The petitioner herein is working as Scientist ‘E’. The petitioner was promoted as Scientist grade ‘C’ w.e.f. 1 July, 1993. Next promotion is to the grade of Scientist ‘D’. As the petitioner was not directed to appear before the Assessment Board, 1998 for consideration for promotion in the year 1998 after completing five years service in the grade of Scientist ‘C’WP(C) No. 4545/2000 was preferred before the Hon’ble High Court, Delhi.
2. After filing of the Writ Petition and issue of DB rule the petitioner was promoted to the grade of Scientist ‘D’ w.e.f. 1.7.2001. Further he was promoted to the grade of Scientist ‘E’ w.e.f. 2007 after completing six years service in the grade of Scientist ‘D’. As the promotion to the grade of Scientist ‘D’ and Scientist ‘E’ were achieved after filing of this writ petition and issue of DB Rule therefore by filing additional affidavit this fact was brought to the notice of the Hon’ble court so that court could mould its relief eventually granted to the petitioner.
3. The Hon’ble High court by its Judgement allowed the application and made the following orders.
8. ......Accordingly rule is made absolute. The impugned judgment dated 1st May, 2000 passed by the Central Administrative Tribunal is hereby set aside. The O.A. filed by the petitioner before the Tribunal is allowed. As a consequence, direction is issued to the respondent to reconsider the case of the petitioner by holding review DPC and if found suitable for promotion, the petitioner be accorded promotion to the post of Scientist ‘D’ with effect from the date his juniors were promoted on the basis of Internal Screening Committee which was held on 1st July, 1998.
9. We are informed that the petitioner was subsequently given promotion to the post of Scientist ‘D’ w.e.f.1st July, 1998, he shall be given arrears on repromoted post from 1st July, 1998 to 30th July, 2001 and shall also be entitled to consequential benefits of seniority and promotion etc..
10. since the respondents have not appeared, no order as to costs.
4. Thus, from the judgment also it is clear that petitioner should have been given promotion to the grade of Scientist ‘D’ w.e.f. 1.7.1998 by honouring the result of the Assessment Board, 2001 which has promoted him to the grade of Scientist ‘D’ w.e.f. 2001 and this is the only just and fair method for consideration of his case for promotion from Sc. 'C' to the grade of Sc. ‘D’ for the year 1998.
5. Perhaps, the judgement looks to be clear and the interpretation should be like this.
Para 8 says that in case petitioner has not been promoted subsequently then his case for promotion should be considered on the basis on Review DPC i.e., he do not have to appear for interview assessment.
Para 9 says that if the petitioner has subsequently received promotion then his case for promotion should be considered by retrospective implementing the promotion w.e.f. the due date i.e. 1.7.98 and shall also be entitled to consequential benefits of seniority and promotion etc..
6. Thus, according to the judgment the petitioner has to be accorded promotion as Scientist ‘D’ w.e.f. 1.7.1998 and be given arrears on repromoted post from 1.7.1998 and shall also be entitled to consequential benefits of seniority and promotion etc.
7. However, the department directed the petitioner to appear before the Review Assessment Interview for the year 1998.
Smelling there is something wrong the petitioner vide its letter dated 15th Sept, 2011 and 19th Sept., 2011 represented against the order asking him to appear before the Review Assessment Interview Board, 1998 on the following grounds:
(i) He was promoted to the grade of Scientist ‘D’ by the Assessment Board, 2001 and therefore as such appearing before the Assessment Board again for the same grade is not required.
(ii) He prayed to issue directions to honour the interview result which he has already cleared and promoted to the higher grade for consideration of his case for promotion to the grade of Scientist ‘D’ w.e.f. 1.7.98.
(iii) Re-appearing for Interview and/or examination is not justified and also does not ensure the same success. In this circumstances holding a review DPC as mentioned in the judgement is the only best and justified way for reconsideration of his case.
(iv) He requested to kindly reconsider their decision for directing him to physically appear before the Review Assessment Interview for the year 1998 and intimate him accordingly.
(v) He expressed his fear to appear in the Review Assessment Board, 1998 as he will be in an undue disadvantageous position and will not get the same success than if he had appeared in an Assessment Board in 1998 where he would have been appearing as a normal candidate and would have therefore been in an advantageous position. This will also be in line with the judgement which says to reconsider the case by holding review DPC. Thus Interview assessment was not to be done as fitness was not to be compared with other scientist.
(vi) He emphasised that re-appearing for interview and/or in an examination does not ensure the same success and that too when there is a Review Assessment Interview where the candidate is in an undue disadvantageous position.
(vii) As he is working as Scientist ‘E’ therefore appearing for a Review Assessment Interview 1998 is horrifying and will certainly lead to condition in which it can never produce a just, fair and bonafide result.
(viii) He therefore prayed that they may be graciously pleased to issue an appropriate orders and allow his claim and issue directions to honour the interview result which he has already cleared and promoted to the higher grade for consideration of his case and pass any other order or orders which are deemed necessary in the interest of justice and equity.
8. In response to his letters the department reiterated that the petitioner has to brief the Review Assessment Board, 1998 and not to appear for interview /Assessment.
9. When the Review Assessment Board was not to make the interview/assessment vide office letter there was no reason for the petitioner not to appear before the Review Assessment Board. If the petitioner had not appeared before the Assessment Board department could have taken the stand that they were not taking the assessment and therefore as the petitioner had not appeared they could have declared him absent and not implemented the promotion from 1.7.1998. Therefore the petitioner was forced to appear before the Review Assessment Board, 1998.
10. There was no new information which the Review Assessment Board, 1998 was to examine. All the information which the Review Assessment Board, 1998 had to examine was already available even in the year 1998 and was fixed and there was no randomness in this information. The randomness was only in the Assessment Board, 1998. On the basis of fixed information alone the Review Assessment Board, 1998 cannot declare him as ‘Not Yet Fit’ for promotion, Therefore, the Review Assessment board was motivated and declared him as ‘Not Yet Fit’ for promotion. The petitioner has obtained average 77.8+% marks in his ACR. Thus, his seniors have awarded him more than 77% marks in ACR every year during five years residency period. The qualifying marks for the residency period are 60%. Thus, if the scientist secures 60% marks in the Assessment Board he has to be declared ‘Fit For Promotion’ by the assessment board. Since there was no interview therefore for fixed information work when department has awarded more than 77% average marks to the petitioner how can the Assessment board award not even 60% to the petitioner required for being declared ‘Fit for Promotion’ by the Assessment Board, 1998.
11. Thus, the Review Assessment Board, 1998 has declared him ‘Not yet fit’ on an arbitrary and totally untenable approach with ulterior motives and violates principle of natural justice.
12. Promotions in petitioner’s department are governed by Flexible complementary System (FCS). Thus, a scientist who has obtained marks in his Annual Confidential Report as prescribed by the rule is directed to appear for an Interview before the Assessment Board. The Assessment board gives its recommendation for the promotion of the scientist as per rule given below:
“(d) The Assessment Board for promotion upto the level of Scientist ‘F’ shall submit its recommendations as ‘Fit for Promotion’ or ‘Not yet Fit’ or fitness shall be deferred by one year. If the overall merit calibre of the candidate as judged by the Assessment Board matches with the qualifying marks required for his residency period, the candidate should be recommended as ‘Fit for Promotion’ otherwise, the recommendation would be “Not Yet Fit” or fitness shall be deferred by one year.
Thus, there is no comparison of fitness among scientist for recommending him for promotion. When the fitness is deferred by the Assessment Board the Scientist is given promotion from the subsequent year without having to appear again before the Assessment Board.
The qualifying marks for the residency period are 60%. Thus, if the scientist secures 60% marks in the Assessment Board he has to be declared ‘Fit For Promotion’ by the assessment board.
13. While dictating the judgement direction was issued to the respondent to reconsider the case of the petitioner by holding Review DPC and if found suitable for promotion, the petitioner be accorded promotion to the post of Scientist ‘D’ with effect from the date his juniors were promoted on the basis of Internal Screening Committee which was held on 1st July, 1998. Thus, it was understood from the direction that the hon’ble Justice has waived the Interview assessment and therefore he has directed for payment of arrears w.e.f. 1.7.98 on the repromoted post. However the department directed the petitioner to appear before the Review Assessment Interview for the year 1998. As apprehended and intimated to the department vide his representation dated 8th and 19th Sept, 2011 he has been declared ‘Not Yet Fit’ as happens in such cases where the department is annoyed for filing a case in court and gets an opportunity to declare the petitioner as ‘Not Yet Fit’ in the interview and thus nullify the judgement of the court.
14 Many times due to error committed by the government the promotion has not been given to the employees. When the error was brought to the notice of the court and it recommends the correction, the case of the employee for promotion is reviewed. In the case where department follows the procedure of promotion through DPC where the decision of promotion is based on the entries in ACR only which has already been written then the department has no arbitrary information which has to be assessed and the candidates are promoted with retrospective effect and thus the judgments are honoured in words and spirit.
15. In department where FCS (Flexible Complementary Scheme) system is followed for promotion like our department the promotion is recommended by Assessment Board after appearing for interview assessment. The role of ACR is limited and to see if the candidate fulfil the minimum requirement of marks in his ACR to become eligible for appearing before the Assessment Board for interview assessment. In such cases even if the court corrects the error and directs the department to reconsider the case of the employee for promotion with retrospective date the employee is again in the mercy of the department for assessment interview. The department against whom the employee has filed a case will obviously declare him ‘Not Yet Fit’ for promotion in the interview assessment for filing a case in court and going against the department. Thus in cases where the promotion is based on FCS system the judgement becomes nullified as the promotion is to be granted by the department after holding Review Interview Assessment Board. This is illegal, arbitrary and discriminatory and violates Article 14 and 16 of the constitution as in FCS system even if the judgement is in favour of the employee he cannot get the promotion whereas in DPC system of promotion if the judgement is in favour of the employee he gets relief and the promotion is granted by retrospective date even by the court itself as all the information which has to be assessed in ACR is fixed.
16 The petitioner made representation to the department against their order declaring him ‘Not yet fit’ for promotion inspite of their letter informing him that there will be no interview/assessment by the Review assessment board for interview, 1998.
17. The department vide their letter stated that the functions of DPC for promotions of Scientists in the grades of Scientist ‘B’, ‘C’, ‘D’, and ‘E’ are being carried out by the Assessment Boards,. That petitioner has earned all his promotions upto the Sc. ‘E’ under the provisions of Rules only. It is, therefore, but natural that review of his promotion from Sc. ‘C’ to ‘D’ w.e.f. 01 July, 1998 as directed by Hon’ble High Court was to be considered by the Review Assessment Board, constituted as per the ibid rules. The petitioner was therefore, asked to brief the Review Assessment Board regarding his work report for the period from 1993 to 1997 and not to appear for interview/assessment. Accordingly, the petitioner was considered for promotion to the post of Sc. ‘D’ for the year 1998 on 27th Sept, 2011 by the Review Assessment Board and was recommended ‘Not Yet Fit’ for promotion to the grade of Sc. ‘D’.
18. Thus, the Review Assessment Board, 1998 has declared the petitioner as ‘Not Yet Fit’ on the briefing of the work report by the petitioner without appearing for interview/assessment. Thus, the department had waived the interview/assessment for the petitioner. As the petitioner was declared ‘Not Yet Fit’ by the Assessment Board this shows that the Review Assessment Board, 1998 has awarded the petitioner less than 60% marks in the Review Assessment Board, 1998 after the briefing of his work report for which the department in appraising his appraisal reports has awarded him more than 77+ % of marks every year during the five years residency period. This is a significant difference in marks awarded by two committees on the same work report which has reviewed the work report of the petitioner and this clearly shows there is some error somewhere.
19. Grounds
1. Because the promotion was denied to the petitioner because of the mistake of the administration and due to no fault of the petitioner, therefore the authorities should waive the process of assessment interview and pay the arrears of salary etc., upon giving him the benefit of retrospective promotion after realising that mistake from the date his juniors had been so promoted.
2. Because the department directed the petitioner before the Review Assessment Board, 1998 for reconsideration of his case for promotion w.e.f. 1.7.98 in spite of the fact that the petitioner has already received two promotions and is working as Scientist ‘E’ this shows that the department has interpreted the judgement given in Para 8 as if the court has desired that the Petitioner has to be reassessed for the year 1998 for consideration of his case for promotion to the grade of Sc. ‘D’ w.e.f 1998.
3. Because para 8 & 9 of the judgment can also be interpreted quite contradictory to each other. So, none else other then the competent court can rectify the mistake to make the concerned department work accordingly. Therefore there is no alternative relief and we are forced to approach the competent court to get the error of the judgment rectified.
4 Because in fact, the contents of para 9 can also be interpreted as useless in the wake of direction given to the respondent in para 8 of the judgment therefore we have to approach the competent court to get the lacuna of judgment rectified.
5. Because there is no reason why the petitioner who has knocked the door of the court should be deprived of the benefit of the judgement.
6. Because there is no reason why the department should be allowed to nullify the effect of the judgement by failing the petitioner in the interview and thus the justice has been deprived to him.
Is there any possibility of getting relief from the court and who can help
