Ashok Kumar Sahu vs Chairman-Cum-Managing Director, Bharat Sanchar Nigam Ltd. & Ors.

By Mallika Arya, AM.-

The applicant is aggrieved in not considering his case for grant of time bound financial up-gradation from E-3 to E-4 Grade under Executive Promotion Policy (EPP) Scheme.

Brief facts of the case, as projected in the Original Application are that the applicant was initially appointed as Sr. TDA vide order dated 05.11.1983. Thereafter, he was promoted on the post of SDO. The applicant stood voluntarily retired w.e.f.31.01.2020 while serving on the post of SDO, Central Administrative Tribunal^{TDM, Narsinghpur. The Telecom Circle of Madhya Pradesh vide the letter} dated 27.08.2019 (Annexure A-4) issued time bound financial up-gradation to the next higher IDA scale from E-3 to E-4 grade. The applicant submits that he was entitled to get the said benefit. However, he has been debarred for this benefit on account of the technical ground that he has not filled his APAR online for six months. The applicant submits that while posted at Jabalpur, he was transferred to Narsinghpur on 02.05.2017 and his entire service portal through ERP have been sent to Narsinghpur Office. Thus, due to technical reason, the applicant could not fill his APAR online before 15.07.2017. After the cut-off date, the entire ESS/ERP Centre was locked online and, thus, the applicant could not fill up his APAR online.

In their reply, the respondents have stated that the applicant has not filled his APAR through ESS portal by online for the year 2016-17, i.e. for the period 01.11.2016 to 31.03.2017 (5 months) and also for the period of 01.04.2017 to 01.05.2017 (1 month) and due to his failure, the Departmental Promotion Committee has not considered his case for time bound financial up-gradation. The respondent department extended the time period to fill-up APAR by ESS Portal from time to time. However, the applicant failed to fill-up his APAR online. The applicant has also not made any representation for having not been able to fill APAR for the period of 01.11.2016 to 31.03.2017 and 01.04.2017 to 01.05.2017.

In his rejoinder, the applicant reiterates that he was suddenly transferred to Narsinghpur and his service particulars under ESS portal were transferred to Narsinghpur Office. After joining at Narsinghpur Office, he made efforts to fill up his APAR in the e-mode before the extended date, i.e. 15.07.2017. However, due to some technical fault, he could not fill his APAR within the given time.

We have heard the learned counsel for the parties and perused the pleadings and the documents available on record. The respondents were given 15 days’ time to file written submission. However, no written submission has been filed on behalf of the respondents.

The short question requiring consideration is whether an employee otherwise eligible for time-bound financial upgradation under the BSNL Executive Promotion Policy can be denied such consideration merely because he failed to submit the online self-appraisal portion of his APAR?

The BSNL EPP circulated vide the letter dated 27.08.2019 (Annexure A-4) provides for time-bound IDA pay-scale upgradation to eligible executives subject to the conditions prescribed therein. The circular refers to a letter dated 18.01.2007 of the Corporate Office, wherein up-gradation under EPP is allowed to those Executives, who fulfill the condition mentioned in the letter dated 18.01.2007. However, copy of the letter dated 18.01.2007 has not been filed by the either side. In any case, it has not been refuted that the fitness of an eligible executive for up-gradation to the next higher IDA scale is to be judged on the basis of the performance rating of ACRs coupled with other conditions. Consideration of the ACRs of the preceding five years for assessing fitness also appears to be a vital factor for up-gradation. Thus, the substantive criterion under the EPP is the performance assessment contained in the prescribed APAR/ACR record and the other conditions stipulated in the policy.

It is necessary to distinguish between the self-appraisal furnished by an employee and the APAR itself. The self-appraisal is only one component of the performance appraisal mechanism. Failure on the part of the officer reported upon to submit the self-appraisal within the stipulated period does not, by itself, obliterate the Reporting Officer's duty to record the performance assessment. The DoPT procedure governing APARs specifically contemplates a situation where the officer reported upon does not submit his self-appraisal. In such a situation, after the prescribed reminder/opportunity, the Reporting Officer may proceed to write the report on the basis of his own experience of the work and conduct of the officer and may record the fact of non-submission of self-appraisal. Consequently, non-submission of self-appraisal and non-existence of an APAR are two entirely different situations.

If the applicant had failed to submit his self-appraisal online within the given time, the appropriate course for the respondents was to follow the prescribed APAR procedure and have the APAR completed by the competent Reporting/Reviewing Authorities on the basis of the material available on record. The respondents cannot, without pointing out any specific provision in the EPP or other binding instructions, treat the applicant's failure to furnish self-appraisal as an automatic disqualification from the substantive benefit of time-bound financial upgradation. Such an approach would effectively introduce an additional eligibility condition into

The importance of a fair and transparent performance assessment is further reinforced by the law laid down by the Hon'ble Supreme Court in Dev Dutt vs. Union of India & Others, (2008) 8 SCC 725, wherein it was held that entries in the ACR having a bearing on the employee's prospects of promotion or other service benefits must be communicated within a reasonable period so that the employee has an opportunity to make a representation against the same. The Hon’ble Supreme Court has observed that non-communication of an ACR entry which may adversely affect promotion is arbitrary and violative of Article 14 of the Constitution. Therefore, where the department seeks to rely upon an APAR or a particular performance assessment for denying a service benefit, the assessment must have been prepared in accordance with the applicable procedure and the employee must have been afforded the procedural safeguards available under the APAR instructions.

In the present case, the respondents have not demonstrated that the EPP contained any express provision stipulating that failure to submit self-appraisal online, by itself, entails forfeiture of the otherwise admissible financial up-gradation. The mere statement that the applicant did not submit the online APAR for the year 2016-17 (period 01.11.2016 to 31.03.2017) and 2017-18 (period 01.04.2017 to 01.05.2017), in our considered view, cannot be treated as sufficient justification for denying consideration under the EPP. The respondents were required to process the applicant's case in accordance with the EPP after completing the APAR record in accordance with the applicable instructions and thereafter assess his fitness on the basis of the prescribed criteria. They could have taken the manual self appraisal of the applicant (2017) into account for judging his suitability for EPP.

Accordingly, the decision whereby the applicant's claim for EPP financial upgradation has been rejected on account of non-submission of online self-appraisal for the year 2016-17 (period 01.11.2016 to 31.03.2017) and 2017-18 (period 01.04.2017 to 01.05.2017) is held per se illegal. The respondents are directed to reconsider the applicant's case for financial upgradation under the BSNL EPP on the basis of the prescribed eligibility conditions. If, upon such consideration, the applicant is found fit and otherwise eligible from the due date, the consequential benefits shall follow in accordance with the applicable rules and instructions. This exercise must Central Administrative Tribunal^{be completed within a period of 90 days from the date of receipt of a copy} of this order.

In the result, the Original Application is allowed. No order as to costs.