-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 1569 OF 2008 Union of India and another ... Petitioners vs. Jyotsna N. Rohekar ... Respondent Mr. Vinay Masurkar with Mrs. Neeta Masurkar for the petitioners. Mr. D.V. Gangal, instructed by Ms. Priyanka Mehndiratta for the respondent. CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: SEPTEMBER 11, 2008. P.C. By filing this petition, the petitioners have challenged the order dated 30th January, 2008, passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai, in Original Application Nos. 817 of 2002 and 245 of 2003. 2. The respondent herein was the original applicant before the Central Administrative Tribunal. In O.A. No. 817 of 2002, she sought relief regarding her promotion to the post of Scientist Grade “C” with effect from 1st January, 1999 with consequential benefits like seniority, etc. It is her case that in 1998 various candidates were called for considering their claim for promotion to the post of Scientist Grade “C”. Since she was not found suitable by the Interview Committee, she was not given the benefit of -2- promotion. That action was challenged by her by way of O.A. No. 245 of 2003 before the Tribunal. In O.A. No. 817 of 2002, the respondent had sought directions from the Tribunal asking the petitioners to furnish certain information and to supply certain documents to her for the purpose of considering her promotion to the post of Scientist Grade “C” with effect from 1st January, 1999. The Tribunal found that O.A. No. 817 of 2002 was not of much significance as no specific prayer regarding promotion has been made in that matter and dismissed as infructuous. The question of promotion, therefore, has been considered in O.A. No. 245 of 2003. 3. The case of the respondent before the Tribunal was that she had joined the National Informatics Centre as a Computer Operator on 6th September, 1982. In 1983, her designation was changed to Scientific Assistant “A'. She was promoted as Scientific Assistant “B” in the year 1986, Scientific Officer “SB” (Programmer) in 1989 and Scientist/Engineer “SB” (Scientist “B”) in 1995. It is the case of the respondent that as per the new flexible complimenting scheme adopted by the petitioners, an employee with Master's Degree and having 90% marks in confidential reports was eligible for promotion after three years of service as Scientist “B”. For that purpose, the respondent appeared for the interview in December, 1998. She attended the interview through video conferencing but she having not been found suitable for promotion, challenged the said order by filing the aforesaid Original Application before the Tribunal. -3- 4. It is the case of the respondent that another employee who had completed only three years of service was promoted. In addition thereto many of her juniors who superseded her were only simple graduates. The Tribunal after going through the ACR of the respondent has observed as under in paragraph 14. “14. On going through the ACR dossier of the applicant we note that the year-wise position of her ACRs right from the date she joined service with respondents is as under - (1)6.9.82 to 31.3.83 (Very Good) (2)1.4.83 to 31.12.83 (Very Good) (3)1.1.84 to 31.12.84 (Very Good) (4)1.1.85 to 31.03.86 (Very Good) (5)1.4.86 to 30.09.86 (Very Good) (6)1.4.87 to 31.03.88 (Good) (7)1.4.88 to 31.03.89 (Very Good) (8)1.4.90 to 31.03.91 (Very Good) (9)1.4.92 to 31.03.93 (Very Good) (10)1.4.94 to 30.11.94 (Good) (11)1.4.95 to 31.03.96 (Average + Adverse) (12)1.4.96 to 31.03.97 (Average + Adverse) (13)1.4.97 to 31.03.98 (Good) (14)1.4.98 to 31.12.98 (Good) The above details indicate that:- (a) Applicant was adjudged 'Very Good' in 8 out of 14 ACRs when she was considered for promotion in December, 1988. (b) Out of remaining 6 ACRs, she was considered 'Good' in 4 and 'Average' + 'Adverse' in the rest of the 2 ACRs. -4- ( c) It is also noticed that the DPC had decided to consider ACRs of ¾ years preceding the date of the meeting i.e. December, 1998. It would include the ACRs for the years ending 31.3.1998, 31.3.1997, 31.3.1996 and 31.3.1995. It is further noted that no ACR is available for the period ending 31.3.1995. (d) Moreover, the applicant's ACRs have been written for broken periods in complete disregard of the rules governing the writing of the ACRs which is an annual exercise done after a period of one year with a view to evaluate the performance of an employee. (e) It is also notice that the ACRs for the years 1998, 1997 and 1996 have been tampered with by cutting and over- writing on the gradings. (f) Further, the applicants' ACR for the period ending 31.3.1998 was actually signed by the Reporting Officer on 30.11.1998 and by Reviewing Officer on 7.12.1998. Surprisingly another ACR was written for the same year in December, 1998 and signed on similar dates. It is these ACRs which were considered by the DPC since they were written just before the DPC held in last week of December, 1998. it is also noted that in these crucial ACRs for the year 1998, the gradings including overall gradings have been scored of or over-written with a view to bring down the applicant's overall grading to 'B' which is 'Good' from “A” which was “Very Good”. If “B” grading was originally there, the same would have been communicated to her within the same year as per rules. They were communicated only in 2001 which shows that there was no need to communicate them as they were originally not adverse at all. The respondents have, therefore, not only flouted the normal rules governing the writing of ACR and communication of adverse remarks, they have remained silent and mute spectators to the tampering of the records by senior and responsible officers who have reported and reviewed the applicant's ACRs. “ 5. The Tribunal also in paragraph 15 found that in the ACR pertaining to the year 1998, there are serious interpolations and overwriting, -5- particularly in the column pertaining to 'overall grade' and 'initiative', The remarks of the Reporting Officer in respect of the respondent's working are very good. The Tribunal has considered this aspect in detail in paragraph 15 of the judgment. It was found by the Tribunal on examining the documents that the overall grading given by the Reporting Officer was “A” which is very good but the same has been made “B” by overwriting. The Tribunal thus observed that the respondent was not subjected to fair treatment in the DPC and the DPC was misguided by the ACRs which appear to have been manipulated by certain vested interests. Considering the ruling of the Supreme Court in the case of U.P. Jal Nigam and others vs. Prabhat Chandra Jain and others, (1996) 2 SCC 363, the Tribunal allowed O.A. No. 245 of 2003 whereby the Tribunal directed the petitioners to convene a review DPC to reconsider the case of the respondent as on 23rd December, 1998 to 30th December, 1998 for the purpose of promotion to the post of Scientist “C” with effect from 1st January, 1999. The Tribunal also found that after considering the case of the respondent by a review DPC, on being found fit, she may be promoted to the post of Scientist “C” with effect from 1st January, 1999 with all consequential benefits. It is the aforesaid order which is impugned in the present petition. 6. The learned counsel appearing for the Union of India has submitted that since the petitioner had not appeared for interview, there is no question of considering her case for promotion at the relevant time. -6- However, on certain questions being asked to the learned counsel, he frankly admitted that the respondent had not appeared for the interview held in 1999. She appeared for the interview in 1998 but her case was not considered for promotion in view of the fact that her ACRs were not found to be adequate. During the course of hearing he has fairly submitted that the ACR of the petitioner was good and having “A” grade for the relevant period. The learned counsel for the petitioners has further submitted that on considering the ACR at the relevant time, the DPC did not recommend the case of the respondent for promotion. In our view, there is total contradiction in the stand taken by the petitioners. It is required to be noted that at the relevant time in connection with the question about promotion for the year 1998, the respondent admittedly had appeared for interview and, as submitted by the learned counsel for the petitioners, she was called for interview in view of the scrutiny of her ACR by the Scrutiny Committee. According to the learned counsel for the petitioners, if the ACR of a candidate is not good, then such candidate is not required to be called for personal interview. The Tribunal also found that the petitioners have not only flouted the normal rules governing the writing of ACR and communication of adverse remarks, they have also remained as silent and mute spectators to the tampering of the records by the responsible Officers who had reported and reviewed the case of the respondent. According to the Tribunal, since some mischief was made with the original ACR, the Committee was naturally misguided by the same and it is the ACR of an individual employee which is -7- more relevant and which is also given due weightage by the Selection Committee at the time of considering the question of promotion. Considering the said aspect, if the ACR of the respondent was up to the mark at the relevant time and when the committee interviewed the respondent after evaluating her performance in her ACR, in our view, the Tribunal was perfectly justified in allowing the application of the present respondent. Learned counsel for the petitioners fairly submitted that there are no norms prescribed about any weightage given for ACRs as well as in connection with the interview which was taken through video conferencing. 7. Considering the reasoning of the Tribunal and considering the facts and circumstances of the case, we do not find any illegality or infirmity in the order of the Tribunal. Because of some manipulation in the ACR of the respondent that she is required to suffer for all this time. At the cost of repetition, we may observe that the learned counsel for the petitioner has submitted that at the relevant time, the ACR of the petitioner was having “A” grade which is very good. Considering the said aspect, we do not find any substance in this petition. The same is dismissed accordingly. P. B. MAJMUDAR, J. A.A. SAYED, J.