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Rajasthan High Court · body

2019 DIGILAW 2082 (RAJ)

Union Of India v. Dashrath Lal Bapna

2019-07-31

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The present writ petition has been preferred against the order dated 11.5.2018 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No.290/2018. 2. Brief facts necessary to be noted are that the respondent was communicated adverse entries for the year 1990-91 regarding adamant attitude and rigid behavior, the same was challenged by him by way of filing Original Application No.283/94. The said application was allowed by the Tribunal vide order dated 15.12.95 holding that the entries made were actuated by malice. 3. The respondent was communicated adverse entries in his ACRs for the year 1991-92 and 1992-93 vide communication dated 16.02.94 and 19.08.93 respectively. Aggrieved thereby, the respondent preferred Original Application No.134/02, which was allowed by the Tribunal vide order dated 05.11.04 and while holding that adverse entries for both the years shall be ignored for all purposes since the entries are advisory in nature and were communicated to the respondent after lapse of prescribed period. The petitioners were directed to reconsider the case of the respondent for promotion to the higher post of Principal Scientist from the date his juniors were so promoted and promote him as such, if he is found otherwise fit and suitable with all consequential benefits as per rules within a reasonable period of six months from the date of receipt of the Tribunal's order. 4. The legality of the order dated 05.11.04 passed by the Tribunal was questioned by the petitioners herein before this Court by way of D.B. Civil Writ Petition No. 2375/05, which was dismissed by this Court vide order dated 03.05.05. 5. It is noticed that in the first instance the candidature of the respondent for promotion to the post was considered by the Selection Committee on 23.03.01, however, he was not promoted to the post of Principal Scientist inasmuch as, he failed to achieve the benchmark of 60% marks. 6. Pursuant to the directions issued by the Tribunal vide order dated 05.11.04, upheld by this Court vide order dated 03.05.05, the candidature of the respondent for promotion to the post of Principal Scientist was reconsidered by the Selection Committee on 01.09.2005, however, the respondent was again denied promotion while giving a weightage of 50% for interview. 6. Pursuant to the directions issued by the Tribunal vide order dated 05.11.04, upheld by this Court vide order dated 03.05.05, the candidature of the respondent for promotion to the post of Principal Scientist was reconsidered by the Selection Committee on 01.09.2005, however, the respondent was again denied promotion while giving a weightage of 50% for interview. Aggrieved thereby, the respondent preferred yet another Original Application being No.10/06 before the Tribunal, contending that the weightage of interview was excessive and not in accordance with the law laid down in various judgments of the Tribunal, High Court and Supreme Court. The original application preferred was allowed by the Tribunal vide order dated 24.11.11, relying upon decision of the Supreme Court in 'The Director General, Indian Council for Agricultural Research & Ors. V/s D.Sundara Raju', (Civil Appeal No.2714/05 dated 30.03.11), wherein the Supreme Court held that the appellants therein were totally unjustified in allocating 50% marks for interview, particularly when, they did not even disclose to the respondent therein that the interview would also be held to evaluate suitability of candidate for the said post. Accordingly, the petitioners herein, were directed to reconsider the case of the respondent therein in consonance with the decision of the Supreme Court and pass an appropriate order within three months and make the benefits flowing from the said decision of the Supreme Court available to him. 7. In compliance of the directions issued by the Tribunal vide order dated 24.11.11, the candidature of the respondent was reconsidered for promotion to the post of Principal Scientist. Agricultural Scientist Recruitment Board ('ASRB') recommended for 'non-promotion' to the respondent to the next higher grade of Principal Scientist in the pay scale of Rs. 16400-23400 w.e.f. 27.07.98. The recommendations of ASRB were accepted by the competent authority. The respondent being aggrieved by the decision of the petitioners in denying him promotion violating the directions issued by the Tribunal vide order dated 24.11.11, filed Contempt Petition No.30/02, alleging willful disobedience of the order. 8. During the course of hearing of the contempt petition, it was transpired that it will be difficult for respondent to substantiate the charge of willful disobedience and therefore, with the agreement of the parties, on their applications, the contempt petition preferred was converted into original application. 9. 8. During the course of hearing of the contempt petition, it was transpired that it will be difficult for respondent to substantiate the charge of willful disobedience and therefore, with the agreement of the parties, on their applications, the contempt petition preferred was converted into original application. 9. The respondent contended before the Tribunal that keeping in view the decision of the Supreme Court in Civil Appeal No.2714 of 2005, only way to reconsider the respondent's case for promotion w.e.f. 27.07.98 was to ignore the marks allocated for interview and reassess him on the basis of remaining criteria. The respondent submitted that admittedly he has scored 30 out of 50 marks in respect of other criteria and holding of interview was not permitted by the scheme and thus, he should deem to have qualified for promotion having obtained 60% marks, which was the benchmark for promotion from Senior Scientist to Principal Scientist. The respondent urged that the petitioners herein made a deliberate attempt to defeat the claim by relying on the marks obtained in interview though with the reduced weightage, which was not in consonance with the judgment of the Supreme Court. 10. On the other hand, the petitioners herein, relying upon the decision of the Supreme Court contended that they were fully justified in reconsidering the case of the respondent in terms of reduced weightage for interview i.e. 10%, as revised in the year 2013. The petitioners contended that a weightage of 10% for interview could not be considered as excessive and thus, their action in reassessing the respondent on the criteria that included the weightage of 10% marks for interview was justified. 11. After due consideration of rival submissions, the Tribunal opined that the scheme prevalent at the relevant time did not envisage holding of any interview and thus, observations made by the Supreme Court regarding the change of weightage for interview from 50% to 10% by the respondent subsequently in the year 2003, which is obiter cannot be made basis to deny the promotion to the respondent. The Tribunal opined that fresh assessment of the respondent based on 2003 criteria did not arise as the matter pertain to his entitlement to promotion in the year 1998 in accordance with then prevailing rules and norms. The Tribunal opined that fresh assessment of the respondent based on 2003 criteria did not arise as the matter pertain to his entitlement to promotion in the year 1998 in accordance with then prevailing rules and norms. The Tribunal observed that the Apex Court has upheld the order of the High Court whereby it had been observed that the Central Administrative Tribunal, Bangalore had correctly come to the conclusion that the scheme did not envisage holding of any interview. The Tribunal observed that the respondent who had been awarded 10 out of 20 marks under recommendations by the superiors/ACRs earlier when they contained adverse entries in respect of two years, which were subsequently directed to be ignored and thus, he could have only be awarded higher marks than previously assessed and not the lower marks. The Court observed that admittedly, the respondent had scored 30 out of 50 in respect of the criteria minus interview when his case was first considered and therefore, the question of reducing his score by the subsequent committee, was not justified and accordingly, the petitioners have been directed to grant promotion to the respondent w.e.f. 27.07.98 and pass appropriate orders within a period of one month from the date of receipt of coy of the order. Hence, this petition. 12. Heard. 13. Learned counsel for the petitioners contended that the Tribunal failed to consider the judgment rendered by the Hon'ble Supreme Court in the case of D. Sundara Raju (supra) as the petitioners have considered the case of the respondent absolutely in the light of the said judgment and since the respondent has failed to secure the requisite 60% marks for being promoted on the post of Principal Scientist, his case has not been recommended for promotion. He further submitted that the Selection Committee which is expert on the subject had reconsidered the entire matter of the respondent and awarded the marks in compliance of the directions issued by the Tribunal keeping in view the authoritative pronouncement of the Hon'ble Supreme Court in the case of D. Sundara Raju (supra) and therefore, no illegality has been committed by the petitioners while denying the promotion to the respondent on the post of Principal Scientist. 14. 14. He further submitted that no fault can be found with the decision of the Committee as they have reconsidered the matter strictly in conformity with the judgment of the Hon'ble Supreme Court and since the applicant-respondent had not secured 60% aggregate marks, his case has not been recommended for promotion to the post of Principal Scientist. The Committee had assessed the marks of the respondent with interview and without interview and the tabular form of the same is reproduced in para 6 of the writ petition shows that the applicant has not secured the requisite 60% marks. Thus, he is not entitled for promotion on the post of Principal Scientist. 15. He further contended that the Tribunal erred in giving a direction for promotion to the respondent w.e.f. 27.7.1998 instead of consideration of the case in view of the settled position of law that a person has only a right of consideration and not promotion. 16. Learned counsel after taking us to the judgment of Hon'ble Supreme Court in the case of D. Sundara Raju (supra) submitted that even the Hon'ble Supreme Court has allowed 10 marks to be considered for the interview and the petitioners have incorporated the same in their scheme w.e.f. 2003 whereby the Career Advancement Scheme as amended by a Score Card System circulated by letter dated 31.7.2003 and clarifications issued thereafter vide letter dated 3.10.2003. Therefore, looked at from any angle, the respondent was not meeting the criteria laid down for promotion to the post of Principal Scientist and therefore, the order passed by the ASRB on 7.5.2012 is perfectly justified and the order passed by the Tribunal is required to be quashed and set aside. 17. Per contra, learned counsel appearing for the respondent Mr. Manoj Bhandari submitted that the learned Tribunal has taken into consideration all the facts and the authoritative pronouncement of the Hon'ble Supreme Court in the case of D. Sundara Raju (supra) and has rightly directed the petitioners to promote the respondent w.e.f. 27.7.1998. He relied upon the judgment and submitted that the Hon'ble Supreme Court had categorically held that the rules/scheme applicable on the date of promotion is required to be taken into consideration whereas the petitioners have considered the case of the respondent in accordance with the amended provisions of the scheme. He relied upon the judgment and submitted that the Hon'ble Supreme Court had categorically held that the rules/scheme applicable on the date of promotion is required to be taken into consideration whereas the petitioners have considered the case of the respondent in accordance with the amended provisions of the scheme. He further submitted that in the Career Advancement Scheme applicable at the relevant time, no interview was prescribed and therefore, there is no question of allotting any marks for interview by the petitioners. He submitted that the case of the respondent was required to be considered in consonance with the provisions of Career Advancement Scheme prevailing in the year of consideration and not after the amendment in the year 2003. Learned counsel for the respondent has relied upon para 46 of the judgment rendered in D. Sundara Raju (supra) and submitted that the scheme does not envisage the marks for interview at all. Therefore, interviewing the applicant and even keeping 10 Marks for promotion to the post of Principal Scientist is beyond the scope of scheme. He submitted that the petitioners are hellbent for not giving the benefit of promotion to the respondent on the post of Principal Scientist merely on ipsi dixit grounds and for redressal of his grievance, he had to approach the courts of law time and again. He therefore, prayed that the writ petition being bereft of merit, deserves to be dismissed with heavy cost. 18. We have considered the submissions advanced at bar and have gone through the entire record of the case. 19. The present case has a chequered history. The respondent is agitating his grievance since 1994. The orders passed by the Tribunal at least on two occasions clearly show that the petitionerauthorities were required to consider the case of the respondent within the framework of scheme prevailing at the relevant time. Having not considered the case of respondent appropriately, again the directions were issued to reconsider the case of respondent in view of the judgment rendered in D. Sundara Raju (supra). It is a clear case in which the case of the applicant should have been considered for promotion to the post of Principal Scientist from Senior Scientist as per the provisions of Career Advancement Scheme prevailing at the relevant time and not as per the amended provisions. 20. It is a clear case in which the case of the applicant should have been considered for promotion to the post of Principal Scientist from Senior Scientist as per the provisions of Career Advancement Scheme prevailing at the relevant time and not as per the amended provisions. 20. In D.Sundara Raju's case (supra), the Karnataka High Court while examining the claim of the respondent therein, categorically held that Career Advancement Scheme does not refer to or even remotely indicate that an interview of the candidate can provide a basis for determining his entitlement for promotion. 21. A perusal of the decision of the Hon'ble Supreme Court reveals that the decision of the Karnataka High Court has been upheld and the reference of the changed criteria of 50% to 10% weightage to interview, was made only in context of the contention raised that the criteria of a weightage of 50% to interview is excessive. But essentially, the decision of the High Court in holding that under the prevalent criteria for assessing the suitability of the candidate, the criteria of interview was not envisaged and thus, the question of the criteria of interview being laid down by the petitioners in the year 2003 said to be reduced criteria of weightage to interview, cannot be made applicable retrospectively to the consideration of the case of promotion of the candidates who acquired the eligibility in the year 1998. Thus, the conclusion arrived at by the Tribunal that a reduced weightage of 50% to 10% introduced in the year 2003 cannot be applied to the consideration of the cases of promotions of the candidates, who acquired the eligibility in the year 1998, even in light of the Supreme Court decision, cannot be faulted with. 22. The Hon'ble Supreme Court in the case of D. Sundara Raju (supra) has held in para 46 & 47 which reads thus:- "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 employed while granting the benefit of Career Advancement Scheme ought to be applied in the instant case. 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 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, 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." 23. The Hon'ble Supreme Court has clearly held that there is no criteria of personal interview provided in the scheme itself and thus, there is no question of calling a candidate for personal interview. The observations with respect to providing 50% marks for interview was held to be on higher side and excessive and since the appellants themselves in that case found that 50% marks for interview were highly excessive, they changed the same from 50% to 10% and it was observed by the Hon'ble Supreme Court that this was indicative of the fact that good sense had ultimately dawned on the appellants. In the present case, there was no provision for the interview at all in the Career Advancement Scheme applicable at the relevant time and therefore, even allocating the marks to the extent of 10% by the petitioners was not justified. 24. In the present case, there was no provision for the interview at all in the Career Advancement Scheme applicable at the relevant time and therefore, even allocating the marks to the extent of 10% by the petitioners was not justified. 24. The marks allocated by the Selection Committee which met on 23.3.2001 and 1.9.2005 are reproduced as under:- Marks by the Selection Committee dated 23.3.2001 (i) Research Publication/Achievements 20 out of 30 marks. (ii) Recommendations by Superiors 10 out of 20 marks. (iii) Personal Interview 15 out of 50 marks. Marks by the Selection Committee dated 1.9.2005 (i) Research Publication/Achievements 18 out of 30 marks. (ii) Recommendations by Superiors 08 out of 20 marks. (iii) Personal Interview 20 out of 50 marks. 25. We are at a loss to understand that how two marks in each column No.(i) and (ii) of Selection Committee dated 1.9.2005 got reduced in four years. The allocation of marks were required to be adjudged for the work done by the applicant-respondent before 1998. 26. We note that 20 marks given by the Selection Committee in Column (i), in the meeting dated 23.03.2001 have been reduced to 18 marks in the meeting dated 1.9.2005 without there being any change in the circumstances as the Publication/Achievement remained the same as were there prior to 2001. 27. In Column (ii), 10 marks were awarded by the Selection Committee in 2001, two ACRs of the respondent was having adverse entries but in pursuance of the directions of the Tribunal vide order dated 5.11.2004 (affirmed by the High Court vide order dated 3.5.2005), the effect of those entries was directed to be ignored, then the net effect would be that the marks in the category of recommendations of superiors should have increased but in no circumstances, the subsequent Selection Committee could have reduced it from 10 marks to 8 marks. 28. The Selection Committee which reconsidered the case of the respondent On 26.4.2012 has awarded the marks as under:- Assessment period Research Publication /Achievement (60 marks) Recommendations by Superiors (Based on AARs for the period 1994-1995 to 1998- 1999) 30 marks Personal Interview (10 marks) Total (100) Recommendations Grade w.e.f. 27-07-1990 to 26-07- 1998 30 12 Not appeared 42 out of 90 Not recommended 27-07-1998 29. We notice that in Column (i), the marks are awarded from a maximum of 60 and while calculating the grading done, the marks awarded on 1.9.2005 have been taken into consideration. Similarly, in column (ii), the marks out of 30 have been awarded taking into consideration the marks of Selection Committee dated 1.9.2005. Even if, we go by the calculations made by the Selection Committee on 26.4.2012 considering the marks in Column (i) and (ii) awarded by the Selection Committee on 23.3.2001, the respondent gets 40 and 15 marks respectively out of 60 and 30 marks respectively which clearly shows that the marks secured by the respondent would be more than 60% entitling him to be promoted on the post of Principal Scientist. The petitioners have tried to justify their stand by showing a table in the writ petition whereby it is demonstrated that even if the marks of interview are awarded, the respondent is not securing 60% marks. The table prepared by the petitioners is reproduced as under:- Attributes Marks awarded on 1.9.2005 Marks as per order dated 24.11.2011 after applying mathematical application of ratio proportion With Interview Without Interview Research Publication/Achievements 18 out of 30 30 out of 60 30 out of 60 Recommendations by Superiors 08 out of 20 12 out of 30 12 out of 30 Personal Interview 20 out of 50 04 out of 10 Not appeared Total 46 out of 100 46 out of 100 42 out of 90 Whether 60% Marks obtained for being recorded for promotion No No No 30. If we take into account the consideration made by the petitioners on three occasions, we are convinced that despite the respondent was having 60% marks (without interview) as per the Selection Committee report dated 23.3.2001, the promotion has been denied on one count or the other. 31. We note that the eligibility criteria as envisaged in the Career Advancement Scheme of the petitioner-department dated 19.7.2000 produced on record shows that there is no requirement of interview for promotion to the post of Principal Scientist. Therefore, calling the respondent for personal interview is absolutely uncalled for. 32. 31. We note that the eligibility criteria as envisaged in the Career Advancement Scheme of the petitioner-department dated 19.7.2000 produced on record shows that there is no requirement of interview for promotion to the post of Principal Scientist. Therefore, calling the respondent for personal interview is absolutely uncalled for. 32. We note that despite giving repeated directions to reconsider the case of the respondent absolutely in conformity with the provisions of the scheme, the petitioners have made every endeavor to reject the candidature of the respondent by awarding the marks below 60% as we have observed in the preceding paras. The deduction of the marks in column No.(i) and (ii) awarded by the Selection Committee on 1.9.2005 has been repeated by the Selection Committee on 26.4.2012 and it has been demonstrated that since the respondent has not secured 60% marks and therefore, respondent cannot be promoted on the post of Principal Scientist. 33. As we have observed in the preceding paras, the marks could not have been reduced in the subsequent meeting of the Selection Committee keeping in mind the marks awarded by the Selection Committee in its meeting dated 23.3.2001. We note that while considering the candidature on 26.4.2012, the marks awarded by the Selection Committee on 1.9.2005 have been taken into consideration for which there is no justification. Ideally, the marks awarded by the Selection Committee on 23.3.2001 should have been considered instead of the marks awarded by the Selection Committee on 1.9.2005. Therefore, the petitioners failed to consider the candidature in the true letter and spirit. 34. On being asked to the learned counsel for the petitioners about the reduction of marks in the subsequent Selection Committee which met in 2005, learned counsel submitted that the same was in view of the judgment rendered by the Hon'ble Supreme Court in the case of D. Sundara Raju (supra) and as per the amended criteria. The same appears to be totally unjustified as the case of the respondent is required to be considered within the framework of provisions of Career Advancement Scheme prevailing prior to amendment and in conformity with judgment of the Hon'ble Supreme Court. 35. The same appears to be totally unjustified as the case of the respondent is required to be considered within the framework of provisions of Career Advancement Scheme prevailing prior to amendment and in conformity with judgment of the Hon'ble Supreme Court. 35. As far as the argument of the learned counsel for the petitioner that no direction for promotion straight away should have been passed by the Tribunal is on the face of it, bereft of merit as the Tribunal has given directions for considering the matter of the respondent on the earlier occasions but the petitioners have tried their level best not to consider the candidature of the respondent in accordance with law on one pretext or the other. 36. Thus, in our view, if we adopt the marking criteria of Selection Committee convened on 23.03.01, since the respondent had secured 30 marks out of 50 in respect of the criteria laid down, he fulfills the eligibility criteria of 60% marks for the purpose of promotion to the post of Principal Scientist. No marks for the interview were prescribed in the scheme at the relevant time, therefore, there was no question of allocating the marks of the same. The Tribunal was absolutely right in directing the petitioners to grant promotion to the respondent with effect from 27.7.1998. 37. We concur with the findings of the Central Administrative Tribunal, Jodhpur. 38. The respondent is agitating his grievance for more than two decades, however, his rightful dues were denied by the petitionerdepartment wrongfully throughout. The suffering and agony of the respondent, in our view is required to the compensated by awarding cost. Therefore, we award a cost of Rs.25,000/- to be paid by the petitioners to respondent. 39. In view of the discussions made above, the petition fails and is hereby dismissed with cost of Rs.25,000/-.