Shachindra Gautam vs Reserve Bank Of India And Others

The petitioner had filed I.A. No.15050/2017, an application for taking documents on record and the respondents had sought time and submitted their reply to the said application on 13.12.2018.

However, considering the issue involved and the documents filed along with I.A. No.15050/2017, the application is allowed and the documents annexed therewith are taken on record.

Since pleadings are complete, with the consent of the parties, the matter is heard finally.

This petition is filed under Article 226 of the Constitution of India. The petitioner in the instant petition is mainly claiming that his Revised Performance Appraisal Report (PAR) of the year 2013-14 be communicated to him and the respondents be further directed that on the basis of said revised PAR, his case for promotion on the post of Assistant Manager, Grade-A for the panel year 2016, be considered and if he is found suitable for promotion, then the same be granted to him for the panel year 2016.

This Court vide order dated 15.09.2017 has directed the respondents for keeping one post vacant in the panel of year 2016, on which, the petitioner is claiming promotion.

However, the respondent/Bank denied the claim of the petitioner saying that the revised PAR is required to be reviewed further as the same has been written by the incompetent authority of the respondent/Bank.

The respondent/Bank have also moved I.A. No.12662/2019 on 16.10.2019, an application for seeking permission to reassess the PAR of the petitioner, but that has not been adjudicated and no order has been passed thereof.

The petitioner further submitted that the respondent/Bank is somehow avoiding to consider his claim for promotion and depriving him to get the same. Therefore, either the case of the petitioner be considered for promotion without taking into account the PAR of year 2013-14 as the same had not been communicated to him, or on the basis of revised PAR his case be considered for promotion. But, in the facts and circumstances of the case, the respondents may not be permitted to re-assess the revised PAR as the same is nothing but a futile exercise as has been offered by the respondent/Bank just to cause delay and to deprive the petitioner to be considered for promotion to the post of Assistant Manager, Grade-A.

The facts of the case adumbrated in a nutshell are;

that the petitioner was appointed on 07.01.2013 on the post of Assistant in the Reserve Bank of India, Regional Office, Bhopal. Initially, he was posted in the department of Information and Technology (DIT), Central Office, Mumbai and thereafter he was transferred to Regional Office Reserve Bank of India, Bhopal on 11.04.2014 and he joined at Bhopal on 15.04.2014.

The petitioner was not communicated the PAR for the year 2013-14, then he applied under Right to Information Act and received the copy of the same. As per the supplied PAR for the year 2013-14, the petitioner came to know that the same has been written by an officer under whom the petitioner worked just for two and half months. As per the petitioner, the Master Circular of Annual Performance Reporting System of Class-III employees of RBI dated 01.07.2011, paragraph 3.6 of the said circular provides that in case an appraisee is to be transferred in another centre/department after completion of period of six months or more of a reporting year, his PAR should be immediately recorded and subject to review by the Reviewing Officer without waiting for the reporting year to end. The petitioner then reported the matter to respondent No.2 by raising the issue with respect to PAR for the year 2013-14 pointing out that the Reporting Officer and the Reviewing Officer both were from the Regional Office, Bhopal, under whom the petitioner has worked for only two and half months. As per the petitioner, the said PAR had to be written by the officer under whom he has worked for more than six months. The petitioner was although considered by DPC, but not found fit to be recommended for promotion as his PAR of 2013-14 was downgraded and came in the way of his promotion. The petitioner made a representation on 21.04.2017 requesting therein either the PAR of the year 2013-14 be nullified and an average of subsequent years' marks be awarded to him for the year 2013-14 or a fresh review of PAR for the year 2013-14 should be done and further requested that accordingly, his result should be revised and fresh score card should be issued and accordingly his case for promotion to the post of Assistant Manager, Grade-A be considered. A representation was also given by the Employees' Association in the month of September 2017 and when nothing was done, the petitioner filed the instant petition claiming either the revised PAR be communicated to him or ignoring the PAR of year 2013-14 by giving average grading, his case be considered for promotion.

However, during the pendency of this petition, the petitioner's PAR was revised and a copy of the same for the year 2013-14 was supplied to the petitioner, in which, the petitioner has been upgraded and was awarded 190 marks as overall grading. The petitioner, therefore, claimed as per the upgradation, the new weighted total score came to be 56.63 which is above to the cut-off marks i.e. 55.20, secured by the last selected candidate for the panel year 2016 and accordingly, his case be reconsidered for promotion. The petitioner moved I.A. No.15050/2017, an application for taking document on record annexing the documents relating to revised PAR. The I.A. has been allowed and documents annexed therewith have also been taken on record.

The respondent, however, in the reply to I.A. No.15050/2017, has stated that the PAR of the petitioner for the year 2013-14 though reviewed, but that needs further review as the same has been done by the incompetent authority.

The respondent/Bank also filed reply to the petition, but in pursuance to the documents filed by the petitioner i.e. the revised PAR, the stand taken by the respondent/Bank in their reply, has lost its importance and, in fact, it is not necessary to be considered for adjudicating the issue involved.

Although, during the course of arguments, the learned counsel for the petitioner has argued that the respondent/Bank cannot be permitted to reassess the revised PAR of the petitioner of year 2013-14. He has also submitted that this is nothing but a stand of the respondent/Bank just to avoid the petitioner to get promotion and he has also argued that in the facts and circumstances of the case, the said application and request made by the respondent/Bank, deserves to be dismissed and the case of the petitioner has to be considered in accordance with the revised PAR and communicated him.

Shri Naman Nagrath, learned senior counsel submitted that in view of the request made by the petitioner in his representation for getting his PAR reviewed for the year 2013-14, the same will be done by the respondent/Bank if a short time is granted. He has also contended in the reply to I.A. No.15050/2017 that the respondent/Bank has clarified as to how the revised PAR cannot be said to be proper as the same has been revised by the incompetent authority. He has also submitted that the respondent/Bank has sought explanation from the officers who have committed the mistake while revising the PAR of the petitioner. He submitted that in view of the stand taken by the respondent/Bank in the reply to I.A. No.15050/2017, the application for seeking permission to reassess the PAR revised by the respondent/Bank, may be allowed so that actual grievance of the petitioner may come to an end.

The prayer made by the learned counsel for the respondent/Bank has been opposed by the petitioner contending that in over all circumstances, the same cannot be considered.

After hearing the factual and rival legal contentions of the learned counsels for the parties, the issue emerging for adjudication is;

"whether the respondent/Bank can be granted permission to revisit the revised PAR of the petitioner for the year 2013-14 and if not, whether the direction can be issued to the respondent/Bank to consider the case of the petitioner for promotion in view of the revised PAR communicated to the petitioner and brought on record by moving an application i.e. I.A. No.15050/2017?"

Indubitably, the petitioner was initially not communicated the PAR for the year 2013-14 and the same was made available to him only when he applied under RTI. It clearly indicates that it was lapse on the part of the respondent/Bank for not communicating the said PAR to the petitioner and because of the said lapse, the case of the petitioner was not found fit to be recommended for promotion to the post of Assistant Manager, Grade-A. It is also not in dispute that the PAR of 2013-14, which was made available to the petitioner under RTI, was not written by the competent authority. Therefore, he made a representation to the respondent/Bank pointing out the said mistake and considering his request, the respondent/Bank reviewed the said PAR and upgraded the petitioner and thereafter the said review PAR was communicated to him.

The respondent/Bank in reply to I.A. No.15050/2017, filed certain documents showing that the explanation is called from the officers who have committed mistake and reviewed the PAR of the petitioner though they were not competent. In the reply, the respondent/Bank has taken following stand:-

"10. That Paragraphs 3.6 and 3.7 of the Master Circular on Annual Performance Reporting System for Stall Class III dated July 1, 2011 provide as follows:-

"3.6 Transfer / Retirement of Appraisee or Reporting / Reviewing Officer :

The performance appraisal report in such cases may be recorded as under :

(i) in case an appraisee is to be transferred to another centre / department after completing a period of six months or more of a reporting year, his/her PAR should be immediately recorded and subjected to review by the reviewing officer without waiting for the reporting year to end.

3.7 Recording of reports for the broken period Wherever the reports are recorded for broken period, it should be ensured that:-

i These reports are recorded for full marks / entire reporting year;"

That it is submitted that Shri Arun P.R. was the competent Reporting Officer of the Petitioner and Shri Sachin Shende, GM was the correct Reviewing Officer for the Petitioner, being the General Manager in Charge of the Primary Data Centre (PDC). However, it has recently come to the notice of the Bank that instead of Shri Sachind Shende, GM, Ms. Darshana Kulkarni, DGM, DIT, CO, has reviewed the said PAR because Shri Sachin Shende, GM was on leave when the letter dated June 7, 2017 was received from HRMD CO and Ms. Darshana Kulkarni, was heading the department on that day Ms. Darshana Kulkarni was posted at Ahmedabad Office from September 2, 2013 to June 6, 2014, and therefore, was not competent to review the Petitioner's appraisal for the period July 1, 2013 - June 30, 2014. Copies of the Office Orders for the transfer to Ms. Kulkarni are enclosed herewith and marked as ANNEXURE R/E."

As per the respondents' own showing, there was a letter dated 30 August, 2018 of S.R. Samant, Assistant Manager, addressed to the Chief General Manager-in-charge, Human Resource Management Department, Reserve Bank of India, in reply to the explanation given by Shri Samant. The important part of the explanation, while assessing the merit of rival submissions be necessary to advert to -

"As stated above, Shri Sachindra Gautam, who was attached to PDC, Kharghar, was assigned varied tasks from time to time in PDC due to which he had to report to different Officials from time to time. These details were not available in the official records in DIT, CO, and, therefore, the inputs provided by Shri Gautam could not be verified in DIT, CO. It was mentioned in the email to PDC that the said information was as "understood from Shri Gautam". (Emphasis Supplied)

Further, a letter dated 4 October, 2018 of Shri S.Y. Sevak, Assistant Manager, who also clarified that he has not violated any regulation and he acted upon the instructions of his superiors. The relevant part of his explanation needs to be mentioned -

"viii) From the replies from the Bhopal Office dated  September 13, 2018 and September 25, 2018, it  transpires that Shri Gautam had served from  July, 2013 to April, 2014 (more than six months of  the reporting year 2013-14) at Central Office and therefore, as per the terms of para 3.6 (i) of the  Master  Circular  No.CO.  HRDD  G.5/32/4.02.  14/2011-12 dated July 1, 2011, his PAR should have been reported and reviewed for the entire reporting year by the respective Reporting Officer  and Reviewing Officer at the Central Office itself.

Not only that, reported and reviewed PAR in respect  of  Shri  Gautam,  should  have  been forwarded to Bhopal office along with the Service  Record of Shri Gautam. As per the reply given by Bhopal office "no such record is found in service particulars of Shri Gautam." Now, whenever, an employee/officer is transferred from one Regional Office to another, his entire Service Record is forwarded  to  the  office  where  he/she  is transferred and the HRMD of that office receives  the same. In the case of Shri Gautam, if the Bhopal office has not received the PAR for the period from July, 2013 to April 15, 2014, onus was on Administration Section to ask for that  from Central office. PAR section was not having any details regarding Shri Gautam's transfer to Bhopal office and his period of service at Central  office. Obviously, it is not a lapse or fault of PAR section.    (Emphasis Supplied)

4) Para-4 - Regarding to submit explanation as the then AM of the PAR class III. -

On the basis of the important and vital facts given as explanation in para 3, it can be stated that :

There are not standing clear instructions regarding mapping to be done while forwarding PAR forms to different Departments in respect of Class III employees.

There are no precedent/precedents to suggest that mapping procedure was followed by my predecessors looking after the subject of PAR at Bhopal office.

There were no verbal or written instructions from my superiors for mapping each and every PAR in respect of Class III employees.

I was not provided any information regarding transfer of any class III employee from one center to another and also from one department to another and the duration of service in such cases. Therefore, in absence of such information, I was not asked or expected to map the PAR form in respect of any employee including Shri Gautam's. The same practice and procedure was followed for 3 consecutive years without any instructions by superiors contrary to that. So it cannot be construed as my 'lapse' in not mapping the PAR form in respect of Shri Gautam. The case of transfer from one centre to another centre in class III cadre is not a regular administrative feature. No other specific or general details/instructions whether verbal or written with respect to PAR work of class III was given to me. PAR section dealt with the case of Shri Gautam in similar way as all other class III PAR cases dealt by me.

I did my work faithfully and in right earnest as per the specific instructions by my superior and to their utmost satisfaction at that time.

In fact, once I was complemented in writing by the then AGM, HRMD and then Regional Director, Bhopal office for my efforts and work to complete the work of PAR well before the time limit.                (Emphasis Supplied)

I had no role to play in the issue of non-receipt of the PAR in respect of Shri Gautam for the period from July, 2013 to March, 2014, by the Bhopal office and therefore there was no breach, lapse and contravention of the para 3.6(i) of the said Master Circular or Central Office Guideline on my part.

PAR in respect of Shri Gautam for the period from April, 2014 to June, 2014 is recorded for broken period of 2 months for full marks and the same was perused and approved by the then AGM and DGM respectively. Therefore there was no breach, lapse and contravention of the 3.7 of the said Master Circular or Central Office Guideline on my part. (Emphasis Supplied)

In view of these facts, I humbly believe that there was no lapse or contravention of any Guidelines or instructions on my part while dealing with the case of PAR in respect of Shri Gautam, when I was working as AM - Leave and PAR for Class III employees at Bhopal office. I am sure, your good self will consider all the facts and aspects of this case and accept this explanation."

In view of the aforesaid stand taken by the Bank officers, who have been alleged to have committed mistake, they have also denied the fact that any lapses on their part while reviewing the PAR of the petitioner for the year 2013-14. But they have also stated the fact that the details were not available in the office record for verifying the inputs provided by Shri Gautam and it clearly indicates that despite their repeated request, the relevant information for reviewing the PAR, were not made available in the respective office of the respondent/Bank.

I have examined the respective paragraphs of the Master Circular which deal with the Annual Performance Reporting System for staff Class III. The respective paragraphs 3.6 and 3.7, nowhere provide as to who would be the competent officer to write the PAR.

Not only this, but the respondents have also not made any specific stand in their reply for seeking permission to reassess the PAR of the petitioner that the material which were required to be considered for reviewing the PAR are available with them or not. Meaning thereby, the situation is same as it was existing on the date when officers of the Bank have reviewed the PAR of the petitioner for the year 2013-14. It clearly indicates that at every step, the respondents have shown their lapses in writing the PAR of the petitioner for the year 2013-14. It is not the case of the respondents that the petitioner persuaded the officers who have reviewed his PAR for the year 2013-14 on a representation made by him.

In view of the above, I find substance in the contentions raised by the learned counsel for the petitioner that the respondents are adopting tactics somehow to keep the petitioner away from getting promotion to the post of Assistant Manager, Grade-A. The PAR of the petitioner was reviewed by the officers of the respondent/Bank. Paragraphs 3.6 and 3.7 of the Master Circular provide as to in what manner the PAR should be written, but that does not say as to who could write the PAR.

In the present case, Smt. Darshana Kulkarni, the then Assistant General Manager (Grade-C), has acted as a Reviewing Officer, but nowhere is it pointed out by the respondent/Bank that in a Master Circular Smt. Darshana Kulkarni, could not have been acted as a Reviewing Officer and could not consider the respective material placed before her in relation to the petitioner that too under circumstance when the petitioner admittedly worked under her for some period. It is also not a case of the respondents that the petitioner influenced the Reviewing Officer and, therefore, she favoured him. It cannot be ignored that the Reporting Officer and the Reviewing Officer are the officers of the respondent/Bank and they have performed their part reviewing the PAR of the petitioner for the year 2013-14 and upgraded him on the basis of material placed before them. Merely because the respondent/Bank have taken a stand after communicating the review PAR to the petitioner that the same was not written by the competent authority, the permission to the respondent/Bank cannot be granted to reassess the PAR of the petitioner. In absence of specific stand about availability of respective material relating to the petitioner, the apprehension of the petitioner that the respondents will again harm him by giving him lower grading, cannot be ruled out. The petitioner has placed reliance upon the decisions reported in (2015) 14 SCC 427 parties being Prabhu Dayal Khandelwal v. Chairman, Union Public Service Commission and others and (2018) 18 SCC 640 parties being Rukhsana Shaheen Khan v. Union of India and others.

In both the cases, the Supreme Court provided for considering the case of promotion ignoring the un-communicated adverse ACRs by giving average adjudging ACRs of remaining year.

The petitioner in the present case has submitted that his case be considered by either taking note of the revised PAR communicated to him or by giving average grading without considering the PAR of 2013-14.

In the present case, since a representation was made by the petitioner, the Bank officers have reviewed his PAR and upgraded the same, therefore, his case needs to be considered on the basis of said review PAR.

As has already been discussed hereinabove, as to why permission to reassess the PAR already reviewed, cannot be granted to the respondent/Bank, this petition is allowed to the above extent, directing the respondent/Bank to consider the case of the petitioner for promotion to the post of Assistant Manager, Grade-A taking note of his review PAR as has been communicated to him of the year 2013-14.

The aforesaid exercise be completed by the respondent/Bank within a period of three months from the date of submitting the certified copy of this order and if he is found fit to be promoted, then he be also granted all consequential benefits granting him promotion with effect from the date when other similarly situated persons have been promoted.