applicant was interviewed on 1.6.2007 by the Assessment Board for promotion to the post of Scientist ‘F’ and the result has not been declared.

                        (v)        The respondents have further submitted that as per the minutes of Performance Appraisal Discussions of the applicant and her Assessing Officer, the Assessing Officer was satisfied with the applicant’s work output.  The Assessing Officer narrated the commitment of the applicant towards the work and the positive attitude etc. but no indication that the applicant accomplished her targets exceedingly well, was given.  Accordingly, the IO, RO and the Head of the lab rated the applicant as per the guidelines on the subject.  Since there were no adverse remarks during the residency period, the question of communicating adverse remarks did not arise.  The respondents have further submitted that the decision of finding the applicant not eligible for assessment is linked to the finding of the Internal Screening Committee based on her performance during the last five years.  The applicant was considered by the Internal Screening Committee but she could not qualify for the second round of procedure i.e., Assessment Interview. 

5.                     The applicant has filed a rejoinder to the reply statement of the respondents reiterating the averments made in the OA.  The applicant has submitted that the first stage of the selection process is nothing but the ministerial act which normally is done by the clerical staff of either the Administration or the Establishment Section and the second stage would be to call for the assessment interview in which the applicant was not found to be eligible by the Internal Screening Committee which examined her CPARs.  The applicant has further submitted that the Assessment interview is akin to the Departmental Promotion Committee and that is the only selection/recommendatory agency. 

6.                     During the hearing on 30.5.2007, the Bench, after hearing both sides, directed the respondents to allow the applicant to appear for the interview which was to be held on 1.6.2007 in terms of Annexure A-VII, along with other Scientists for the promotion to the post of Scientist ‘F’ provided that she has not been communicated with the percentage of the marks, which is below the bench mark obtained by the applicant. It was made clear in that order that the respondents shall not declare the result of the applicant.

7.                     The matter was heard extensively in several sittings through Mr. Siva, learned counsel for the applicant as also Mrs. Rajitha, learned standing counsel for  the  respondents. The learned counsel for the applicant has submitted that it is the settled principle of law that where the grading of an individual is below the bench mark and the same has an adverse impact on the very right to be considered for being promoted to the higher grade, it needs to be communicated.  The applicant has placed reliance on the Judgment of the CAT, Principal Bench, New Delhi in O.A. No. 283 of 2001 wherein it was held that any remark or grading in the performance appraisal report which places an individual below the specific bench mark for elevation, would have to be treated as adverse and would have to be communicated.  The Principal Bench of CAT, New Delhi allowed the said O.A. and  while allowing the said O.A., the Principal Bench of CAT, New Delhi   followed the judgment of the  Apex Court in the case of U.P. Jal Nigam & Ors Vs Prabhat Chandra Jain & Ors . Reported in  1996 SCC ( L& S) 579.    The Learned Counsel for the applicant has further submitted that the said judgment of the Principal Bench has been upheld by the High Court of Delhi in  CW 3115 of 2003, which has been upheld by the Apex Court .  He has also placed reliance on the judgment of the Hon’ble High Court of A.P. in W.P.No. 6624 and 6659 of 2007 dated 16.4.2007, which  upheld the judgment of this Tribunal in O.A. No. 403 of 2003.  The Tribunal in the said  case relied upon the Full Bench Judgment of the Tribunal ( Ernakulam Bench) in O.A. NO. 1304 of 2000 and in O.A. No. 523 of 1996 ( Lucknow Bench) which held that the adverse remarks recorded in ACRs cannot be taken into account unless they are communicated and denial of promotion on the basis of uncommunicated adverse remarks is not sustainable.  It was also said that  it is now settled position of law that communicated entries in one’s ACR which is below the required Bench mark grading should not be given cognizance and accordingly allowed that O.A.s

8.                     We have given our careful consideration to all the submissions of the rival sides and we have also seen the relevant papers.  We have also gone through the cited case laws.  It is generally accepted that the rules or the administrative instructions  cast an obligation upon the administrative authorities to communicate adverse remarks to the employees against whom the said remarks have been made solely with the purpose to enable such employees to make representation against the same.  This is also in consonance with the principles of natural justice in that opportunity is given to the employee concerned to improve himself so that he can come upto the expected level.  Several courts have commented on the need to communicate the adverse remarks to the concerned employees.  The Apex Court had also an opportunity to observe that administrative authorities should take remedial measures including opportunity to the employee to have his say at the time of recording of the remarks (refer decision in 1979(1) SLR 804 at page 814 SC).  This being the position, where adverse remark has been passed against an employee, such remark should be communicated and it also goes without saying that the communication should be written communication with acknowledgment of the concerned employee. Communication of the adverse entry is the first essential of a fair administrative exercise and so any uncommunicated adverse remarks are of no avail and cannot be relied upon for any purpose such as promotion etc., to the prejudice of the concerned employee.

9.                     Now the question that arises in this connection is what is to be considered as adverse in a given case.  The contention of the respondents here is that since the score was not less than 60% it was not adverse in nature, and so the same was not required to be communicated. This is where the respondents have committed an irregularity.

10.                   A careful reading of the cited case laws above clearly shows that where the bench mark for promotion is ‘Very Good’ and the applicant was found unfit for promotion as he was graded two ‘Very Good’ and three ‘Good’ out of five ACRs considered for promotion and the ACR gradings were not communicated to him,  any grading affecting his promotional prospects have to be communicated and where they were not communicated the said ACRs cannot be relied upon for consideration for promotion (refer decision dated 10.12.2002 in OA 2607/02 in the case of Smt. Aryavir) reported in 2003 (1) ATJ 130.  In fact it is very clearly stated in this decision that where officers are granted ‘Good’ or ‘Average’ but promotion is given to those who are assessed as ‘Very Good’ only, the grading of ‘Good’ or ‘Average’ has to be treated as adverse in nature and has to be necessarily communicated.  The other cited case laws also support such an interpretation.

11.                   Coming to the subject case, the respondents seem to be adopting the maxim Heads I win and Tails you lose meaning thereby that a CPAR score of 60% marks is not good enough for promotion as it is not upto the required standard i.e., 75% bench mark but  the same will not also be communicated to the employee, as it is not adverse.  Thus, the employee is kept completely in the dark.  Therefore, the contention of the respondents that they need not communicate the CPAR 60% marks which is  below the bench mark, since these are not, per se, adverse in nature cannot be accepted.  An employee is entitled to know where he stands with reference to his/her  CPAR grading or performance.  If nothing is communicated to him/her, he/she will be right in presuming that he/she would be meeting the bench mark for promotion.  Otherwise, the below the bench mark grading,, whatever it may be,  60%, 70% or whatever needs to be communicated to him/her in the interests of justice, so that he/she will be given an opportunity to improve himself/herself.

12.                   Here, the applicant has been denied promotion to the Scientist Grade ‘F’ because the Internal Screening Committee while deciding the eligibility of the applicant found that she did not have 75% marks but had a CPAR score of 60% only i.e., less than the bench mark.  Accordingly, the respondents ought to have communicated the CPAR grading (60% marks) to the applicant.  So long as they have not communicated such below the bench mark grading, the said grading ought not to have been considered for the purpose of promotion by the Internal Screening Committee or the Assessment Board.  Therefore, the impugned letter dated 11.5.2007 denying her the promotion, cannot be sustained and has to be set-aside. 

13.                   In the light of the above discussions, we deem it necessary to issue a direction to the respondents to open the sealed cover/folder containing the results of the interview conducted in respect of the applicant on 1.6.2007 as per the interim directions given on 31.5.2007 and then promote her to the grade of Scientist ‘F’ if so recommended by the Assessment Board.  If the applicant has not been so recommended for promotion to Scientist ‘F’, then, the respondents will have to hold a review meeting of the Internal Screening Committee and the Assessment Board, in respect of the applicant herein with the stipulation that the CPAR gradings of 60% which were not communicated, should not be considered but ignored.  In the interests of justice, the above exercise should be completed within a period of three months from the date of receipt of the order.

14.                   For the aforesaid reasons, we allow the OA with the above directions.  There will be no order as to costs.

 

            (M.JAYARAMAN)                                                  (BHARATI RAY)

         MEMBER (ADMN.)                                                  MEMBER (JUDL.)

Drdo

Scientist ‘F’ to Scientist ‘G’ – Assessment A clear cut Violation of Article 309

2 Comments

15th November 2011

Dear friends

                  I have received a request from some of my friends from VRDE, Ahemednagar to ask RTI from DRDO regarding the Scientist ‘F to Scientist ‘G’ promotion 2011. The letter come along with a Rs 100, I worked out all the possibilities to fight the unjustice of DRDO in this subject matter. Please challenge the proceeding of promotion of Scientist ‘F to Scientist ‘G’ in which they introduced the second screening without approval of cabinet. It is a clear cut violation of Article 309, where there is no provision to amendment of recruitment /promotion proceedings without any approval from cabinet. Even any statuary or executive order cannot allow change or amend the existing procedure, like vide letter no RAC/01/Assessment/PSG dated 22 March 2011 cannot right to amend the DRDO service rules 1979 the page No -9 para (e)**

“Recommendations for promotions of Scientist ‘F’ who have been declared eligible by internal screening committee, Scientist ‘G’ shall be made by peer review committee taking into consideration merit, achievement, personality, leadership and managerial qualities etc. there shall be no assessment interview.”

The induction in the name of interaction (the 10 minute presentation) is nothing but assessment and it is clear violation of Article 309.

You people quote the following Supreme Court Judgment it get justice from DRDO.

All Scientists of DRDO, if you feel that you deserve promotions and that you have been sidelined by your bosses due to unforeseen reasons, then you all may ask RTI on following points.

 RTI request points 

To
CPIO, DRDO HQrs, RTI Cell
DRDO Bhawan, Rajaji Marg
New Delhi — 110105

Hello,

Kindly provide me with the following informations requested under the purview of the Right to Information (RTI) Act, 2005.

1.     What are the laid down criteria for the promotion of a Scientist ‘F’ to Scientist ‘G’.

2.    In respect of the above, provide a copy of the approval obtained from Department of Personal and Training and Ministry of Finance, the Government of India

3.    The sanction obtained from DOPT for a second level screening by an Internal Screening Committee (Main).

4.    The marks allocated out of 100 to presentation & Interview conducted in the name of interaction with Scientists in the year 2011.

5.     Distribution of marks allocated for promotion from Sc. ‘F’ to Sc. ‘G’ on:

                    I.    CPARs I APARs

                  II.      Interview/Discussion

               III.        Research contribution/Books/Articles/Research                                                           Papers published.

               IV.         Seminar / Conference attended

                V.           Contribution by Scientist as technical leader in solving                                              the real time problems in the field (during user trial)

              VI.           Recommendation of superiors (Director/CC R&D)

             VII.           Constitution of Selection Committee.

Find the application fee for the request attached with this application. If you feel that above requested information does not pertain to your department then please follow the provisions of section 6(3) of the RTI Act, 2005/also as per the provisions of the RTI Act,2005 please provide the details (Name and Designation) of the first appellate authority w.r.t. to your department with the reply to the above request, where I may if required file my first appeal.

I do hereby declare that I am a citizen of India. Kindly provide me with the information at the address mentioned with the application. I request you to ensure that the information is provided before the expiry of the 30 day period after you have received the application.

Enclosed:       Rs 10 Postal order  No.

 

Signaure & Address of Apllicant

The Director General, Indian Council for Agricultural Research & Others Vs D. Sundara Raju

 

J U D G M E N T

Dalveer Bhandari, J.

1.     This appeal emanates from the judgment and order of the Division Bench of the High Court of Karnataka at Bangalore delivered in Writ Petition No. 19516 of 2004.

2.     Brief facts which are relevant to dispose of this appeal are recapitulated as under:

3.     The controversy in this appeal pertains to the promotion to the post of Principal Scientist under the “Career Advancement Scheme” formulated by the Indian Council for Agricultural Research (hereinafter referred to as `ICAR’). There are two streams from which selections are made to the post of Principal Scientist: (i) Direct recruitment; and (ii) Promotion from the post of Senior Scientist on the basis of personal merit.

4.     The ICAR had formulated the “Career Advancement Scheme” in consultation with the Department of Personnel & Training and Ministry of Finance, Government of India laying down guidelines for promotion of a Scientist from one grade to another in the Agricultural Research Services (ARS) cadre, which were made effective from 27.7.1998. The promotion of scientist to the next higher grade (Principal Scientist) is independent of the occurrence of vacancies and is based only when the applicant secures the requisite merit.

5.     The procedure for promotion to the post of Principal Scientist is contained in Para 2.4 of the Career Advancement Scheme. The relevant rule is set out as under: 2″In addition to the sanctioned posts of Principal Scientists as per cadre strength already fixed, which is to be filled through direct recruitment through All India advertisement, promotions will be made from posts of Senior Scientist to the posts of Principal Scientists after 8 years of service as Senior Scientist. This promotion will be personal to the Scientist who is promoted. A senior Scientist will be promoted to the post of Principal Scientist if he/she:i. has completed 8 years of service; and ii. he/she presents himself/herself before the Selection Committee constituted by ASRB with some of the following:

a.     Self appraisal reports (required).

b.    Research contribution/books/ articles/ research papers published.

c.     Any other academic contributions. The best three written contributions of the Sr. Scientist (as defined by him/her) may be sent in advance to the experts to review before coming for the selection. The candidate should be asked to submit these in 3 sets with the application.

d.    Seminars / conferences attended.

e.     Contribution to teaching/academic environment/institutional corporate life.

f.     Extensions and filed outreach activities.

6.     “A Selection Committee was constituted under the Career Advancement Scheme for considering eligibility of applicants for promotion from the post of Senior Scientist to Principal Scientist. The Selection Committee consisted of a Chairman, Agricultural Scientists Recruitment Board (hereinafter referred to as “ASRB”), Director General, ICAR or his nominee, three experts and the Director of the Institute of the applicant. For different disciplines, different Selection Committees were constituted with three experts from the relevant discipline so that the merit of the applicant could be comprehensively and accurately assessed. The said Selection Committee allocated marks for the assessment procedure for promotion as under:- Research Publication/Achievement 30 marks Recommendation of Superiors 20 marks Personal Interview 50 marks

7.     The minimum required marks to qualify for promotion to the post of Principal Scientist was 60 marks out of 100 marks. The candidates were accordingly assessed and the recommendation for promotion or otherwise was submitted to 4the Minister of Agriculture for his approval in his capacity as the President of ICAR.

8.     The respondent is a Senior Scientist in the service of the ICAR at the National Research Centre for Cashew at Puttur, Karnataka. Upon the respondent submitting information as per the prescribed assessment proforma, the ASRB addressed a letter to the Respondent calling upon him to present himself for assessment and interview for the Career Advancement Scheme. Accordingly, the respondent appeared for an interview before Selection Committee on 3.5.2001. However, the respondent secured only 49 marks out of 100 and was found unfit for promotion to the post of Principal Scientist. The recommendation of the Selection Committee was approved by the competent authority, i.e., the Union Minister for Agriculture. The respondent was accordingly intimated of his non-promotion as a Principal Scientist on 14.8.2001.

9.     The respondent made representations to the appellant Institute for review of the decision of not promoting him, but, when the respondent did not get any relief from the appellant 5institute, he filed a case (original application) before the Central Administrative Tribunal, Madras Bench. The Tribunal clearly held that the ICAR had acted in an arbitrary manner to allocate 50% marks for a personal interview and on this ground alone the non-selection of the applicant ought to be set aside.

10.  The Central Administrative Tribunal, Madras Bench quashed the order of the ICAR and the appellants were directed to consider the case of the respondent for promotion to the higher grade of a Principal Scientist with effect from 27.07.1998. The Tribunal also observed that the respondent would be entitled for notional fixation of pay but would not be entitled for arrears of back wages.

11.  The appellants, aggrieved by the said order of the Tribunal filed a writ petition before the Karnataka High Court. The High Court observed that it is not in dispute that the respondent was entitled to be considered for promotion to the post of Principal Scientist under the Career Advancement Scheme. It was also not in dispute that he was invited for 6such consideration by the concerned authorities. The only question which, according to the High Court, fell for consideration was whether the claim of the respondent was considered was in consonance with the Scheme? The Selection Committee constituted by the appellant had devised a method of evaluation of the candidates according to which it had allocated 30 marks for research publication/achievement, 20 marks for recommendation of superiors and 50 marks for personal interview out of a total of 100 marks.

12.  The High Court held that the Career Advancement Scheme does not however sanction any such procedure. It does not refer to or even remotely indicate that an interview of the candidate can provide a basis for determining his entitlement to promotion. The High Court also observed that the Central Administrative Tribunal, Madras was justified in allowing the petition of the respondent. The High Court relied on a judgment of this Court in the case of Ashok alias Somanna Gowda and Another v. State of Karnataka (1992) 1 SCC 28 in which it has been laid down that 50% 7marks in the interview was excessive and rendered the process of selection arbitrary.

13.  The High Court has also observed that the Central Administrative Tribunal, Bangalore, correctly came to the conclusion that the Scheme did not envisage holding of any interview.

14.  The High Court also relied on para 2.4(ii) of the Scheme and observed that Senior Scientists are eligible to the post of Principal Scientist if they have completed eight years of service and if he/she presents himself/herself before the Selection Committee constituted by ASRB with the documents indicated therein. The fact that the eligible officer appears before the Selection Committee with the relevant documents does not necessarily imply that the process of evaluation of his merit has to be on the basis of an interview nor does it indicate that the weightage to the interview can go to the extent of 50% of the total marks. The High Court upheld the judgment of the Tribunal.

15.  The appellants, aggrieved by the order of the Tribunal, as upheld by the Division Bench of the High Court, has preferred this appeal on the following grounds before this Court.

a.     Whether the Division Bench erred in holding that award of 50% of marks for interview was excessive and rendered the selection process arbitrary?

b.    Whether the inclusion of an interview process is a material irregularity that vitiated the selection process?

c.     Whether the Division Bench was justified in holding that the Career Advancement Scheme precluded the Selection Committee from adopting an appropriate method of evaluation?

d.    Whether a distinguished body of experts constituting the Selection Committee appointed under the Career Advancement Scheme had no power to assess and interview the applicants for promotion?

e.     Whether the High Court was justified in not appreciating that appointment to the post of a Principal Scientist was not on the basis of seniority but on the basis of merit alone through a process of assessment by a high powered Selection Committee.

f.     Whether, under the Career Advancement Scheme, the promotion to the post of a Principal Senior Scientist is merely upon the completion of 8 years of service or is based exclusively on the individual merit of the applicant?

g.    Whether the Central Administrative Tribunal, Bangalore was bound to follow an erroneous Order rendered by the Central Administrative Tribunal, Madras.

16.  Learned counsel appearing for the appellants submitted that the Division Bench erred in directing the appellants to reconsider the case of the respondent as he had secured only 49 out of 100 in the selection process and was not found fit for promotion to the post of Principal Scientist under the Career Advancement Scheme.

17.  The impugned judgment was also challenged on the ground that the Division Bench ought to have appreciated that the Career Advancement Scheme provides for an interview procedure in para 2.4 (ii), where it states that “the applicant shall present himself/herself before the Selection Committee”.

18.  The appellants also submitted that the Division Bench has erred in holding that award of 50% of marks for interview was excessive and rendered the entire selection process arbitrary. The appellant further submitted that Division Bench 10erred in holding that the inclusion of an interview process is a material irregularity that vitiated the selection process.

19.  The appellants further submitted that the Division Bench of the High Court ought to have appreciated that the post of Principal Scientist is a very senior post which requires many personal and intellectual qualities and attributes which can be evaluated only through a personal interview of the applicant.

20.  The impugned judgment was also challenged on the ground that the Division Bench of the High Court ought to have appreciated that the weightage to be given for the interview procedure had been determined by a body of experts constituting the Selection Committee based on the post for which promotions were being considered.

21.  Mr. Kush Chaturvedi, learned counsel appearing for the appellants submitted that the inclusion of an interview could not be treated as material irregularity that vitiated the entire selection process. Mr. Chaturvedi further submitted that the Division Bench seriously erred in holding that award of 1150% of marks for interview was excessive and rendered the selection process arbitrary.

22.  Mr. Chaturvedi also submitted that the interview Board consisted of academicians and they were justified in formulating the criteria which should not be disturbed by the court. He submitted that according to the Career Advancement Scheme, the promotion to the post of Principal Scientist is not dependant merely on completion of 8 years of service. He placed reliance on the judgment of this court in K.A. Nagamani v. Indian Airlines and Others (2009) 5 SCC 515 to strengthen his submission. According to him, for the post of Upper Managerial cadre, allocation of 50% marks for interview cannot be termed as arbitrary. In this case, 25% marks were kept for viva voce which were not found to be excessive. This case has no application to the facts of the instant case because in the instant case, 50% marks have been kept for interview. This case does not support the case of the appellants in any manner.

23.  Learned counsel for the appellants also placed reliance on the judgment of this court in Kiran Gupta and Others v. State of U.P. and Others (2000) 7 SCC 719. In this case, this court has taken the view that it is difficult to accept the omnibus contention that selection on the basis of viva voce only was arbitrary and illegal since allocation of 15% marks for the interview was not held to be arbitrary by this court, this case also provides no assistance to the appellants because in the instant case 50% marks have been kept for the interview.

24.  Mr. Manu Mridul, the learned counsel for the respondent submitted that the Career Advancement Scheme did not envisage conducting of any interview for the eligible candidates and introduction of interview itself was arbitrary and against the Career Advancement Scheme.

25.  He also submitted that the candidates were never informed that 50% marks would be allocated for interview. Therefore, there was no occasion for the respondent to have 13challenged the aspect of allocating marks for interview before his appearing for the interview.

26.  He also contended that allocation of 50% marks for interview out of a total of 100 marks was highly excessive, hence arbitrary. He submitted the allocation of 50% marks for interview is clearly contrary to a large number of judgments of this court.

27.  Mr. Mridul further contended that the respondent was considered for selection to the post of Principal Scientist on the basis of his work and performance from 1985 to 1998. According to him, the nature, work, duties and responsibilities of a Senior Scientist and Principal Scientist are almost identical in nature, but in order to remove stagnation, the promotion is envisaged under the Career Advancement Scheme. He submitted that the stand of the respondent is fortified, reinforced and strengthened by the Career Advancement Scheme 2004 and 2005 of the appellants. According to the `Information Handbook of Agricultural Scientists’ Recruitment Board under Right to Information Act, 2005, the criteria for promotion is that the Board evaluates the contribution made by the concerned Scientist in academic research. The Board also evaluates the confidential reports for the last eight years while granting benefit of the scheme.

28.  According to the procedure of the Career Advancement Scheme of 2004, the allocation of marks for personal interview has been reduced from 50% to 10% because the appellants themselves realized that allocation of 50% marks was highly excessive and in clear contravention to the series of judgments of this court.

29.  He also submitted that in 2007, the Career Advancement Scheme has undergone a further change and for personal interview, 20% marks have been allocated. According to him, in any event, allocation of 50% marks was highly excessive and in contravention of the law declared by this court in a series of judgments.

30.  Mr. Mridul fairly submitted that in exceptional cases if the nature of job is such then even 50% allocation of marks for 15interview could be justified. But, in the instant case, the promotion to the post of Principal Scientist is primarily dependant on the length of service as Senior Scientist, publication and evaluation of confidential reports. The promotion to this post is granted predominantly to remove stagnation. For the selection to the post of Principal Scientist, by no stretch of imagination, 50% marks can be justified. He placed reliance on the judgment of this court in Dr. S.M. Ilyas and Others v. Indian Council of Agricultural Research and Others (1993) 1 SCC 182. In the Career Advancement Scheme, the seniority is the important criteria apart from the publication and the evaluation of the confidential reports. Therefore, there cannot be any justification in allocating 50% marks for interview.

31.  Mr. Mrudil also argued that the appellants in their wisdom reduced the allocation of marks for interview from 50% to 10% to eliminate or reduce the arbitrariness for the subsequent selections for the post of Principal Scientist.

32.  Learned counsel for the respondent, Mr. Mridul submitted that 50% marks allocated for interview were highly excessive and rendered the selection of the candidates arbitrary. He placed reliance on a judgment of this court in Ashok Kumar Yadav & Others v. State of Haryana & Others (1985) 4 SCC 417, wherein the Court observed as under: “..the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case. To quote the words of Chinnappa Reddy, J. “In the very nature of things it would not be within the province or even the competence of the Court and the Court would not venture into such exclusive thickets to discover ways out, when the matters are more appropriately left” to the wisdom of the experts. It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may be posts and appointments where the only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree courses, it may sometimes be necessary to allow a fairly high percentage of marks for the viva voce test. That is why rigid rules cannot be laid down in these matters by courts. The expert bodies are generally the best judges. The Government aided by experts in the field may appropriately decide to have a written examination followed by a viva voce test.”

33.  This Court further observed that the Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy, J. in Lila Dhar v. State of Rajasthan and Others (1981) 4 SCC 159 observed that the exaggerated weight has been given with proven or obvious oblique motives.

34.  Mr. Mridul, learned counsel for the respondent submitted that the controversy is no longer res integra. According to him, a 4-Judge Bench of this Court in Ashok Kumar Yadav & Others (supra) has observed 22.2% marks of the total marks allocated for the viva voice test as infecting the selection process with the vice of arbitrariness.

35.  In Ashok Kumar Yadav (supra), the Court relied on earlier judgment of this Court in Ajay Hasia and Others v. Khalid Mujib Sehravardi and Others (1981) 1 SCC 722, wherein the Court took up the view that allocation of as high a percentage as 33.3% of the total marks for the viva voice test was beyond reasonable proportion and rendered the selection of the candidates arbitrary.

36.  In Minor A. Peeriakaruppan v. Sobha Joseph (1971) 1 SCC 38, the Court observed that earmarking 75 marks out of 275 marks for interview as interview marks prima facie appears to be excessive. The Court observed that various researches conducted in other countries particularly in USA show that there is possibility of serious errors creeping in interviews made on haphazard basis. C.W. Valentine on “Psychology and its Bearing on Education” refers to the marks given to the same set of persons interviewed by two competent Boards and that is what is stated in his book: “The members of each board awarded a mark to each candidate and then he was discussed and an average mark agreed on. 19 When the orders of merit for the two boards were compared it was found that the man placed first by Board A was put 13th by Board B when the man placed 1st by Board B was 11th with Board A.”

37.  In this case, the Court also observed that even when the interviews were conducted by impartial and competent persons on scientific lines very many uncertain factors like the initial nervousness on the part of some candidates, the mood in which the interviewer happens to be and the odd questions that may be put to the persons interviewed may all go to affect the result of the interview.

38.  This Court in R. Chitralekha v. State of Mysore and Others AIR 1964 SC 1823 observed as under:- “In the field of education there are divergent views as regards the mode of testing the capacity and caliber of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extracurricular activities, personality test, psychiatric tests, etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examination. In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter.”

39.  In Minor A. Peeriakaruppan (supra), the Court referred to Ajay Hasia’s case (supra) where the Court found that the allocation of more than 15 per cent of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. The Court observed that the viva voce test conducted must be held to be fair, free from the charge of arbitrariness, reasonable and just.

40.  In Nishi Maghu & Others v. State of J&K & Others (1980) 4 SCC 95, the Court observed that 50% marks out of total 150 marks allotted for interview were excessive.

41.  In Mehmood Alam Tariq v. State of Rajasthan (1988) 3 SCC 241, the question involved was regarding the validity of certain provisions of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1962, the Rajasthan Administrative Service Rules, 1954, the Rajasthan Forest Service Rules, 1962 which contained a provision special to the said three services and not applicable to other services, that candidates, other than those belonging to Scheduled Castes and Scheduled Tribes should secure a minimum of 33 per cent marks in the viva voce test. The rules further stipulated that the candidates for these services must also secure 50 per cent marks in the written examination, but that was not in the area of controversy. While dealing with the above questions a reference was made to cases Ajay Hasia (supra), Lila Dhar (supra) and A.K. Yadav (supra). It was observed as under: “The much desired transformation from patronage to open competition is a later development, to which, now, all civilised governments profess commitment. However, though there is agreement in principle that there should be a search for the best talent particularly in relation to higher posts, however, as to the methods of assessment of efficiency, promise and aptitude, ideas and policies widely vary, though it has now come to be accepted that selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made. The `interview’ is now an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates. Macaulay had earlier clearly declared that a young man who in competition with his fellowmen of the same age had shown superiority in studies might well be regarded as having shown character also since he could not have prepared himself for the success attained without showing character in eschewing sensual pleasures. But the interview came to be recognised as an essential part of the process of selection on the belief that some qualities necessary and useful to public servants which cannot be found out in a written test would be revealed in a viva voce examination. In justification of the value and utility of the viva voce, the committee on Class I examinations in Britain said: …It is sometimes urged that a candidate, otherwise well qualified, may be prevented by nervousness from doing himself justice in viva voce. We are not sure that such lack of nervous control is not in itself a serious defect, nor that the presence of mind and nervous equipoise which enables a candidate to marshall all of his resources in such conditions is not a valuable quality. Further, there are undoubtedly some candidates who can never do themselves justice in written examinations, just as there are others who under the excitement of written competition do better than on ordinary occasions…. We consider that the viva voce can be made a test of the candidate’s alertness, intelligence and 23 intellectual outlook, and as such is better than any other….

42.  As to the promise as well as the limitations of the viva voce, Herman Finer says: If we really care about the efficiency of the civil service as an instrument of government, rather than as a heaven sent opportunity to find careers for our brilliant students, these principles should be adopted. The interview should last at least half an hour on each of the two separate occasions. It should be also entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on the subject, the scope of which would be announced at the interview. As now, the interview should be a supplementary test and not a decisive selective test. The interviewing board should include a business administrator and a university administrator. The interview should come after and not before the written examination, and if this means some inconvenience to candidates and examiners, then they must remember that they are helping to select the government of a great State, and a little inconvenience is not to be weighed against such a public duty….””

43.  In Mohinder Sain Garg v. State of Punjab & Others (1991) 1 SCC 662, allocation of 25 per cent of total marks for viva voce test in selection was held arbitrary and excessive.

44.  In P. Mohanan Pillai v. State of Kerala & Others (2007) 9 SCC 497, 50% marks were fixed for the interview. The Court observed as under: “16. In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav and subsequent cases, but in the facts and circumstances of the case, it is reasonable to draw an inference of favouritism. The power in this case has been used by the appointing authority for unauthorised purpose. When a power is exercised for an unauthorised purpose, the same would amount to malice in law. (See: Govt. Branch Press v. D.B. Belliappa (1979) 1 SCC 477, Punjab SEB Ltd. v. Zora Singh (2005) 6 SCC 776 and K.K. Bhalla v. State of M.P (2006) 3 SCC 581).”

45.  We have heard the learned counsel for the parties at length and have carefully perused the impugned judgment and the orders of the Tribunal.

46.  In our considered view, no interference is called for, on account of following reasons:- (A) Promotion to the post of Principal Scientist pertains to the “Career Advancement Scheme”. Norms, Rules and Guidelines which are 25 employed while granting the benefit of Career Advancement Scheme ought to be applied in the instant case.(B) It is amply clear that the quinquennial assessment scheme for the ICAR/ARS Policies and Rules were- a) for providing opportunities for the career advancement, irrespective of the occurrence of vacancies, through a system of assessment should lead to each scientist competing with his or her rather than with colleagues and to the acceptance of the principle the “all the rights accrue from a duty well done”. b) Enable scientists to get the highest salary possible, within the system while remaining rooted to work in their respective discipline/field, 26 thereby eliminating both the undue importance attached in the past to research management policy and the request for such positions purely for the advancement of salary. c) Link rights and responsibilities and instill through the five-year assessment system the conviction that dedicated and efficient discharge of responsibilities alone would be the means of securing professional advancement.

47.  The respondent was not disclosed by the appellant either that the interview would be held for evaluating personal or intellectual qualities that attribute a Scientist and that it shall carry 50% of the total marks. This is uncontroverted position. Had the appellants disclosed the method of evaluation the respondent may have challenged the same before participating in the selection process.

48.  No fault can be found in the impugned judgment in view of the legal position which emerges after proper scrutiny of following cases of this Court, namely, Ashok Kumar Yadav (supra), Ajay Hasia (supra), Lila Dhar (supra) and Minor A. Peeriakaruppan (supra). 50% marks allocated for the interview were highly excessive for the post of a Principal Scientist and contrary to the settled legal position crystallized from a series of the judgments of this court.

49.  The appellants were totally unjustified in allocating 50% marks for the interview particularly when the appellants did not even disclose to the respondent that the interview would also be held to evaluate suitability of the candidate for the said post.

50.  The procedure evolved by the Selection Committee for evaluating the respondent was totally arbitrary and contrary to the settled legal position.

51.  The appellants themselves have found 50% marks for interview highly excessive, therefore, now the criterion has 28been changed from 50% to 10%. This is indicative of the fact that good sense had ultimately dawned on the appellants.

52.  The appeal is totally devoid of any merit and is accordingly dismissed with costs which are quantified as 50,000/-. The costs to be paid to the respondent within four weeks.

……………………………………….J. (DALVEER BHANDARI)

……………………………………….J. (DEEPAK VERMA)