IN  THE  CENTRAL ADMINISTRATIVE  TRIBUNAL,

HYDERBAD  BENCH, HYDERABAD

OA.No.390/2007

DATE   OF  ORDER: 24th  JANUARY, 2008

BETWEEN:

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.)