High Court of KeralaDivision BenchPetition allowed; Annexure A10 and Ext.P4 set a...

Kumari Thara Bai Thankachi v Union of India and Others

Case / Petition Number:OP(CAT) No. 70 of 2016 (Z)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Surendra Mohan
  • P. V. Asha
Judgment Date
2016-02-23
Court Decision / Holding
The Original Petition is allowed. Annexure A10 and Ext.P4 are set aside. The second respondent is directed to consider Annexure A7 in accordance with law, afresh after affording an opportunity of hearing to the petitioner, in accordance with Annexure A9, and to issue orders expeditiously, within four months from receipt of a copy of this judgment.
Final Disposition
Petition allowed; Annexure A10 and Ext.P4 set aside; the 2nd respondent to consider Annexure A7 after hearing within four months as per CAT’s directive and in compliance with law.

Parties to the Case

Appellants / Petitioners

  • Kumari Thara Bai Thankachi

Respondents

  • Union of India represented by Secretary, Ministry of Communications and Information Technology, Department of Information Technology, National Informatics Centre, Lodi Road, New Delhi-110003
  • Director General, Ministry of Communications and Information Technology, Department of Information Technology, National Informatics Centre, Lodi Road, New Delhi-110003
  • Deputy Director (Personal), Ministry of Communications and Information Technology, Department of Information Technology, National Informatics Centre, Lodi Road, New Delhi-110003

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. T. B. Hood
  • • Smt. M. Isha
  • • Sri. Amal Kasha

Counsels for Respondents

  • • Sri. Haridas P. Nair, CGC
  • • Sri. N. Nagareesh, Assistant Solicitor General

Case Synopsis & Summary

Kumari Thara Bai Thankachi, a National Informatics Centre (NIC) scientist, challenges Ext.P4, the Central Administrative Tribunal (CAT) order dismissing OA 329/2012, in a Kerala High Court OP(CAT) No. 70 of 2016. She contends that the respondents failed to communicate adverse entries in her confidential reports, which adversely affected her career progression. She had been promoted to Scientist C in 1998 but to Scientist D only in 2009; she asserts the delay was caused by undisclosed adverse remarks and by the reviewing officer’s perception changing the reporting officer’s favorable remarks. The non-communication of adverse entries, and the lack of opportunity to respond or be heard, purportedly violated the Supreme Court’s dictum in Dev Dutt v. Union of India (2008) SCC 725. Prior OA proceedings (OA 620/2008 and OA 180/2011) had directed communication of adverse entries below benchmark and a fresh consideration after opportunity to represent, following directions from the apex court in Union of India v. Manjurani Routray. Annexure A6–A9 records show the adverse remarks were communicated, Annexure A7 was filed, and Annexure A9 directed the 2nd respondent to decide within three months. The CAT’s Ext.P4, Annexure A10, was held unsustainable; the High Court, allowing the petition, directed the 2nd respondent to reconsider Annexure A7 afresh after affording hearing, within four months."

Legal Doctrines & Maxims

  • Dev Dutt v. Union of India and others, 2008 (8) SCC 725 (principle of natural justice, due process)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the CAT’s Ext.P4 order dismissing OA 329/2012 violates natural justice because adverse entries in her confidential reports were not communicated as required, and because the reviewing officer allegedly downgraded favourable remarks. She relies on the Supreme Court’s Dev Dutt dictum to contend that due process was lacking, and asserts that there was no opportunity of hearing before the final decision. The chain of OA orders (OA 620/2008 directing communication of adverse entries and opportunity to represent; OA 180/2011 directing the 2nd respondent to consider Annexure A7 within three months after receiving Annexure A9) shows a pattern of ensuring due process, which was not followed when Annexure A10 was issued. She requests setting aside Annexure A10 and Ext.P4 and for proper consideration of Annexure A7 with an opportunity to be heard.

Contentions of Respondents

Respondents contend that the CAT had examined the representation and found no grounds to interfere with it, as per Annexure A9’s directive, and that Annexure A10 was issued by a competent authority. They emphasize that Annexure A9 directed the 2nd respondent to consider Annexure A7 and decide within three months; the CAT’s direction was not circumvented. They argue that the process was otherwise compliant and that the petition does not establish error in the CAT’s findings.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Dev Dutt v. Union of India and others2008 (8) SCC 725PositiveCited to underscore the requirement of communication of adverse entries and due process; failure to communicate is treated as a violation of the dictum in Dev Dutt.
Union of India & Ors v. Manjurani Routray & Anr.SLP 7200 of 2009PositiveCited in context of directives/orders following the apex court Decision regarding process of selection and time-bound review; used to justify directions for consideration within a timeframe.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937 OP (CAT).No. 70 of 2016 (Z) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 329/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED PETITIONER(S): -------------------------KUMARI THARA BAI THANKACHI AGED 55 YEARS W/O.K.KRISHNA KUMAR, DISTRICT INFORMATICS OFFICER NATIONAL INFORMATICS CENTRE, DISTRICT CENTRE THIRUVANANTHAPURAM, KERALA-695043 RESIDING AT TC 11/2494, KRISHNA VIHAR, NALANCHIRA THIRUVANANTHAPURAM-695015. BY ADVS.SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA RESPONDENT(S): ---------------------------- 1. UNION OF INDIA REPRESENTED BY SECRETARY MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY DEPARTMENT OF INFORMATION TECHNOLOGY NATIONAL INFORMATICS CENTRE, LODHI ROAD NEW DELHI-110003. 2. THE DIRECTOR GENERAL MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY DEPARTMENT OF INFORMATION TECHNOLOGY NATIONAL INFORMATICS CENTRE, LODHI ROAD NEW DELHI-110003. 3. THE DEPUTY DIRECTOR (PERSONAL) MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY DEPARTMENT OF INFORMATION TECHNOLOGY NATIONAL INFORMATICS CENTRE, LODHI ROAD NEW DELHI-110003. R1 -R 3 BY ADV. SRI.HARIDAS P.NAIR, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 70 of 2016 (Z) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1 : TRUE COPY OF THE OA 329/12 ALONG WITH ANNEXURES. P2 : TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 329/12 ON THE FILES OF THE HON'BLE CAT, ERNAKULAM. P3 : TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN OA 329/12 ON THE FILES OF THE HON'BLE CAT, ERNAKULAM. P4 : TRUE COPY OF THE ORDER DT.30-9-15 IN OA 329/12 ON THE FILES OF THE CAT, ERNAKULAM. RESPONDENT(S)' EXHIBITS NIL -------------------------- JJ /TRUE COPY/ P.S.TO JUDGE K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------O.P(CAT) NO.70 OF 2016 ---------------------------------Dated this the 23[rd ] February, 2016. ## JUDGMENT Surendra Mohan, J. The applicant in O.A.329/2012 challenges Ext.P4 order of the Central Administrative Tribunal ('CAT' for short) dismissing her original application. The petitioner is working as a Scientist D under the respondents in the National Informatics Centre (NIC). She had filed the O.A challenging the action of the respondents in not communicating to her the adverse remarks in her confidential reports. She was granted promotion to the post of Scientist C in the year 1998. However, she was promoted to the post of Scientist D only in the year 2009. According to the petitioner she ought to have been promoted to the said post in the year 2002. But she was not so promoted for the reason that there were adverse OP(CAT)70/2016 2 entries in her confidential report. She had also been denied promotion finding her to be unsuitable in an interview that was conducted during the previous years. She attributes the denial of promotion to her to the adverse entries in her confidential reports. 2. According to the petitioner, though her reporting officer had entered favourable remarks about her the reviewing officer had altered such remarks to her disadvantage. The adverse entries had not been communicated to her, in gross violation of the dictum of the Supreme Court in Dev Dutt v. Union of India and others [2008 (8)SCC 725]. 3. She had earlier approached the CAT by filing O.A.620/2008. The said O.A was disposed of by Annexure A5 order dated 7.4.2010 finding that, the petitioner's case would have to abide by the decision of the Apex Court where the issue regarding the process of selection that was adopted for her promotion was pending consideration. In view of the OP(CAT)70/2016 3 ## above, the O.A was disposed of with the following direction:- “i) The overall grading if below Benchmark in her ACRs, along with adverse remarks, if any, shall be communicated to her and she will be given an opportunity to represent against the same, thereafter the respondents shall take a decision on her representation and communicate her the decision. ii) direct the respondents to review the case of the applicant within three months from the date of the judgment of the Apex Court in Union of India & Ors v. Manjurani Routray & Anr. (SLP 7200 of 2009)” 4. Pursuant to the above direction, as per Annexure A6, the adverse entries in her confidential reports were communicated to the petitioner. The petitioner thereupon submitted Annexure A7 representation praying for expunging the adverse remarks made against her. However, since there was delay in considering Annexure A7 the petitioner approached the CAT again by filing O.A.180/2011. As per Annexure A9 the said O.A was disposed of with the following direction:- “In view of the above facts and circumstances of the OP(CAT)70/2016 4 case, I direct that the 2[nd] respondent, namely, the Director General, Ministry of Communications and Information Technology, Department of Information Technology, National Informatics Centre, New Delhi, shall consider the applicant's Annexure A7 representation dated 23.6.2010 and communicate its decision to her within a period of three months from the date of receipt of a copy of this order. A copy of this order shall also be communicated by the Registry directly to the 2[nd] respondent for the compliance of the order. The OA is accordingly disposed. There shall be no order as to costs.” 5. Accordingly, Annexure A7 was considered and by Anexure A10 order the request of the petitioner has been rejected. The aggrieved petitioner challenged Annexure A10 in O.A.329/2012. The said O.A has been dismissed by Ext.P4. 6. The CAT has found that the representation submitted by the petitioner has been considered and that there were no grounds to interfere with the same. The petitioner challenges the said order, contending that Annexure A10 has been passed without adverting to or considering the various OP(CAT)70/2016 5 contentions that were specifically raised by her in Annexure A7. It is also contended that though she had requested for an opportunity of being heard before orders were passed, no such opportunity was afforded to her. A further contention of the petitioner is that though the second respondent herein had been directed to consider and pass orders in the matter, Annexure A10 has been issued by a subordinate authority. Therefore, the direction of the CAT has been valid. 7. We have heard Adv.T.B.Hood who appears for the petitioner as well as Adv.Haridas P.Nair for the respondents. We notice that, the petitioner had set out elaborate contentions in Annexure A7 and had also requested for an opportunity of personal hearing before a final decision was taken in the matter. Admittedly no personal hearing has been afforded to her. We notice that the non-communication of the adverse entries in her confidential report has caused substantial prejudice to her career prospects. Therefore, it was only appropriate that she was heard before a final OP(CAT)70/2016 6 decision was taken in the matter. We further notice that as per Annexure A9 order of the CAT referred to above, the direction to consider and dispose of Annexure A7 had been issued specifically to the second respondent who has been named therein as the authority to consider the same. Therefore, the action of the said authority in having the matter considered by the Deputy Director cannot be countenanced. On the basis of the direction contained in Annexure A9 it is only appropriate that the second respondent considers the issues and takes a decision in the matter. In the above view of the matter we find that Annexure A10 is unsustainable and liable to be set aside. For the foregoing reasons this original petition is allowed. Annexure A10 and Ext.P4 are set aside. The second respondent is directed to consider Annexure A7 in accordance with law, afresh after affording an opportunity of being heard to the petitioner also, in accordance with the direction contained in Annexure A9 order. Orders as indicated above OP(CAT)70/2016 7 shall be issued as expeditiously as possible and at any rate within a period of four months of the date of receipt of a copy of this judgment. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ OP(CAT)70/2016 8