Dr. R.K. Khola vs Union Of India (Uoi) And Ors. on 4 April, 2001

JUDGMENT

V. Ramakrishnan, Vice Chairman

1. The applicant who was serving as Engineer in the Space Application Centre-the Indian Space Research Organisation, Ahmedabad (ISRO) has filed the present O.A. where he has sought following reliefs:-

(a)     To quash and set aside the decisions of the Screening Committee and the D.P.C. held in 1990 for not promoting the applicant to the post of Scientist/ Engineer-SG.
 

(b)      To declare the action of the respondents taken in promoting Respondent No. 6 to the post of Scientist/Engineer S.G. w.e.f. 1.1.1991 as arbitrary and illegal and quash and set aside the same.
 

(c)     To direct the respondent authorities to "exchange" (it should be expunging) all the adverse and unfavourable remarks and incorrect overall gradings of the A.C.Rs of the applicant for the years from 1986 to 1991 and to quash and set aside the order dated 28.1.1992 which communicates the adverse remarks for the year 1991 as at Annexure 5-A and the order dated 14.2.92 as at Annexure 5-B communicating adverse remarks for the years from 1986 to 1990 and to direct that these adverse ACRs should not be relied upon.
 

(d)     To direct the respondents to reconstitute the Selection Committee (DPC) consisting of external experts and also to reconsider the case of the applicant alongwith other eligible candidates for promotion to S.G. Grade w.e.f. 1.1.1991 after 'giving' (it should be expunging) adverse entries from 1986 to 1991 years A.C.Rs.
 

(e)      To quash and set aside the Government of India letter dated 10.8.92 at Annexure IX which rejects the representation against adverse remarks.
 

(f)      To direct respondents to produce A.C.Rs of the applicant for the years from 1986 to 1991.
 

(g)      To quash and set aside guidelines contained in the O.M. dated 22.2.1988 which deals with career opportunities for Scientist/Engineer and lays down the procedure for selection and their periodical reviews.
 

(h)     To direct the respondent authorities to produce all the office Orders of the years from 1980 to 1991 showing the R. & D. task assigned to the applicant yearwise which he could not complete efficiently and successfully as alleged by the respondents. 
 

2. It may be mentioned that some of the reliefs were added later by filing amendment to the O. A. along with grounds in support there of at different times. Also relief at (d) was added by filing an M. A./50 of 92 and it was subsequently modified as stated above by filing another M.A./604/1995. The applicant in MA/50/92 had also asked that the A.C.Rs of the years from 1986 to 1991 should be sent to the Forensic Laboratory for checking handwriting and the dates. The Tribunal held that this is outside the scope of the reliefs asked for and did not allow the same.

We may also mention that after the O.A. was filed, the applicant was retired prematurely by the Government by taking recourse to the provisions of F. Rs 56-J. He filed MA/194 of 93, dated 5.5.93 for a direction that it should not be served on him but later on did not press the same as it had become infructuous. This order of premature retirement has been challenged separately in OA/407 of 1993.

3. This OA has a chequered history. This was admitted on 14.2.1992. The applicant subsequently filed MA/50/92 which was disposed of by the Tribunal by its order dated 3.3.93 allowing the amendments, except the relief for referring the A.C.Rs to the Forensic Laboratory as referred to earlier. He had also filed an MA/52/92 where he had sought interim direction that pending finalisation he should be considered for S.G. Grade promotion. This was rejected by the Tribunal by its order dated 28.4.1992.

He had also submitted OA/132/93 where he sought an interim direction that he should be considered for S.G. Grade promotion by the D.P.C. as on October, 1990. This was disposed of by the Tribunal by its order dated 3.5.1993 which had then noticed the provisions of the O.M. dated 22.2.1988 which had enlarged the scope of the authority of the Screening Committee and only those who were screened in (and not those who were screened out) are to be considered by the Review Committee or the Selection Committee and as such refused to grant the interim relief and rejected OA/132/93. He had then filed an MA/604/95 where he had sought an amendment to prayers in Clause (c) and (d) which was allowed by the Tribunal by its order dated 26.9.95. The applicant has changed his Counsel and wanted to argue the O.A. in person. Subsequently he had engaged Mr. P.H. Pathak as his advocate. There was also a change in the Counsel for the respondents. He later on filed MA/757/1995 where he had asked for production of a number of documents listed in para 6 of the M.A. This M.A. was allowed by the Tribunal by its order dated 6.12.95 and the documents listed in the MA. were directed to be produced by the department failing which an affidavit should be filed assigning the reasons for non-production. As regards MA/757 of 1995, the reply affidavit was filed claiming privilege in respect of some documents. The Tribunal considered the submission of the Government Counsel and gave certain directions. In particular, it directed that the proceedings of the DPC and Screening Committee should be shown. Meanwhile, the applicant asked for some more documents as at Annexure R-4 which were available. After getting these documents including copies of A.C.Rs the applicant filed MA/30/2000 where he had made some more amendments to the O.A. contending that this became necessary after seeing the documents from the respondents. A reply was filed by the respondents to the amended portion for which a rejoinder also is filed.

These are some of the developments in the course of the progress of this O.A. with the result that the case records have become voluminous.

4. Initially this was heard by a Bench consisting of Vice Chairman and Shri P.C. Kannan on a few occasions and the O.A. was reserved for orders on 22.12.2000. Before the orders could be pronounced Shri P.C. Kannan tragically passed away due to the earthquake in Ahmedabad on 26th January, 2001 and the O.A. was re-heard by the present Bench.

5. We have heard Mr. P.H. Pathak for the applicant and Mr. Akil Kureshi Special Counsel for the respondents and have taken into account the submissions of both Counsel and also the copies of the A.C.Rs of the applicant for the relevant period a copy of which had been made available to us and also the minutes of the Screening Committee and D.P.C. which had screened out the applicant for promotion and held him invalid for promotion and other relevant documents produced by the department in this connection.

We have also taken into account various Office Memorandums and Office Orders issued by the department.

6. Mr. Pathak for the applicant brings out that the main prayers of the O.A. are the following:-

(a)      To expunge all the adverse and unfavourable remarks and incorrect overall grading in the ACRs for the years from 1986 to 1991 (Annexure V-A and V-B).
 

(b)     To reconsider the case for promotion to S.G. Grade from 1.1.91 after ignoring the adverse entries of 1986 to 1991 A.C.Rs.
 

(c)     To quash and set aside the order dated 10.8.92 which rejected the applicant's representation against the adverse remarks, etc. 
 

7. We may mention that copies of the ACRs of the applicant from the years 1986 to 1991 were given to him as also some other documents. During the hearing Mr. Pathak did not press the challenge to the promotion of Respondent No. 6 to the grade of SG. He also did not seriously contest the validity of the guidelines shown in the O.M. dated 22.2.1988 but on the other hand relied on the same while challenging the constitution of the Screening Committee. As such the present O.A. is now confined only to the three reliefs brought out in the preceding paragraph.

8. Mr. Pathak submits that the applicant has prepared a number of research papers and has also received promotions to various grades from time to time and he has worked as Engineer SF Grade with effect from 1.1.86. In the normal course he was due for promotion as Scientist/Engineer SG with effect from 1.1.91. Mr. Pathak submits that this promotion has been denied to him only on the basis of certain adverse entries for the period from 1986 to 1991 and these adverse entries cannot be sustained and they should be expunged and ignored. He states that the A.C.Rs from 1986 to 1989 were written at one time on 2.8.1990 and the A.C.R. of 1990 was written on 2.4.91. These A.C.Rs suffer from serious irregularities. He alleges that a number of A.C.Rs written in ‘one go’ cannot be relied upon as held by the Courts. A number of columns have been left blank. According to him they were also written by incompetent authorities. To illustrate the 1990 and 1991 A.C.Rs. were written by Mr. P.P. Kale and Mr. U.R. Rao who were neither Reporting Officer nor the Reviewing Officer and they were biased against the applicant.

Mr. U.R. Rao Chairman was stationed at Bangalore and was not at all concerned with the R. & D. work by the applicant. Besides Mr. Pathak says that as per the relevant instructions only the Reporting Officer and the Reviewing Officer can give any adverse remarks and gradings. In the present case, the Reporting Officer who was a Group Director in many cases has assessed the applicant as well above average and the Reviewing Officer also has accepted the same. What is more Mr. U.R. Rao is not concerned at all with the work of the applicant as he is neither the Reporting Officer nor the Reviewing Officer. He alleges that gradings have not been given by a competent authority. According to Mr. Pathak the countersigning authority is not competent to give any adverse remarks nor can he change the gradings. The ACR form itself would show that the assessment has to be made by the Reviewing Officer. In the present case the Reporting Officer for a number of years had given good remarks and on that ground the applicant should have been graded as Very Good. The Director of the Centre who is the countersigning authority without any authority has given adverse remarks.

Mr. Pathak submits that gradings pertaining to certain years are changed without any authority by Mr. U.R. Rao, Chairman ISRO who is biased against the applicant and he is not at all concerned with the A.C.Rs of the applicant. As such the adverse remarks should be expunged and totally ignored. He also stated that as per the A.C.Rs the applicant should have been graded as A — for four years and B + for two years. The grading given by the Reviewing Officer was B + for four years and for two years the A.C.R. Was not written by the Reporting Officer and Reviewing Officer. Mr. U.R. Rao had given grading as B – for 1987, 1988, 1989 and made it to ‘C’ for 1990 and 1991 without any justification.

Mr. Pathak contends that Mr. Rao is prejudiced against the applicant for the reason that the applicant had made some complaints regarding fitness of Mr. Rao to hold the post of Chairman ISRO and has deliberately brought down his gradings.

Mr. Pathak states that the adverse entries were also not communicated to the applicant in time. The applicant had submitted a representation against these adverse remarks which was rejected by Mr. U.R. Rao who had himself given the adverse entries, Mr. Pathak says that under the settled law the representation should have been disposed of by a speaking order by a superior officer who is not biased. For these reasons it is submitted that the adverse entries should be expunged and the applicant should have been given correct overall gradings as per the entries in the columns given by the Reporting Officer.

Mr. Pathak submits that the applicant was ‘screened out’ for promotion to SG Grade and this was illegal. When the screening Committee met all these adverse entries were not communicated to the applicant and they were done only in January and February, 1992 and “these A.C.Rs from 1986 to 1989 were written only on 2.8.1990 whereas the ACR for 1991 was written on 2.4.1991. It is not open to the DPC to take into account uncommunicated adverse remarks. Mr. Pathak says that the screening procedure was seriously flawed in the case of the applicant as uncommunicated adverse remarks were taken into account by the Screening Committee whereas the same should have been ignored. The Screening Committee also had not taken into account the R. & D. works done by the applicant. It is claimed that the applicant had prepared technical papers and reports which was not brought to the notice of the Screening Committee and the recommendations of the Divisional Head were not placed before that committee. The Screening Committee was not constituted in accordance with the relevant instructions. As per the guidelines framed by the respondent department the Screening Committee should consist of only three Members were as two more Members namely Shri N. Pant and Shri K. Kasturirangan who are biased against the applicant were included in the committee. The Screening Committee proceedings were approved by the Chairman who is not competent to do so in respect of Group A Officers.

The applicant sent a report on 19.12.90 protesting against his non-promotion but it was rejected whereas the question of his promotion should have been reconsidered.

Mr. Pathak also urges that when the promotions are given purely on the basis of merit in concerned category, the applicant ought to have been given a reasonable opportunity to present his case before the Committee and such an assessment should have been done after taking a complete and regular interview by the Selection Committee consisting of two to three external Members drawn from the research field. The applicant was not at all considered by the D.P.C./Review Committee and this is illegal.

Mr. Pathak also alleges that there is a deliberate attempt to deny the legitimate dues of the applicant as adequate facilities were not provided by the authorities and this shows mala fides on the part of the authorities. He reliefs in this connection on the decision of the Supreme Court in the case of P.K. Chinnaswamy, AIR 1988 SC 78. In support of these contentions Mr. Pathak also refers to the decision in the cases of Baikuntha Nath Das’s AIR 1992 SC 1020=1992(1) SLJ 177 (SC), and the case of Madan Mohan Chowdhary, 1999(3) SCC 196, besides in Chandra Mohan Nigam’s case – AIR 1977 SC 2411 and on the decision of the Gujarat High Court in the case of MM. Valand, 1978(1) SLR 489.

It is also urged that during the 22 years of service the applicant was never informed or issued any warning by any of his superiors in R & D work. According to him it should therefore be taken that Research and Development work, intellect and technical competence of the applicant had been excellent from 1.3.1971 to January, 1992.

It is also urged that Mr. U.R. Rao and Mr. P.B. Kale were seriously prejudiced against the applicant and even though they have been made respondents by name, they have not controverted the allegation levelled against them. He submits that the allegation of mala fides against them should be taken as established. For these reasons Mr. Pathak says that the O.A. should be allowed.

9. Mr. Akil Kureshi, Special Counsel for the respondents opposes the O.A. He does not agree that the applicant is a very meritorious officer as claimed by him. He brings out that he had come to adverse notice earlier also but he was not found fit for promotion. He had earlier approached the Tribunal by filing O.As as TA/17/86 and TA/152/86. The Tribunal did not think it fit to grant any relief to him or to advance his promotion in the grade of Engineer- SF. Mr. Kureshi does not agree that the writing of the A.C.Rs including awarding adverse remarks is in any way illegal. There is of course, some delay in writing the A.C.Rs but that arose because the applicant did not write his self appraisal as required in the ACR form. The ACR form given to him every year for writing his self appraisal from 1985 onwards were not returned but this came to the notice of the department when his case came up for review for promotion from SF to SG Grade to which he was eligible for consideration and review after five years of service in SF Grade as on 1.1.91. In August 1990 when his case to be considered by the Screening Committee for review for promotion it was found that in the absence of A.C.Rs his case could not be processed. Mr. Kureshi submits that at that point of time as the applicant had not returned the original A.C.R. forms sent to him the A.C.Rs for the period from 1986 to 1990 were written by the available officers with the available details. Mr. Kureshi has drawn attention to the C.R. dossier of the applicant and his overall performance had not been upto the mark. The applicant’s failure to write his self assessment report can lead to an inference that he has not done anything worthwhile. In view of the peculiar circumstances of the case, the fact that C.Rs. were written at much a later stage cannot vitiate the findings of the authorities or make them illegal in any manner. Mr. Kureshi submits that in terms of the Headquarters O.M. dated 24th May, 1984 writing of A.C.Rs of Scientists/Engineers were standardised based on the recommendation of the Committee. The department follows the flexible complimenting scheme under which deserving persons are promoted to the higher grade after a lapse of some time on the basis of their performance irrespective of the availability of vacancies. In view of this scheme in ISRO which is a large specialised scientific organisation a detailed ACR format has been devised. Again by O.M. dated 2.7.86 it was decided that A.C.Rs of all Scientist/Engineers Grade SF working in ISRO will be sent to the Chairman ISRO for his counter signature. To give effect to this decision, the relevant C.R. form was amended to provide for the remarks of the Chairman, ISRO. The Chairman, ISRO is in overall charge of the organisation and he is entitled to make his assessment of the work performance of senior Scientist/Engineer. The fact that Mr. U.R. Rao has given some remarks or that he has decided the gradings does not in any way vitiate the C.R. writing process.

Mr. Kureshi emphatically denies the allegation of mala fides against Mr. U.R. Rao and Mr. Kale, These scientists are highly renowned and are far senior to the applicant and they would have nothing personal against any individual scientists or Engineer when there is a large group of employees working under them. Mr. Kureshi also says that excepting for making a bald allegation the applicant has not made available any evidence to substantiate the charge of mala fides against them. In the circumstances, it is not necessary for these two officers to file any reply as no specific instance to warrant the allegation of mala fides has been furnished, as to call for rebuttal. The applicant has chosen to write to various authorities regarding the competence of Shri U.R. Rao. Merely because of this, he cannot draw any inference that Mr. U.R. Rao was prejudiced against him or that he would act in the mala fide manner. There is no basis for such a presumption.

Mr. Kureshi also does not agree that the procedure followed while considering the applicant’s case for promotion to the next higher grade is in any way illegal or irregular. There are detailed instructions which regulate the promotion as per the flexible complimenting scheme and there is no basis for any presumption that the Members of the Screening Committee could be prejudiced against him. The Screening Committee had to act on the basis of the performance and when the applicant has not written his self assessment he obviously did not make any worthwhile contribution. Otherwise, he would have written the same in the self assessment. Mr. Kureshi says that the applicant seems to be highly egoistic and had always been complaining about his superiors and asking for various facilities and perks. He has not bothered much about doing any useful work to achieve the goals of the organisation where he was working.

Mr. Kureshi says that the O.A. is devoid of any merit and it should be dismissed.

10. We have carefully considered the submission of both sides and have also gone through the volume of materials before us.

The main grounds urged in support of the O.A. are that firstly the A.C.Rs of the years from 1986 to 1991 have not been properly recorded and the adverse remarks and alleged incorrect gradings should have been ignored for the purpose of promotion. They were also not communicated to the applicant in time. Secondly the action of the respondents in screening out the applicant and holding him ineligible for promotion to the SG Grade on the basis of adverse remarks which are not communicated and without subjecting him to an interview by the D.P.C. is arbitrary and illegal. It is contended that the Screening Committee has not been properly constituted.

11. As regards the first ground pertaining to the adverse remarks exception has been taken to the manner in which the C.Rs have been written. These relate to (a) when the C.Rs. were written (b) what has been written in the C.R. and (c) who had written the same. Flowing from this, it has been contended that the adverse remarks were not communicated to him in time and he did not get an opportunity to present his case.

12. The main ground of challenge to the ACR is that adverse entries in ACRs for 1986, 1987,1988 and 1989 were written at one time only on 2.8.90 and they were written in ‘one go’. As per the relevant instructions, A.C.Rs should be written immediately after end of the current year. It is argued that even if the applicant had not given him self assessment report the authority should have waited for some time and got a duplicate set and written the A.C.Rs which they have disregarded. He had given the self assessment report for the year 1990 on 25.4.91 and for the year 1991 he sent the same on 31.1.92 and for 1992 on 25.1.1993. These have not been taken into account. Even otherwise, when there is no self assessment report the instructions require the authorities to proceed to write the A.C.Rs and not to wait indefinitely for receipt of self assessment. In the present case, the applicant has referred to the decision of Supreme Court in the case of Madan Mohan Chowdhary (supra) where the Apex Court has held that when the A.C.Rs are recorded in ‘one go’ such adverse entries cannot be taken to have been made in the normal course and could not be taken into consideration. Similarly the Gujarat High Court in the case of M.M. Valand, (supra) held that when entries are recorded in violation of the instructions issued by the Government such adverse entries should be ignored. He has contended that as there are clear instructions regarding the time-frame for writing of the A.C.Rs. and as they have been disregarded and the ACRs were written in one go, the adverse entries should be ignored for the purpose of promotion.

13. The applicant’s claims that what is written in the A.C.R. is not correct. He regards himself as a very bright officer and this should have been reflected in A.C.Rs.

The applicant after perusal of the xerox copy of A.C.Rs from 1986 to 1991 has argued that for certain years in some of the columns pertaining to intellect, Professional ability and managerial capacity he has been graded as ‘Normal’. According to him this shows malafides and non-application of mind. Some of the columns in the ACR have been left blank and in the absence of the same, it would not be possible to arrive at a proper grading. In some cases they are not dated. He has been given ‘C’ Grade in 1990 and 1991 ACR but no reasons have been given to justify such a remark. It is also argued that even assuming but not admitting that ACRs entries in the various columns are correct the Grading as per the formula for that period would have been A – for four years and B + for two years for the period from 1986 to 1991 whereas they have been substantially downgraded.

14. The applicant also submits that the ACRs are not written by the competent uthorities. He contends that Shri Kale had misused his authority for writing the ACRs for 1986 as he was not Director of the Ahmedabad Centre in that year. He also says that there is no provision for the Chairman ISRO to make any remarks. The applicant refers to the Office Order of the department dated 23.12.85 which provides that for scientist/engineer SF Grade the Reporting Officer is the Group Director, the Reviewing Officer is Deputy Director and the countersigning authority is the Director. This order did not provide for any role for the Chairman, ISRO. The same has been reviewed by Mr. U.R. Rao who according to the applicant is prejudiced against him. He has also referred to certain instructions of the Government namely Director General Post & Telegraph’s letter dated 21.1.1983 which provide that there are only two levels for writing the ACRs namely, the Reporting Officer and the Reviewing Officer. He says that it was not open to Mr. Kale as Director of the Centre to make any comments about the work and conduct of the applicant. He also says that in 1990 and 1991 ACRs were not written by the Reporting and Reviewing Officer but was written by Mr. Kale who had left several columns blank. He submits that Mr. Kale had no authority to write his C.R. and he can at best countersign the same and Mr. Kale cannot given any comments regarding the work of the applicant.

So far as Mr. U.R. Rao is concerned, the applicant had initially relied on the office order dated 23.12.85 which did not provide any role for the Chairman, ISRO. But subsequently, the respondents during the final hearing had made available a letter dated 2nd July, 1986 conveying the decision of the ISRO that the ACRs of Scientist/Engineer in Grade SF and above will be forwarded to Chairman, ISRO for his counter-signature. The respondents had also shown on O.M, dated 30.3.89 which had amended the C.R. form to insert a column regarding Remarks of the Chairman ISRO to give effect to this decision of 1986. The applicant had strongly objected to the production of this document at the late stage contending that they were photo copies whose authenticity is questionable and that such documents should have been produced by the respondents earlier whereas the applicant could have challenged the same. He had also contended that production of the document at such a late stage in the form in which it is produced has been done at the instance of Mr. U.R. Rao with mala fide intentions and that these documents were fabricated. The applicant contends that the persons who had written adverse remarks were not competent to write the same and such adverse entries should be disregarded.

15. Flowing from the above, he submits that there was considerable time-lag in communication of the adverse remarks which according to him should have been done by January 25 of the following year and the belated communication of the adverse remarks also would vitiate the entire exercise. He relies in this connection on the decision of the Supreme Court in the case of State of Mary ana v. P.C. Wadhwa, AIR 1987 SC 1201=1987(2) SLJ 162 (SC).

16. He contends that his representation against the adverse remarks which were given by Mr. U.R. Rao was rejected by the same gentleman. According to him the representation against the adverse remarks should be considered by appellate authority who shall normally be at least one grade above the countersigning officer. He refers to para 1.5 of the ISRO Headquarters orders dated May 24, 1984 in this regard.

17. We have carefully considered the challenge to the adverse remarks as brought out by the applicant particularly with regard to the three elements of when it was written, what has been written and by whom it was written.

18. The respondents have contended that the A.C.Rs for 1986, 1987, 1988, and 1989 were written in “one go” as the applicant did not write self assessment report in the ACR form which were sent to him and did not return such ACR forms. This came to the notice of the Centre when his case came up for review for promotion from SF to SG Grade to which he was eligible for consideration and review after five years of service in SF Grade as on 1.1.91. In August 1990 when his case was to be considered by the Screening Committee for review for promotion it was found that in the absence of ACRs his case could not be processed, and at that point of time, ACR for the period from 1986-1990 were written by the available officers with the available details. They argue that applicant has been uncooperative and has constantly been in friction with his higher officers.

19. We may at the outset mention that the applicant has not chosen to give his self assessment at all for the years 1986, 1987, 1988 and 1989. For the year 1990 he forwarded the self assessment on 25.4.1991 when the process of completing the C.Rs was to be over by the middle of January of that year.

The I.S.R.O. order dated 24.5.1984 deals with the various aspects of A.C.R. writing.

Para 1.2 of this says:-

“Every staff Member shall hereafter give a self contained assessment -appraisal report about the nature of work performed by him during the period under report in the space provided in respective format. This is essential so that the official can project his achievements and contributions to the organization in the concerned year.

20. The applicant has sought to argue that he was not given any work during the relevant period and as such could not write his self assessment report. In para 6.2 of the O.A. he has contended that he was given step-motherly treatment by the respondents and has alleged that he has not been given any man-power, funds, laboratory facilities, equipments and other supporting materials to carry out research and development work and that even some of the facilities given to his juniors were not given to the applicant and he had been submitting representations in this regard. In the course of hearing, this was given as one of the reasons as to why he did not give his self assessment.

In para 6.2 of the O.A. the applicant has referred to a copy of the letter dated 18.2.75 and also extract from the proceedings of the D.P.C. of 1975. He has also furnished a copy of the confidential note given by Professor Yash Pal addressed to the Director SAC dated 14.8.75. (It is not clear as to how he had obtained copies of such confidential documents). In para 6.6 he refers to the copies of the letters sent by him to the various authorities (which is enclosed as Annexure-6). This confidential letter dated August 20, 1985 is from the applicant to Professor P.O. Bhavsar, Director SAC. We may reproduce part of the letter which reads as follows:-

“There is no one in whole ISRO who is superior to me technically and academically. Further I am an R & D Engineer and officer superior to me must be superior to me in R&D achievements. The ‘so called superiors mentioned by you’ have always been using all sorts of corrupt, malafide and unscientific methods in regard to my service matters, and due to all these corrupt practices they have been successful in ruining my brilliant technical career. For the last more than 10 years I have been constantly requesting Director, SAC as well as Chairman ISRO to provide me justice but all in vain. After this letter from you I have reasons to believe that you are also a party in doing injustice to me. Therefore I have to appraise for all these injustices being done to me as well as other malpractices and scientific corruptions being done in SAC and ISRO by you people to Shri Rajiv Gandhi, Prime Minister of India. “Being honest and true citizens of India, I have got all rights to approach the Prime Minister in regard to all such matters which are of utmost importance in the interests of the nation”.

It may not be out of place to point out that you are one of the persons who give false information to media regarding their achievements etc. with photographs in order to again cheap popularity. It is a misuse of media as well as authority and must be stopped in ISRO.

I am ready to prove before any impartial experts audience that my technical qualifications and R & D competence and achievements in ISRO are second to none including yourself. But it is unfortunate State of affairs in ISRO that you are placed at the top post of Director, SAC with very fat salary and perks and with full authority and powers whereas I am still kept at a very low post of Engineer-SE with a relatively meagre Salary and with no powers etc.

I may also add that I am legally qualified person and have got indepth knowledge of all sorts of rules and regulations. Therefore for your information, I may mention that I have never acted in breach of Central Civil Services (Conduct) Rules. You have just made these imputations against me with prejudice mind and without any indepth study and implications of Conduct rules. At various occasions, in past, while the Executive Council of STASOA was having discussions with Director, SAC and Chairman, ISRO, it was observed that you are quite unfamiliar with ISRO promotion rules and procedures and various other matters (namely getting an amount of Rs. 1 lakh from UNESCO) happening in SAC and ISRO. You may recollect the comments of Chairman ISRO which he made about you during his meeting with STASOA on March 16, 1985. His comments were “Mr. Bhavsar you do not know many things” etc. from all these you may better estimate your knowledge about the rules and regulations and SAC affairs.”

I hope in future you will do the justice to me and will not work with prejudiced mind towards me.”

There is also a letter dated 18.2.87 which refers to some discussion which took place in the presence of the Minister but despite that his grievance has not been solved and the Director SAS has still not given him any hardware R & D work, Manpower, Funds and other supporting facilities. He says that he has not been promoted from SF Grade to SG Grade which is discriminatory and with malafide intentions by earlier Directors of SAC. On 24.10.1988 he sends a telegram to Mr. Rajiv Gandhi the then Prime Minister of India where he claims that his bright career has been spoiled completely whereas his technical qualifications and achievements are second to none in ISRO. He alleges that his ACRs are spoiled. He also alleges that there are other issues also. The last portion of the Telegram reads as follows:-

“I wish to appraise you about the gross irregularities, manipulations and favouritism being done by Director, SAC and Chairman, ISRO. I sincerely request you to give me an early personal hearing in the interest of the nation. Letter follows. With regards.”

Much earlier in 1975 the DPC consisting of five senior persons had met and made certain observations which the applicant has enclosed as Annexure. We may extract part of the observations of the D.P.C. as follows:-

“After the interview three members of the committee felt that the R&D work he has accompalished can not be regarded as ‘exceptionally good’. The members also could “remotely sense” that Dr. Khola is a difficult person to “manage”, although the Head of this division could not express that clearly. The committee felt that Dr. Khola be granted two extra increments in the present grade and his case be reviewed only three year’s later. If this is accepted, the extra increments will be w.e.f, 1st March, 1975. The head of the division, however, recommended that Dr. Khola ‘be promoted to SE Grade1.

If the committee’s recommendations of 2 increments and no change of grade is accepted, we expect a strong reaction on the part of Dr. Khola- representations to Chairman, and more troubles to the Head of the division and perhaps Director, SAS also. To grant ‘apromotion’ to avoid any agitation also may not be correct, and will perhaps create more problem within MID and outside MID.

It is recommended that in this case Director, SAC take a decision in consultation with Chairman ISRO.”

The confidential note dated 14.8.75 from Shri Yash Pal to the Director SAC which has been enclosed by the applicant reads as follows:-

“Following the recommendations of A&P committee Dr. Khola’s case was discussed with Chairman, Chairman also talked to him individually and later with me. Afterwards I had a discussion with Dr. Khola again. Though in terms of work related to things like Multiple beam antenna, the proposal for torus antenna, initial work in regard to new design for community reception antennaetc. Dr. Khola’s contributions are ‘fairly good’. He has unfortunately found him to be at the fringe of major activities and did not have the chance to be involved in anything which was funded at any substantial level. Considering this as well as the discussions which Chairman had, I feel that it would not be right to postpone his review for promotion for another three years. It is therefore decided that in Dr. Khola’s case, status-quo (with normal increment) will be maintained. This year and that he will be reviewed again next year. During this year Dr. Khola will have a chance to work in another situation and so it will be possible to make an overall assessment next year.”

There are other communications in the same way which are produced by the applicant himself. We may also add that while disposing of TA/17/86 and TA/152/86 the Tribunal noted that he had got grievances against number of persons.

These have been brought out in some detail to show that the applicant has been harbouring a deep sense of grievance for a very long period and had convinced himself that he was a man of very high calibre but all the others are trying to suppress him.

21. There is therefore substance in the contention of the respondents that the applicant has been un-cooperative and does not fit into the culture of a highly specialised organisation which calls for cohension and team spirit.

22. The failure of the applicant to write his self assessment report for the years 1986, 1987, 1988 and 1989 has remained without adequate justification.

The applicant has stated that he has sent his self assessment report for the year 1990 on 25.4.1991. As per the relevant instructions of the organisation for writing the ACRs, this was well after the last date as prescribed in the Organisation’s Order dated 24th May, 1984 which prescribes the last week of December of that year as the scheduled time for writing such ACRs. Similar is the case in respect of the year 1991 and 1992 and these were sent after the last date as fixed and after the authorities had finalised his A.C.Rs.

Even if the applicant felt aggrieved that he is not given adequate staff and was not able to rise up to his full potential nothing stopped him from doing whatever work he could do within the constraint of resources. During the hearing it was submitted that he has generated a number of research papers, technical reports and proposals. In the O.A., it is mentioned that despite lack of resources, he had contributed significantly and has generated nine very good proposals single handedly which are of great interest to the ISRO activities. If so, he should have brought out this issue in his self assessment report in order to substantiate his claim. He has chosen not to submit any self assessment report and subsequently makes a grievance that his achievements were not brought to the Screening Committee’s notice etc.

The applicant has relied on the decision of the Supreme Court in the case of P.K. Chinnaswamy v. Government of Tamil Nadu, (supra) and states that he should have been given posting and work commensurate with his status. In the case relied upon, the applicant was a Regional Transport Officer and his juniors were allowed to work as Joint Transport Commissioner and the applicant was overlooked. He had approached the Court and the matter had to be adjourned on a number of occasions on the question that the orders were going to be executed to give him appropriate posting and when nothing was done Supreme Court directed the Government of Tamil Nadu to give appropriate posting to the petitioner therein. In this case the present applicant is having a grievance that he was not given facilities and perks which are due to his status. It is not his case that he was made to work under his juniors.

23. The fact that the applicant had not furnished the self assessment report therefore is an important factor which had led to the delay in writing the A.C.Rs. There are, of course, instructions that if the self assessment report is not received within a reasonable time, the authorities can call for a duplicate set and give the remarks without such report. However, apparently as the C.Rs were in the custody of the applicant, this was lost sight of and the respondents did not take prompt action in writing the ACRs.

The department could not write A.C.Rs as the applicant has not produced his self assessment report which was required as per the instructions. For the year 1990 and 1991 as the C.Rs of 1990 were written by the Director of Institute and countersigned by the Chairman, ISRO and in April, 1991 similarly the ACRs for 1991 was written by Director of Centre on 20.1.92 and countersigned by Professor U.R. Rao, on 24.1.92. We may mention that while the applicant has stated that the department wrote his C.Rs in “one go” and very belatedly for the year 1986, 1987, 1988 and 1989, he submits that there was undue haste in writing the ACR for 1991 and 1992. For these two years we do not see any undue haste. As per the instructions they were to be completed within a certain time-frame. There is, of course, some lapse on the part of the department in not writing ACRs from 1986 to 1989 in time without waiting for the self appraisal, as the instructions provide that they can get a duplicate set of ACRs and give remarks. In practice the question of an officer not writing his self assessment report will seldom arise as the officer will be keen to highlight his achievements for the concerned year when he is aspiring for advancement in his career and will return the ACR with his self assessment report in time. As the applicant has not done so, the department might have lost sight of the fact that his A.C.Rs were not recorded. While there is some deviation from the guidelines in this regard, we hold that the omission of writing A.C.Rs in time is not on account of any ulterior motive or mala fide intent.

The applicant has relied on the decision of the Supreme Court in the case of Madan Mohan Chowdhary, referred to supra. We may refer to Head Note A & Head Note B which is as under:-

“A. Service Law – Compulsory Retirement – Judicial review – Grounds – No material on record to reasonably form an opinion that compulsory retirement was in public interest – Appellant, a judicial officer, whose performance and integrity was otherwise reported not bad, compulsorily retired on the basis of a single act of granting anticipatory bail in a criminal case under S. 307, IPC-No ulterior motive found in appellant’s order though High Court (on judicial side) strongly ciritised it – Appellant’s compulsory retirement on this count, held, not warranted and therefore set aside – Bihar Service Code, R. 74 -Administrative Law – Judicial Review – Grounds – Reasonableness – No material on record.

“B. Service Law – Compulsory retirement – Material to be taken into consideration – Uncommunicated adverse remarks – Decision based thereon – Compulsory retirement, on the facts of this case, held, vitiated – Adverse remarks in appellant’s CRs for the years 1991-92, 1992-93 and 1993-94 communicated to him on 29.11.1996 whereas Standing Committee of High Court had already taken decision on 21.11.1996 to place appellant’s case before Full Court for his compulsory retirement – On 30.11.1996, Full Court approving decision of the Standing Committee and recommending to the Governor, appellant’s compulsory retirement – On facts, found that the adverse remarks for all the three years were recorded in one go – Held, the adverse remarks were not made in ‘normal course’ as envisaged in Baikuntha Nath Das case (1992) 2 SC 299) and therefore could not be taken into consideration – Except these three reports, there was no other valid material to arrive at a conclusion that appellant had outlived his utility and had become a dead wood – Compulsory retirement therefore, declared invalid – Confidential Reports – Adverse Remarks – Uncommunicated remarks – When cannot be taken into consideration – Constitution of India, Article 235 – Compulsory retirement of judicial officer”.

In that case, the Supreme Court held that the adverse remarks for some period were given in ‘one go’ and that the Officer’s earlier records were very good and that there was no other valid material to arrive at a conclusion and the petitioner therein has become dead wood. In the present case, the delay in writing the ACRs and the need to write in ‘one go’ arose essentially on account of the failure of the applicant to submit his self assessment report and the need to write them arose when his case for promotion fell due.

It is not the case here that applicant’s records earlier were excellent and that the only C.Rs. which are written in ‘one go’ had come in his way. In our view the decision in the case of Madan Mohan Chowdhary does not assist the present applicant. Similarly the to supra. Head Note A of this case reads as under:-

“A. Constitution of India – Articles 14, 226 and 311 – Premature Retirement – Court competent to go behind the order if order is not made bonafide – To prevent court from going behind the order it should first be established that the authority bonafide formed the opinion,”

The facts in the present case are clearly different.

24. We therefore hold that in the facts and circumstances of the case, the delay in writing the ACRs would not automatically result in the situation that the adverse entries against the applicant should be totally ignored.

25. As regards the contents of the A.C.Rs., the applicant has complained that the Reporting Officer had given normal grading for most of the qualities for the years 1986, 1987, 1988 and 1989. When he has not given any self assessment report and has also not contributed any work stating that he has not been given facilities he cannot expect that he should be given any rating above that of normal. In the absence of any contribution, even a normal rating can be regarded as generous. His grievance that some of the columns have been left blank also does not bear scrutiny. For example for the years 1986, 1987, 1988 and 1989 columns have been generally filled up. For 1990 the A.C.R. was written by Director Shri P.P. Kale. He has no-doubt left most of the columns blank but he has observed that the officer has not yet reported any work. When the applicant has not worked, for whatever reason, he could .not be assessed on most of the columns pertaining to professional ability, intellect, managerial capacity or personal qualities. The same is the position in respect of 1991 A.C.R. In the circumstances of the case, the fact that the Director of the Institute has left the columns blank for the years 1990 and 1991 would not vitiate the A.C.R.

The applicant also has argued that the Reviewing Officer has adjudged him fit for promotion to the higher grade in the normal course for a few years. According to him this could not have been modified in any manner by the higher authorities and he has relied on some instructions of the Director General P. & T. in this regard. While the Deputy Director is the Reviewing Officer, the Director is the countersigning authority and as per the revised instructions, from the year 1986, the Chairman ISRO also has a role to play in this regard. We do not agree that the higher officer should blindly accept whatever is given by the Reporting and the Reviewing Officer or that they are precluded from expressing any legitimate views which they can have in respect of the officials concerned. This position will also apply in respect of the gradings given.

26. The applicant also submits that he had dome commendable work in ISRO and relies in this connection on a certificate given by Shri Pramod Kumar who certified that he had known the applicant for more than fifteen years and that he is working as Scientist/Engineer and that he has made excellent contributions. According to the applicant this would show that he has been doing commendable work in ISRO. However, this certificate is more in the nature of a testimonial given to a person who has solicited the same. Shri Pramod Kumar who is the Reporting Officer for the applicant had noted in the ACR of 1986 as follows:-

“No report.

Dr. Khola is working on making a proposal – Propogation Experiments Programme at 20/30 GHZ. He has studied the subject of Propogation in depth and is therefore keen to work in this area.”

For the next year 1987, Mr. Pramod Kumar as Reporting Officer in the ACR writes:-

“Self report not submitted. Dr. R.K. Khola-

He takes interest in propagation studies. He has made a proposal for propagation studies which is not yet accepted as a programme. Some other studies were also discussed and they were not completed such as inter satellite link.”

For the year 1988 Shri Pramod Kumar observes:

“Self assessment report not submitted.

Dr. Khola has indicated interest in propagation studies but no active programme has been taken up.”

For the year 1989 Shri Pramod Kumar’s remarks are:

“Self report not submitted.

Dr. Khola told that he would like to have facilities and manpower at par with Division heads. He has not been able to prepare any activity and did not submit any study”.

From the above remarks it would be clear that as per the reporting officer’s assessment while applicant has made certain proposals he had not followed them up nor any active programme was taken up and finally he has not been able to prepare any activity and did not submit any study. In the light of this, the certificate dated August 4, 1991 from Shri Pramod Kumar addressed to “whomsoever it may concern” and which is in the nature of testimonial for a person seeking a job elsewhere loses its importance. The same gentleman in August, 1990 had given his candid opinion in the ACR form of the applicant for that period. It is also seen that the applicant had not done any substantial work. Keeping in view his seniority it is expected that he would have been loyal to the organization whatever may be his grievance with regard to the individuals. His failure to do any substantial work militates against such principle.

It is true that he has also brought out that even in the absence of the self assessment report the authorities were required to write the A.C.Rs as per the relevant instructions. These instructions of course provided that where the self assessment is not received, the Reporting Officer can get another set of C.R. forms and fill up his comments. This has not been done in the present case. However, even if such a course of action had been followed, the Reporting Officer etc. would have only referred to the fact that he has not done any work even if his A.C.Rs had not been written belatedly.

27. The applicant also says that he was given ‘C’ grading for 1990 and 1991 which means that the officer is not worth retaining the present grade. There should have been reasons given for such gradings and this is not done. Mr. U.R. Rao the Chairman, ISRO for the year 1990 in ACR has observed as follows:-

“Dr. Khola has not carried out any work during the last few years. He is constantly refusing to fill up his self assessment form”.

Since he has not carried out any work and refuses to accept any discipline there is no way of evaluating him on technical merits. Hoping that a change of assignments/Reporting would help, he was earlier shifted from O.P.N. Calla to Shri Pramod Kumar. There is no change in his attitude. He indulges only in mud-slinging. He is not able to get along with any body. As for his technical knowledge it is certainly well below what is expected of him.”

In the A.C.R. for the year 1991 Mr. U.R. Rao has observed:

“It is a great pity that the officer refuses to work and indulges only in discrimination. He has grievances against everybody in the Organisation both past and present totally unfounded, Technically he is outdated and has contributed nothing to the Organization of the last almost 10-12 years.

I agree with rating of ‘C* given by the Director, SAC.”

These general remarks of Mr. U.S. Rao have not been given in para 3.8 of the C.P. form which are given by the Reviewing Officer but the same is at para 5.

The Chairman ISRO has a role to play in the A.C.R. form as it is open to him to-give his comments including the Gradings with sufficient reasons and he does not have to blindly agree with whatever has been written by the Reporting Officer and the Reviewing Officer. In the present case, Dr. U.R. Rao has given detailed remarks to support his assessment that the applicant should be graded as ‘C’.

28. The applicant has submitted that when he was promoted in 1986 to SF Grade, it could not be said that he had not contributed to the organization in the last 10-12 years. We have noticed that the applicant has been having problems even earlier as seen from the 1975 D.P.C. proceedings and he was given promotion later than his juniors to SF Grade.

29. We therefore hold that what is written in the A.C.Rs is based on the factual assessment of the authorities and they cannot be regarded as perverse.

30. The next component to the challenge to the A.C.Rs is that remarks were given by the incompetent authorities. The applicant has strongly contended that Shri Kale was not the countersigning authority for 1986 as he was not the Director of the Centre and that he could not have made any comments as he is neither Reporting Authority nor a Reviewing Authority. He also says that Shri Rao has functioned as Reporting Officer for 1990 and 1991. We have gone through the ACR dossier for 1986. The Reviewing authority has graded the applicant as Good average man. Mr. Kale has observed that all through out the time he was reported to put all types of conditions in the support of requirements and lodging Court/CAT cases. Even if was ignore the remarks of Mr. Kale for that year, there is no substantial change in the ACR which is countersigned by Professor U.R. Rao. The previous Director Shri Bhavsar should have been the countersigning authority. The applicant has alleged that Shri Bhavsar is prejudiced against him as is evident from his letter dated 20th August, 1985 reproduced earlier.

The applicant also has contended that neither Shri Kale nor Shri U.R. Rao can give any comment on over and above what is written by the Reviewing Officer and has relied on some instructions of the Director General Posts & Telegraphs in this regard. The ISRO is a specialised organisation and its pattern of working is quite different from the other departments. It has a system of merit promotions which are not vacancy based. The applicant has stated that the Director of the Centre even though he is only the countersigning authority as per the Office Order dated December 23, 1985, has made his remarks and he is not authorised to give any comments. We do not agree with this. In an organization like ISRO, the assessment of the higher officer will be of equal if not more relevance and the Director cannot be precluded from giving his opinion.

For the years 1990 and 1991 Mr. Kale as Director has functioned as the Reporting Officer, Reviewing Officer and Countersigning authority. This of course is quite unusual.

The Group Director is the Reporting authority but when the applicant has not given any self assessment report leading to an inference that he has not worked at all for the relevant year, it does not make any difference as to who is the reporting authority etc. and there is no basis for minutely assessing the various attributes, as laid down in the G.R. form. His conduct in not working will be the crucial factor and this has been referred to by the Director who has based his assessment on that factor.

31. There was considerable discussion about the role of Professor U.R. Rao. The applicant had entirely relied on the office order dated 23rd December 1985 where the Chairman ISRO had no role to play. Subsequently a copy of the letter dated 2nd July, 1986 was shown to us by the respondents where the Chairman, ISRO has been assigned a definite role for countersigning the ACRs in respect of all Scientists and Engineers in SF Grade and above. The O.M. dated 30.3.89 gives effect to this change mentioned in letter dated 2.7.1986 and amends the C.R. form to provide a specific column for the comments of Chairman, ISRO. The applicant had taken objection to the production of this document arguing that they are xerox copies and no affidavit was filed and according to him, it clearly established the mala fides of Professor U.R. Rao because these were fabricated during the period when Professor U.R. Rao was Chairman, ISRO and that it is an after thought. The respondents had produced the document with all responsibility and that became necessary when the Tribunal inquired from the respondents as to the authority for the Chairman, ISRO to give his comments in the context of the Office Order dated 23.12.85. The Tribunal also noticed that in the C.R. form for 1989 there is a column for the Chairman, ISRO to give his views. The respondents have produced the same as authority and the presumption is that such official documents are genuine. The applicant has not given an iota of material in support of his allegation that they are fabricated documents at the behest of the Professor U.R. Rao, the Chairman, ISRO. The C.Rs. from the year 1986 to 1991 were supplied to the applicant and they clearly contain from 1989 onwards a column in page No. 9, para 5 regarding Remarks of Chairman, ISRO/Secretary DOS which reads as follows:-

“Remarks of Chairman ISRO/Secretary DOS (This column is meant for Chairman, ISRO/Secretary DOS) to make his remarks if any, in respect of Scientist/Engineer in SF Grade where he is not the Reporting/Reviewing/ Countersigning Officer)”.

This C.R. copies were made available to the applicant much before hearing. The applicant ought to have been aware of this position which has been indicated in the C.R. form itself from 1989 onwards. It is too much to believe that such a column has been printed only in the case of the C.R. form of the applicant and that they were fabricated for the reason that Shri U.R. Rao is prejudiced against the applicant and acted in a mala fide manner. On the other hand it substantiates the contents of the letter dated 2nd July, 1986 and the O.M. dated 30.3.89 which provides for insertion of this column to give effect to the decision taken in July, 1986. We, therefore, reject the contention of the applicant that these documents are fabricated or that they should be disregarded.

32. From the above, it is clear that Shri U.R. Rao as Chairman, ISRO was entirely competent to give his comments in respect of the applicant who is in SF Grade from 1986 onwards and that the fact that he has done so does not in any way make the C.R. irregular.

33. The applicant has alleged mala fides against Shri U.R. Rao and Shri P.P. Kale. Both these gentlemen were far senior to the applicant and they were not in competition with the applicant for any particular post. In fact the applicant was aspiring to be promoted as Scientist/Engineer SG Grade but Mr. Kale and Mr. Rao are occupying positions far above that level. The applicant has stated that he has filed a case in the Gujarat High Court challenging the appointment of Shri U.R. Rao as Chairman. Obviously, this has come to nothing as Shri U.R. Rao continued to hold the office. In the O.A. a copy of the telegram stated to have been sent by the applicant to the Prime Minister of India dated 22.7.88 is enclosed as Annexure A-24, which reads as under;-

“Looking to two failures of ASLV I request Professor U.R. Rao may be moved. Further research and development achievements of key positioned persons in ISRO be probed in the interest of the nation”.

The applicant wants us to believe that on the basis of such a telegram Shri U.R. Rao is prejudiced against him. This telegram holds not only Mr. U.R. Rao responsible for the failure of ASLV programme but also key persons in ISRO. In other words, the applicant seems to have complained against almost all the top people in ISRO. He has not laid any evidence for the charge of mala fides. Such a charge cannot be taken to be established on the basis of insinuations and vague suggestions. There is nothing to show that Shri Rao or Mr. Kale would have any reason to be prejudiced against the applicant. In fact, effective contribution from the members of an organisation will enhance the prestige of such organisation and will redound to the credit of the Head of that Organisation. We also note that the applicant had similar grievance against others also as he had alleged against, his superiors in TA/17/I986 and TA/152/1986 and also as per the copies of the various documents he has produced referred to earlier. The Tribunal in TA/17/86 and TA/152/86 also noticed this trait.

34. In the circumstances, we hold that the allegation of mala fides against Mr. U.R. Rao and Mr. P.P. Kale is totally without any substance and we emphatically reject such an allegation.

35. The applicant has challenged the rejection of his representation by order dated 10.8.1992. He submits that his representation against expunging all adverse remarks was disposed of by Professor U.R. Rao himself and he had acted as a Judge in his own case. The applicant has relied in this connection on the office order dated 25.4.1984 particularly para 1.5 thereof which says:

“That representation against adverse remarks should be considered by the Appellate Authority who shall normally be atleast one grade above the countersigning officer”.

In the present case, there is no authority higher than the Chairman, ISRO in the organisation. The order dated 25.4.1984 has been issued after considering the recommendations of the Committee and a decision was taken by the Chairman ISRO. While there is a Minister in the department for the purpose of accountability to the Parliament, the Chairman, ISRO is the Head of the Organisation. The question of the appellate authority being one grade above the countersigning officer would arise when the adverse remarks are given by a lower authority. In the present case, they have been given by the Chairman himself who is the highest authority in the organisation. As such, there is no officer above Chairman who could have considered the representation against the adverse remarks. We, therefore hold that the rejection of the representation by the Chairman has not vitiated the decision.

36. The applicant has contended that under the settled law the representation should be disposed of by a speaking order. We do not agree that the order rejecting the representation should disclose reasons. We may in this connection refer to the decision of the Supreme Court in the case of Union of India v. E.G. Nambudiri, AIR 1991 SC 1216. We may extract part of para 9 of the judgment which is given below:-

“9. There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the court. The superior authority while considering the representation of a Government servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Government servant. In the instant case adverse remarks as contained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent’s representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation contained in Item No. 5 “that nothing adverse has come to notice regarding your integrity” is not adverse to the respondent’s work and conduct. These remarks are neutral in nature, and they do not adversely comment upon the respondent’s work, conduct or character though they are not commendatory in nature. As regards the remarks at Serial No. 6, they are self-explanatory. which show that in spite of oral and written warnings the respondent did not improve. If the superior authority was not satisfied with the explanation of the respondent as contained in his representation, what reasons could be stated, except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detail judgment or order giving details of the warnings or the material on which he formed opinion”.

It is relevant to state that the applicant has not brought out that in his representation he has indicated the work done by him and that he had brought the same to the notice of the authorities.

In the present case, the adverse remarks were self explanatory and had been confirmed by rejecting the representation.

37. We therefore, reject the contention that the order dated 10.8.92 suffers from illegality and should be set aside.

38. In the light of the foregoing discussion, we hold that the ACRs for the relevant years have been properly recorded and the Gradings have been correctly given. We also reject the challenge to the order dated 10.8.92 rejecting representation of the applicant against the adverse remarks.

39. The next issue is whether the action of the respondents in denying the applicant promotion to SG Grade is in order. He has relied on some Court decisions in this regard.

40. The applicant has referred to the delay in communicating the adverse remarks and that he was “screened out” by the Screening Committee for the SG Grade in the year 1990 when the meeting was held on 27.9.1990 before the adverse remarks were communicated to him. He has relied on some court decision. The general principle is that uncommunicated adverse remarks should be ignored and this is particularly so when the Government servant is sought to be victimised. In the present case, the applicant belongs to a highly specialised organisation namely the Space Application Centre. The procedure for promotion and advancement of the Scientist/Engineer is quite different in ISRO as compared to other Government departments. Promotion is given not against individual vacancies but to deserving persons after a lapse of some period in the lower level and the post itself gets upgraded. This aspect has been recognised by the Tribunal while disposing of TA/17/86 and 152/86 in para 3 of its judgment dated 23.10.89. In the present case, the applicant has not given his self assessment form leading to a legitimate inference that he has not made any contribution during the relevant period. The promotion to the higher level is given only when significant merit is established and in the absence of any work an Officer cannot hope to get an advancement. This is not a case of promotion based on seniority-cum-fitness as merit has an overriding importance. In TA 17 of 1986 the Tribunal has observed that:

“We are fully satisfied that the petitioner has to stand on his own legs regarding his merits and his performance”.

As the merit can be assessed only when he has done some work and when he has apparently not put in any worthwhile work and has chosen not to bring out what he regards as his significant contribution, he cannot make a grievance that there was not taken into account.

The ACRs for the years 1986, 1987, 1988 basically bring out a number of aspects. The first is the self assessment report was not submitted which is admittedly true. It also says that he was not produced any work. There is also a reference to his lack of initiative and rather slow in work out-put and unclear in his perspective. Apart from the other adverse remarks, the fact that he has not given any self assessment report and has not brought out any achievement relevant to the goals of the organisation is very important material available before the Screening Committee. As has been discussed earlier, it is well settled that promotion in an organisation like ISRO has to be earned through means of hard work and significant contribution. In the absence of any worthwhile contribution the applicant was “screened out”. We also note that a large number of others were also “screened out”. As has been explained earlier, the applicant has been nursing a grievance all along. From the materials submitted by him we find that he was given an opportunity at various levels including the Minister Shri Sivraj Patil. He has been nursing grievances from as early as 1975 and these were also looked into and his case was discussed by Professor Yash Pal with Chairman, ISRO who had also talked to the applicant. This had been going on subsequently also as is evident from the various materials made available. The Chairman, ISRO at one time had shifted him from serving under Mr. Calla to some other officer thinking that it would help him. In other words, he had been receiving counselling from the higher officers from time to time but according to the respondents he continued to behave in the same manner as before. He did not improve his conduct or performance. In the present case, the applicant was accommodated to the extent possible. An opportunity was given to him to improve his performance, but according to the respondents without any effect.

If the adverse remarks were not communicated in time the Screening Committee could have deferred consideration of his case till they were communicated and his representation if any against such remarks is disposed of. This is academic in the present case as we have held that the adverse remarks were not perverse and the order dated 10.8.92 rejecting his representation against such adverse remarks does not suffer from any illegality.

41. In the totality of the circumstances, we hold that so far as this case is concerned the failure to communicate adverse remarks does not vitiate the selection process and does not warrant interference by the Court in the decision of the respondents.

42. The applicant has alleged that he ought to have been given a personal interview under the Flexible Complimenting Scheme and failure to do so shall vitiate the proceedings. The relevant instructions for promotion are contained in the O.M. dated 22.2.1988. Para 2.2 refers to screening by a duly appointed committee and all those who qualify in the screening procedure will be interviewed by a duly appointed selection committee. Para 3 refers to the procedure of screening which says that it should be ensured that the candidates presented to the Selection Committee for assessment are those who prima facie appear to possess necessary minimum merit demonstrated through achievements to their credit in their area of work. As per the principles of peer review, the screening process also aims to ensure that persons recommended have more or less the same level of technical proficiency and competence in respect of the scientist/engineer to discharge their responsibility in the higher grade. Para 3.1 (b) says that “a committee shall categories those persons as those screened in” i.e. those who got considered by the Selection Committee and those “screened out” i.e. those not recommended by them for being considered further by the selection committee. In other words, those who are “screened in” have to appear before the Selection Committee and those who have been “screened out” will not be sent before the Selection Committee for interview. In the present case, the applicant was “screened out” by the Screening Committee and the question of his interview would not arise as he was not to be presented before the Selection Committee. As such, the fact that he was not given personal interview does not go against the relevant instructions. Even though one of the reliefs sought for in the O. A. is a challenge to the instructions contained in the 22.2.88 order, this was not pressed during the hearing. On the other hand the applicant has contended that the procedure actually followed is not in consonance with the O.M. dated 22.2.88.

43. We therefore hold that in terms of the relevant instructions dated 22.2.88 the fact that applicant was not interviewed would not by itself vitiated the selection process. We also note that a large number of others besides the applicant were also screened out by the Screening Committee.

44. The applicant has alleged that the Screening Committee was not constituted in accordance with the Office Order dated 22.2.88 as these orders provided only for three Members whereas the Screening Committee consisted of two additional Members. The O.M. dated 22.2.88 has been enclosed as Annexure-I which says that for promotion from SF Grade to SG Grade, Screening Committee will consist of three members of the Review Committee. In the present case, the applicant was considered by a five Members committee consisting of:

1.

Shri N. Pant

Dy. Controller-ISRO

Chairman

2.

Dr. S.C. Gupta

Director VSSC-

Member

3.

Prof. B.L. Deekshatulu

Director NRSA-

Member

4.

Dr. A.E. Muthunayagam

Director LPSC

Member

5.

Dr. K. Kasturirangan

Director ISAC

Member

The Respondents have relied on office order dated July 31,1990 to substantiate their stand that the Screening Committee can consist of five Members. The applicant has objected to this office order on the ground that these were not brought out by way of an affidavit. He has also staled that this Office Order is in violation of the rules for promotion and Screening Rules dated 22.2.1988 and that the two additional members of the Screening Committee Shri N. Pant and Shri Kasturirangan was prejudiced against the applicant. We do not agree with the contention that the order dated 31.7.90 regarding reconstitution of the Screening Committee for promotion from the Grade SF and SG should be disregarded as not being genuine. This has been produced by the official respondents and the presumption in such a case is that the said order is a genuine order used in the normal course. Besides this order has not been issued solely to consider the case of the applicant but the Screening Committee which was set on that basis had considered over 127 persons and it made a specific reference to the Order dated 31st July, 1990. We therefore reject the challenge to the authenticity of this circular.

45. The applicant has also contended that this order is in violation of the rules of 22.2.1988. He seeks to convey an impression that the order dated July 31, 1990 is an executive instruction which tries to override the statutory instructions. Factually such a contention is baseless. The so called rules referred to by him are the instructions contained in the O.M. dated 22.2.1988 which deals with the subject of career opportunities of Scientist/Engineers procedure for selection under the periodical reviews. The decision of the Screening Committee is contained in Annexure 1 to this O.M. It is clearly in the nature of executive instructions and it is open to the department to modify and amend the same from time to time. As such, the fact that Schedule at Annexure-1 was modified to enlarge the Screening Committee from three to five is not in any way illegal. In any case a large committee will be less subjective in its approach. The applicant has also alleged that Shri N. Pant and Shri Kasturirangan were prejudiced against him. Shri N. Pant was the Deputy Chairman of ISRO and Shri Kasturirangan was Director of ISAC. They are very senior officers and no material has been given to substantiate the charge that they are prejudiced against the applicant. In fact this committee has been constituted to consider a large number of others and not just the applicant. The applicant has been alleging prejudice against most senior officers of the organization and such a charge lacks any substance as no evidence has been furnished to show that any individual person had acted in any mala fide manner. We therefore reject the challenge to the Office Order dated 31st July, 1990 reconstituting the Screening Committee.

46. There is also a contention that the Screening Committee proceedings were not approved by the Appointment Committee of the Cabinet (ACC) which is the competent authority in the case of SF Grade Officer. The question of approaching the ACC would arise only if promotion is to be given as the ACC is competent to make the appointment. This will apply only to those who are “screened in” by the Screening Committee and who are found to be eligible by the Selection Committee and the Selection Committee recommends them for promotion and such promotion is to be given by Appointment Committee of the Cabinet. In the present case, the applicant has been “screened but” and the question of taking his case before the ACC does not arise.

47. The applicant has also made a grievance that the Screening Committee did not have appropriate material before it for making an assessment. He has particularly contended that ACRs were not valid in law and they were not actually produced before the Screening Committee. The Screening Committee had met on 29.9.90 for the purpose of considering promotion of SF to SG Grade as on 1.1.1991. It noted in para 2.2 of the proceedings that it followed the general guidelines and procedure as laid down in O.M. dated 22.8.88 and 19.9.88. There is no reason to believe that the applicant’s C.Rs were not placed before the Screening Committee. As regards their validity we have already held that in the facts and circumstances of the case – the ACRs of the applicant cannot be disregarded. The applicant has stated that the recommendations of the Divisional Head were not placed before the Screening Committee. We are not aware as to how he has come to this conclusion. The applicant’s case was examined and placed before the Screening Committee. When the applicant has not given his self assessment nor has he brought out any significant work done by him during the period, he cannot make a grievance in this regard. The Screening Committee had proceeded with whatever materials were available before it and had given its findings. We also note that among the 127 persons only 55 were screened in and 61 were screened out and in the case of 9 they were to be re-examined after six months. One was a merit case and one NRSA case was to be decided by the Chairman. The proceedings of the Screening Committee were approved by the Chairman, ISRO. It is therefore not the case that only the applicant had been singled out for discriminatory treatment but a majority of the persons considered were not “screened in”. There is no reason to believe that the recommendations of the Screening Committee were biased or prejudiced. It consisted of very senior officers of the organisation and was assisted by Member (Personnel) and in the absence of any materials to the contrary, it has to be taken that the deliberations were objective and recommendations made on reasonable consideration. The applicant has a right for consideration by the Screening Committee in terms of the Department’s instructions and his case received such consideration. He has no automatic right for promotion when his work performance according to the assessment of an expert body would not warrant any such promotion.

48. The applicant has also alleged that Mr. U.K. Rao and Mr. P.P. Kale do not possess any technical qualification in the fields of Electronics and Research and Development work. The applicant’s discipline has to be subserved to the larger goals of the organisation headed by Mr. Kale in SAC Ahmedabad and Mr. U.R. Rao in respect of ISRO as a whole. They are the senior officers and Head of the Centre and the entire organisation. Mr. P.P. Kale and Mr. U.R. Rao has to assess the work of the applicant in the context of the requirements of the Organisation as a whole. It is not for the applicant to decide as to who should judge his performance. We therefore hold that the procedure followed for promotion and the screening out of the applicant in the year 1990 for SG Grade does not suffer from any illegality or irregularity.

49. We therefore hold that the selection process carried out by the respondents for considering the applicant for promotion from SF to SG Grade does not suffer from any illegality.

50. In the light of the foregoing discussion we hold that the applicant is not entitled to the reliefs sought for and we dismiss the O.A. without any orders as to costs.