Kapil Nagi vs Union Of India & Ors

Dr. Anand S. Khati, Member (A)

Heard the learned counsel for the respective parties and perused the pleadings on record.

On 20.09.2014, the Respondent No.2 - Union Public Service Commission (UPSC) issued a notification for Combined Section Officers/Stenographers‟ (Grade-B/Grade-I) Limited Departmental Competitive Examination, 2014. The said examination comprises of two parts, i.e., Part-I - Written Examination and Part-II –

Evaluation of Service Records. The applicant (viz. Kapil Nagi) appeared in the said examination and was declared successful. The applicant was already working as Personal Assistant and applied as a departmental candidate through proper channel, i.e., Respondent No.1 – Ministry of External Affairs (MEA), which was his parent department. The Respondent No.1 had properly forwarded his application to Respondent No.2 - UPSC. The Respondent No.2 – UPSC conducted the Written Examination on 27th and 28th December, 2014. After clearing the Written Examination, evaluation of service records was to be done. UPSC, the examination conducting agency, required the APARs (Annual Performance Appraisal Reports) from the Department concerned, i.e., Respondent No.1. These APARs were to be supplied by the Respondent No.1 to the Respondent No.2. The applicant has submitted his APARs (self appraisal) for the periods 02.05.2011 to 31.03.2012 and 01.04.2012 to 28.12.2012 to his Reporting/ Reviewing Officers within the timeframe. At a later stage, it is known that the Respondent No.1 has not submitted the APARs of the applicant in time to the Respondent No.2.

The APARs for the periods 02.05.2011 to 31.03.2012 and 01.04.2012 to 28.12.2012 were shown to be completed by the concerned officers on 14.07.2015 and sent to the applicant in November, 2015 only along with a covering letter dated 27.11.2015. The applicant has been graded as „Outstanding‟ in both the APARs.

It is worth mentioning that the applicant had submitted his self appraisals on 10.05.2012 and 12.04.2013 for the said APARs. Vide letter dated 30.12.2015, the UPSC informed the applicant that his candidature has been cancelled by the Commission due to absence of sufficient APARs as on 01.07.2014. According to the applicant, he was wrongly punished, while it was entirely the responsibility of the Respondent No.1, who was the custodian of the APARs. The applicant submitted a representation dated 08.01.2016 to the Respondent No.1 to take up the matter with the Respondent No.2. However, the Respondent No.1 rejected his representation vide non-speaking, non-reasoned order dated 15.02.2016. The present O.A. is emanated from the same.

The UPSC (Respondent No.2) has observed that in many cases, all the relevant APARs for the period 2010-11 to 2014-15 were not received from the Respondent No.1 and the matter was taken up with the MEA (Respondent No.1) vide letter dated 15.07.2015. In response thereto, the Ministry of External Affairs forwarded the relevant APARs and „No Reporting Certificates‟ to the extent available with them and APARs for the period 2010-11 to 2013-14 were furnished in respect of the applicant and mentioned that APARs for the period 2011-12, 2012-13 (01.04.2012 to 28.12.2012) and 2014-15 are not available. The Assessment Board did not assess the APARs in respect of the applicant in view of the fact that sufficient APARs were not made available in the case. The UPSC clarified that in order to complete the entire selection process in a time bound manner, the respondents called for the APARs of written examination qualified candidates within the stipulated time period so that the same may be placed before the Assessment Board for assessment.

The candidates who appear in the Combined SOs /Stenos (Grade-B/Grade-I) LDCE, 2014 get sufficient period for completion of their service records and only in those cases where requisite number of minimum of 03 (three) ACRs/APARs are not available, like in the instant case of the applicant, the candidature of the applicant along with one similar candidate was cancelled vide their letter dated 30.12.2015, which is impugned before the Hon‟ble Tribunal. Aggrieved with the decision of the Respondent No.2, the applicant has filed the O.A. No. 1293/2016 before this Tribunal and sought the following relief(s):

“a. Quash Order letter No.SOs/Stenos/2014/RollNo.6420/ E-VI dated 30 December 2015, and Letter No.Q/CAD/551/3/2016 dt. 15.02.2016, issued by the Respondents, and

b. Direct the Respondents to restore the candidature of the applicant to the post of Grade I of Stenographers cadre of Indian Foreign Service Branch B (Private Secretary), and appoint him to the post of Grade I of Stenographers cadre of Indian Foreign Service Branch B (Private Secretary), as per his merit, with all consequential benefits of seniority and pay-allowances, with arrears thereof.”

As brought out before us, it is an admitted fact that the Respondent No.2 required the APARs for the period 2010-11 to 2014-15 to assess the candidature of the candidates for Combined SOs/Stenos (Grade-B/Grade-I) LDCE, 2014. It is also not denied that the applicant qualified the Written Examination and cleared the first stage of the recruitment. The outcome of the examination was dependent on the APARs of the relevant period, to be forwarded by the MEA to the UPSC for assessment by the Assessment Board. The MEA informed the UPSC that APARs for the period 2011-12, 2012-13 and 2014-15 are not available in respect of the applicant. The Assessment Board did not assess the APARs in respect of Mr. Kapil Nagi (the applicant herein) in view of the fact that sufficient APARs were not made available in his case.

As per the UPSC guidelines, in such cases where one or more ACRs were not written for any reason during the period of consideration, the DPC should consider the ACRs of the years preceding the period in question to complete the requirement of ACRs for required number of preceding years [generally 05 (five) years] and if in any case, even these are not available, the DPC should take the ACRs of the lower grade into account to complete the number of ACRs required to be considered. If this is also not possible, then all the available ACRs of preceding years should be taken into consideration for considering the suitability of the candidate for his assessment/promotion. However, a minimum of

3 (three) years ACRs would be required to consider a candidate for his assessment/promotion, by the DPC. Further, if the number of ACRs for the entire length of service is less than three, then the concerned department has to give a certificate to the effect that no other ACRs/APARs are available in their record.

The fact, however, remains that the responsibility for completion and submission of APARs was the duty of the Respondent No.1, i.e. MEA, and the role of the applicant was limited to submission of his self appraisals for the respective assessment years. The applicant has claimed that he has always submitted his APARs in time to the higher authorities, i.e. Reporting/Reviewing Officers, and thereafter, it was their responsibility to complete the same. As per the applicant, he had submitted his APARs for the period May, 2011 to March, 2012 and April, 2012 to December, 2012 to the Reporting and Reviewing Officers in time and, thereafter, they have to complete the same in time, who failed to do so and, for that reason, the Respondent No.1 (MEA) had not submitted these APARs of the applicant in time to the Respondent No.2 (UPSC). The applicant on his own has approached VCR Section under Respondent No.1 (MEA) requesting them to approach the Reporting/Reviewing Officers to expedite his APARs, particularly when he has been declared qualified in the written part of the examination. The applicant has also claimed that APARs for the periods in reference were shown to be completed by the concerned officers on 14.07.2015, but they were sent to the applicant only in November, 2015 along with the covering letter dated 27.11.2015. The applicant had been graded „Outstanding‟ in both the APARs. As per the applicant, the self appraisals for the respective APARs were submitted on 10.05.2012 and 12.04.2013. In response to the RTI application dated 19.02.2016 filed by the applicant, he obtained a reply from the Respondent Commission vide letter dated 15.03.2016 that the vacancies advertised for the Category-V (for which the applicant had applied) were 51, but only 12 candidates have been selected.

The question before us is the candidature of the applicant to the post of Grade-I Stenographer in the cadre of Indian Foreign Service Branch B (Private Secretary) as per his merit, with all consequential benefits of seniority and pay-allowances with arrears thereof or otherwise. While it is a fact that the applicant has qualified the written examination and duly completed his self appraisals for the assessment years in reference, he was disqualified on account of shortfall of APARs for the concerned years. The Respondent No.2 (UPSC) vide its letter dated 30.12.2015 addressed to the applicant clarified that he qualified the written part of the Examination for Category-II. However, in the absence of sufficient APARs (a minimum of 4 APARs) as on 01.07.2014, his candidature has been cancelled by the Commission for SOs/Stenos Grade LDCE, 2014. The Respondent No.2 on its part has taken appropriate action as per the laid down criteria for selection, as requisite number of APARs are pre-requisite. The onus of making available the APARs for the relevant period entirely lies on Respondent No.1 (MEA). The MEA may not be entirely responsible for this deficiency, if the applicant has not submitted his self appraisals for the APARs for the respective years and may not have forwarded the same timely to his Controlling Officers within the Department. We find merit in the arguments submitted by the applicant, who has been reported „Outstanding‟ in the respective APARs. However, the delay in assessment has taken place, which has caused prejudice to him.

Accordingly, the O.A. is allowed and the impugned letters dated 30.12.2015 and 15.02.2016 are quashed. We direct the Respondent Nos.1 and 2 to render a fair chance to the candidature of the applicant and re-assess his candidature by expanding the scope of APARs, as stipulated in the guidelines of the UPSC in terms of para 6.2.1 (c) of the DoP&T OM No. 22011/5/86-Estt.(D) dated 10.04.1989. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.