Allowed

Gopinathan Nair C.M v. the Commissioner

Kerala HC15 Jan 2020OP (CAT)/131/2017

Case brief

AI extract

What is this about?

High Court quashed a non-speaking appellate order and directed the Deputy Commissioner to revisit specific Annual Confidential Report assessments. The Court treated gradings for 2002-03 and 2004-05 as 'good' and ordered reconsideration for other years to determine if the petitioner meets the promotion benchmark.

What did the court decide?

Petitioner's Original Petition allowed; Annexure A1 set aside; Assessments for 2002-03 and 2004-05 treated as 'good'; Deputy Commissioner directed to reconsider representations for other years; Review

Gopinathan Nair C.M Vs the Commissioner — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941 OP (CAT).No.131 OF 2017(Z)

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AGAINST THE ORDER IN O.A.858/2014 DATED 27.02.2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER/S:

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GOPINATHAN NAIR C.M., AGED 56 YEARS, S/O.C.P.KUNHAMBU NAIR, TRAINED GRADUATE TEACHER, KENDRIYA VIDYALAYA, KANHANGAD, KASARAGOD DISTRICT; R/AT “JYOTHIS”, CHANDERA P.O. MANIYAT, THRIKKARUPUR, KASARAGOD DISTRICT - 671 310

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BY ADVS. SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN

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RESPONDENT/S:

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1 THE COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, 18, INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG, NEW DELHI - 110 016.

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2 THE DEPUTY COMMISSIONER, KENDRIYA VINDRIYA VIDYALAYA SANATHAN, REGIONAL OFFICE, ERNAKULAM, KOCHI - 682 020.

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3 THE DEPUTY COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, REGIONAL OFFICE, MEG CENTER, BANGALORE - 560 042.

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R1-R3 BY STANDING COUNSEL SRI.K.MAYANKUTTY MATHER.

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(CAT).131 of 2017

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K.Vinod Chandran & V.G.Arun, JJ.

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O.P(CAT)No.131 of 2017

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Dated this the 15^th day of January, 2020

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JUDGMENT

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K. Vinod Chandran,J:

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The petitioner, a Trained Graduate Teacher (TGT)

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of the Kendriya Vidyalaya Sangathan (KVS), challenges the order of the Tribunal which rejected the Original Application thus setting at naught his prayer for promotion to the post of Post Graduate Teacher [PGT].

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2. The learned Counsel appearing for the

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petitioner contended that the Tribunal had misdirected itself insofar as having looked only at one aspect of the various factors relevant for assessment of a teacher for the purpose of grading in the Annual Confidential Report [ACR]. It is argued that the consideration has been made by the Tribunal only looking at the marks obtained by the students in the written test, which is not the only criteria for qualifying in a particular year. The overall percentage of the students is much more than that looked at by the Tribunal and there could not have been a grading of 'average' for the relevant years, being the years between 2002-03 to 2005-06; both of which are included. The

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petitioner has been graded 'outstanding' in the subsequent years and he ought to have been promoted in the year 2005-06 itself. He had been excluded from promotion in the years 2006-07, 2007-08 and 2008-09, in which he participated in the selection made by the Departmental Promotion Committee [DPC], for reason only of the adverse entries which were not communicated.

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3. On cautioning the learned Counsel about the confined review jurisdiction of this Court under Articles 226 and 227 of the Constitution against the orders of the administrative authority, in this case the assessments made

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by the reporting and reviewing officers; the learned Counsel also raised allegations of procedural irregularities. It is contended that Annexure A1 order followed the order of the Assistant Commissioner without any application of mind. It is also contended that the Assistant Commissioner is equivalent in rank to the Education Officer who conducted the review in the first five years, as is seen from Annexures A5 to A8. It is pointed out that as per an Office Memorandum dated 16.09.2011 there was a re-designation in the KVS by which the Education Officers were re-designated as Assistant

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Commissioners and Assistant Commissioners as Deputy

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commissioners. It is alleged that there has been no consideration as has been directed by the Hon'ble Supreme Court in Dev Dutt v. Union of India [ (2008) 8 SCC 725 ].

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4. The learned Standing Counsel for the KVS would seek to sustain the order of the reporting officer, reviewing authority, appellate authority as also the Tribunal. It is contended that the reporting authority and the reviewing authority have taken into account the performance of the teacher on the basis of the pass percentage of the students. It is argued that the written test, without reference to books, would demonstrate the manner in which the students are equipped by the teacher who taught them. It is pointed out from the self assessment itself that there was indication of dismal performance of the students at least in one class in which the petitioner taught the subject of Social Science. The learned Standing Counsel would pray for the dismissal of the Original Petition.

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5. The petitioner was declined promotion and he

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had approached the Tribunal earlier, wherein it was revealed that the adverse entries in the ACRs for the relevant years have not been communicated to him. Here we pause to notice that there is no dispute that the relevant

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years for the assessment are the five prior years of a subject academic year and the benchmark for promotion is a grading of 'good'. The Tribunal, on a challenge made by the petitioner against the denial of promotion, based on Dev Dutt, as to the non-communication of the grading in the ACR, directed consideration by the DPC without looking at the un-communicated adverse entries. In an appeal filed before the High Court, a Division Bench of this Court modified the direction insofar as ordering communication of the adverse entries to the petitioner, who was also permitted to make representations against it. The Division Bench of this Court directed consideration of the representations by the establishment; which exercise has been purportedly carried out by Annexure A1.

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6. Considering the ground of the petitioner that

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the consideration was made by an officer of the very same rank, we find that Annexure A1 is by the Deputy Commissioner, who is in hierarchy, above Assistant Commissioner/Education Officer. However the Deputy Commissioner who sits in appeal over the gradings in the ACR has accepted the review carried out by the Assistant Commissioner, KVS, one Johnson Mathew. Here we have to notice a very relevant impropriety that occurred in

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complying with the directions of the Division Bench in the earlier OP(CAT). The ACRs, as is seen from Annexures A5 to A8, comprises of three distinct aspects; first the self assessment by the teacher, then the assessment made by the reporting officer which in the present case is the Principal and third the review carried out by the reviewing authority, which in all the above years, is carried out by the Education Officer, which designation has been changed to Assistant Commissioner. When the reviewing officer had already acted on the assessment made by the reporting officer, there was no requirement for a further review. The establishment was directed to consider the representation of the petitioner against the entries in the ACR, as entered into by the reviewing authority. It is the reviewing authority's grading that is final in the ACR, since that authority has the power to either downgrade, upgrade or affirm the grading of the reporting authority.

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7. The reporting and reviewing officers carry out their assessment without notice to the teacher based on the self assessment and other service particulars for the year. In the case of a teacher, it is the performance of the students in the subject taught by the teacher that assumes significance. For want of a better alternative and our lack

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of experience in the matter of assessment of teachers, we cannot substitute our views on the probable relevant factors of assessment, over that of an educational establishment itself. But, the assessment having been made by the reporting and reviewing authorities, the same have to be communicated to the teacher. Only after the reviewing authority considers the issue on the basis of (i) the self assessment, (ii) the reporting authority's assessment as also (iii) other factors relevant for consideration, could there be a communication made to the officer. This is so because a reviewing authority may disagree with the reporting authority on the basis of the relevant considerations and make an up-grading or down-grading, which also has to be supported by reasons. In this context, we specifically notice the three-Judge bench decision of

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the Hon'ble Supreme Court in Sukhdev Singh v. Union of India & Ors [ 2013 KHC 4365 ], which affirmed the views expressed in Dev Dutt. The three-Judge Bench observed that not only the adverse entries; which even a positive assessment would take the colour of, if below the benchmark prescribed, all entries should be communicated to the employee. This, according to the Hon'ble Supreme Court, serves three-fold objectives. The first of which is that it

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would motivate the public servant to work harder to achieve better assessment, the second enabling the employee to make a representation if dissatisfied with the assessment and the last, but not the least, ensuring transparency in drawing up the ACRs conforming to the principles of natural justice. We find that the Deputy Commissioner who has acted on behalf of the establishment, in considering the representations, which is in the nature of an appeal, did not also make a speaking order. The operative portion of Annexure A1 is cryptic insofar as having gone through the records of assessment and representation and there being no change in the ACR. This is not what is expected of an appellate authority.

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8. In this context, more in the context of a guidance we agreed to look into the individual assessments made in the relevant years as is evident from Annexures A5 to A8. The first page of Annexure A5 is the self assessment

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and the second page is that of the reporting officer. The reporting officer though has not graded specifically the applicant, from the overall assessments made it should be treated as 'good'. The reviewing officer has, however, downgraded the petitioner to 'average'. The remarks of the reviewing authority at page 3 indicate that the reporting

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officer's comments are correct, but, however ' chargesheet issued by AC for results in S.E.E '. Thus the downgrading was obviously for reason of the issuance of a chargesheet; which admittedly was withdrawn later by the establishment. Thus, the downgrading does not have any effect and the reviewing authority having accepted the remarks made by the reporting officer, the grading in 2002-03 could only be 'good'.

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9. As far as the year 2003-04 is concerned, Annexure A6 is relevant. The reporting officer has found, on the basis of the comments made, the grading to be 'average'. The reviewing officer has accepted the said grading. Definitely when a representation is made by the teacher against an assessment made in that year, the establishment considering such representation has to necessarily look into the relevant factors including the percentage of results of the students as noticed by the reporting officer to find whether there is any justification for the teacher to seek a higher grading.

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10. In the year 2004-05, the reporting officer again has assessed the petitioner as 'good', which has been downgraded by the reviewing authority as 'average'. The learned Standing Counsel argued that it is based on the

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results as evidenced from the self appraisal, submitted by the petitioner himself. The learned Counsel for the petitioner, however, points out that in fact the results of the previous year 2003-04 and the subject year 2004-05 is very evident from the self assessment. While in the year 2003-04 the percentage of pass in Standard VI-A for the subject Social Science was 47.3, it increased considerably to 85% in the year 2004-05. We need not go into such issues since obviously as revealed from the remarks of the reviewing officer there is absolutely no reason stated for downgrading the assessment from 'good' as recorded by the reporting officer to 'average'. In fact, the reviewing officer has categorically stated in column 2 that he agrees with the remarks of the reporting officer. In such circumstances, we have to find the reviewing officers grading in Annexure A7 also to be 'good' as assessed by the reporting officer.

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11. Insofar as the academic year 2005-06 is concerned, both the reporting officer and the reviewing officer have assessed the petitioner to be 'average'. The petitioner has contentions based on the results of the students taught by him to claim a higher grade, which again has to be considered by the establishment.

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12. On the above reasoning, we issue the following directions:

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(i) Annexure A1 is set aside for reason of it being a non-speaking order and also for reason of a further review having been carried out by the establishment which was not permissible or directed as per the earlier judgment in O.P.(CAT) No.2291 of 2013.

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(ii) The assessments for the academic years 2002-03 and 2004-05 are to be treated as 'good' for the reasons stated by us; the petitioner satisfying the benchmark.

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(iii) With respect to the assessment of the academic years 2003-04 and 2005-06, the Deputy Commissioner would reconsider the representations made against the assessments and gradings granted by the reporting officer and reviewing officer. The Deputy Commissioner shall only consider Annexures A6 and A8 assessment forms which contained the self assessment, assessment of the reporting officer and the reviewing

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authority. The review made by the Assistant Commissioner after the judgment in O.P.(CAT) No.2291 of 2013 shall not be looked into at all.

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(iv) The exercise shall be carried out within a period of one month from the date of receipt of a certified copy of this judgment.

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(v) If the gradings are improved, necessarily a review DPC shall be constituted in the year 2006-07, 2007-08 and 2008-09.

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The Original Petition (CAT) is allowed with the above directions. Parties are left to suffer their

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respective costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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Vku/-

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OP(CAT).131 of 2017

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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COMPILATION NO.I

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EXHIBIT P1	A TRUE COPY OF O.A.858/2014 TOGETHER WITH ALL ANNEXURE THEREOF,FILED BY THE PETITIONER BEFORE THE CAT,ERNAKULAM.
ANNEXURE A1	A TRUE COPY OF THE MEMORANDUM BEARING F NO. 31065/OP (CAT) 2291/2013/KVS (EKMR)/ 1995 dated 30.06.2014 ISSUED BY THE 2nd RESPONDENT.
ANNEXURE A5	A TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE APPLICANT FOR THE YEAR ENDING 31st MARCH 2003 DATED 12.04.203
ANNEXURE A6	A TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE APPLICANT FOR THE YEAR ENDING 31st MARCH 2004 DATED 12.04.2004.
ANNEXURE A7	A TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE APPLICANT FOR THE YEAR ENDING 31st MARCH 2005 DATED 05.04.2005.
ANNEXURE A8	A TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE APPLICANT FOR THE YEAR ENDING 31st MARCH 2006 DATED 01.04.2006. COMPILATION NO.II
ANNEXURE A2	A TRUE COPY OF MEMORANDUM BEARING NO.F.11014/7/2011/KVSH/RPS DATED NIL, APRIL 2011, ISSUED FROM THE OFFICE OF THE 2nd RESPONDENT.
ANNEXURE A3:	A TRUE COPY OF THE ORDER DATED 26th NOVEMBER, 2012 IN O.A NO.397/11, RENDERED BY THIS HON'BLE TRIBUNAL.
ANNEXURE A4:	A TRUE COPY OF JUDGMENT DATED 12th DECEMBER, 2013 IN O.P CAT NO.2291/2013 RENDERED BY THE HON' HIGH COURT OF KERALA.
ANNEXURE A9:	A TRUE COPY OF THE REPRESENTATION DATED 01.03.2014 SUBMITTED TO THE 2nd RESPONDENT AGAINST A5 ACR 2002-2003.

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ANNEXURE A10:	A TRUE COPY OF THE REPRESENTATION DATED 01.03.2014 SUBMITTED TO THE 2nd RESPONDENT AGAINST A6 ACR 2003-2004.
ANNEXURE A11:	A TRUE COPY OF THE REPRESENTATION DATED 01.03.2014, SUBMITTED TO THE 2nd REPONDENT AGAINST A7 ACR 2004-2005.
ANNEXURE A12:	A TRUE COPY OF THE REPRESENTATION DATED 01.03.2014 ADDRESSED TO THE 2nd RESPONDENT AGAINST A7 ACR 2005-2006
ANNEXURE A13:	A TRUE COPY OF THE REPRESENTATION DATED 10.03.2014 ADDRESSED TO THE 2nd RESPONDENT.
ANNEXURE A14:	A TRUE COPY OF THE REPRESENTATION DATED 18.06.2014 ADDRESSED TO THE 1st respondent
ANNEXURE A15:	A TRUE COPY OF THE ORDER BEARING NO.F22.ESST. 2003-KVS (BGR)/29296 DATED 29.12.2003 ISSUED BY THE ASST. COMMISSIONER OF KVS, BANGALORE.
ANNEXURE A16:	A TRUE COPY OF THE SUBJECT WISE PERFORMANCE INDEX FOR THE YEAR CLASS X AND ALSO THE WEIGHTAGE AND RESULT SHEET FOR CLASS VI A, V1 B AND 9B AND 98 AS COLLECTED UNDER THE RTI.
ANNEXURE A17:	A TRUE COPY OF STATEMENT REGARDING THE PERFORMANCE INDEX OF THE APPLICANT FOR THE PERIOD FROM 2002-2012 AS PREPARED BY THE APPLICANT.
ANNEXURE A18:	A TRUE COPY OF MEMORANDUM NO.13085-3/AHC/KVS BLR/2010-11-993 DATED 21.04.2011, ISSUED BY THE EDUCATION OFFICER OF KVS REGIONAL OFFICE, BANGALORE.
EXHIBIT P2:	A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT.
ANNEXURE P3:	A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER BEFORE THE LEARNED TRIBUNAL.
ANNEXURE A19:	A TRUE COPY OF THE LETTER BEARING C.S.O.M NO.51/5/72 - Ests (A) DATED 20.05.1972, ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING.

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ANNEXURE A20: TRUE COPY OF THE INSTRUCTIONS OF DEPARTMENT OF PERSONNEL & TRAINING IN PARA 174 (9) OF P&T MANUAL, VOL.III AND THE ORDER BEARING O.M.NO.561/3/74Esst.(A)DATED 22.05.1975 IN REPORTING AND REVIEWING OFFICERS. ANNEXURE A21 A TRUE COPY OF THE ANNUAL ACADEMIC INSPECTION REPORT 2002-03.

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ANNEXURE A22 A TRUE COPY OF THE JUDGMENT IN P. KATHURIA VS. KENDRIYA VIDYALAYA SANGATHAN CENTRAL ADMINISTRATIVE TRIBUNAL, DELHI BENCH IN O.A.NO.3887/2010.

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ANNEXURE A23 A TRUE COPY OF THE LETTER BEARING NO.27/13/79-DISC., DATED 14.02.1980 ISSUED BY THE D.G.P & T.

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ANNEXURE A24 A TRUE COPY OF PARAGRAPHS 174 (7) OF P & T MANUAL VOL.III. ANNEXURE A25(A) A TRUE COPY OF THE OFFICE MEMORANDUM DATED 06.04.2011 ISSUED BY THE THEN ASSISTANT COMMISSIONER, KVS BANGALORE REGION.

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ANNEXURE 25(B) A TRUE COPY OF ANNEXURE I OF LETTER NO.21011/1/2005-ESTT.(A) (PT.II) DATED 23RD JULY 2009 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING.

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ANNEXURE A26(A) A TRUE COPY OF THE ORDER PRONOUNCED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL ON 11.10.2013 IN O.A.NO.3352/2012.

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ANNEXURE A26(B) A TRUE COPY OF THE ANALYSIS OF CBSE RESULTS, X STANDARD FROM 2002-03 TO 2009-10, PREPARED BY THE KVS BNAGALORE REGIONAL OBTAINED UNDER THE RIGHT TO INFORMATION ACT 2005.

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ANNEXURE A27 A TRUE COPY OF THE ANALYSIS OF CBSE RESULTS IN THE SUBJECT OF SOCIAL SCIENCE X STANDARD, 2011-12 PREPARED BY KVS BANGALORE REGION OBTAINED UNDER THE RIGHT TO INFORMATION ACT 2005.

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ANNEXURE A28(A) A TRUE COPY OF THE LETTER BEARING NO.F.13011/HQRS./2011-KVS (BGR) DATED 23.08.2011 OBTAINED UNDER THE RIGHT TO INFORMATION ACT 2005.

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ANNEXURE A28(B)	A TRUE COPY OF THE LETTER BEARING NO.F.13011/KVPNR/2011-12/289 DATED 03.09.2011 OBTAINED UNDER THE RIGHT TO INFORMATION ACT 2005 FROM K.V.PAYYANNUR.
ANNEXURE A29	A TRUE COPY OF THE COMMUNICATION DATED 30.10.2008, ISSUED BY THE PRINCIPAL, K.V.PAYYANNUR TO THE ASSISTANT COMMISSION OF BANGALORE.
ANNEXURE A30	A TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO.22011/3/08 ESTT.(D) DATED 11.05.1990 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING.
ANNEXURE A31	A TRUE COPY OF THE ORIGINAL REPRESENTATION OF THE APPLICANT DATED 11.03.2011 ADDRESSED TO THE 1ST RESPONDENT.
ANNEXURE A32	A TRUE COPY OF THE ORDER DATED 18TH APRIL 2013 IN CIVIL APPEAL NO.5892 OF 2006 RENDERED BY THE HON'BLE APEX COURT.
ANNEXURE A33	A TRUE COPY OF THE REPLY BEARING NO.F.13052/KVPNR/2011-12/280, DATED 29.08.2011, RECEIVED FROM K.V.PAYYANNUR, UNDER RIGHT TO INFORMATION ACT 2005.
ANNEXURE A34(A)	A TRUE COPY OF THE LETTER BEARING NO.F.13350/2012-KVS (BGR) DATED 28.06.2012 WHICH INCLUDE THE ENCLOSURES IN THREE PAGES AS MENTIONED THEREIN.
ANNEXURE A34(B)	A TRUE COPY OF THE LETTER BEARING NO.F.13350/2/KVS (BGR)/2011-12 DATED 06.07.2012.
ANNEXURE 35(A)	A TRUE COPY OF THE APAR OF THE APPLICANT FOR THE YEAR 2013-14.
ANNEXURE 35(B)	A TRUE COPY OF THE APAR OF THE APPLICANT FOR THE YEAR 2010-11.
ANNEXURE A36	TRUE COPIES OF CERTIFICATES OF EXCELLENCE ISSUED TO THE APPLICANT FOR TWO SPELLS OF THE IN-SERVICE COURSE CONDUCTED BY THE KVS, NEW DELHI.
ANNEXURE A37(A)	A TRUE COPY OF THE RANK CERTIFICATE ISSUED BY THE UNIVERSITY OF CALICUT.

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ANNEXURE A37(B)	A TRUE COPY OF ADMISSION CERTIFICATE TO THE CIVIL SERVICE MAIN EXAMINATION ISSUED BY THE UNION PUBLIC SERVICE COMMISSION TO THE APPLICANT.
ANNEXURE A38	TRUE COPY OF THE APPRECIATION CERTIFICATE RECEIVED BY THE APPLICANT IN RESPECT OF THE QUALITY RESULTS OF X STANDARD BOARD EXAMS.
ANNEXURE A39	TRUE COPY OF THE ANNEXURE EXPLAINING THE CONTENTS OF ANNEXURES A33 TO A38.
EXHIBIT P4	A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS BEFORE THE C.A.T., ERNAKULAM.
EXHIBIT P5	A TRUE COPY OF THE M.A.NO.251/2015 IN O.A.NO.858/2014 FILED BY THE PETITIONER.
ANNEXURE MA1	TRUE COPY OF THE MEMORANDUM BEARING NO.F-11055/PGT/LDE/2014-15-KVS(HQ)ESST.II DATED 12.03.2015.
ANNEXURE MA2	A TRUE COPY OF THE TRANSFER POLICY OF THE RESPONDENTS CURRENTLY IN VOGUE.
EXHIBIT P6	A TRUE COPY OF THE INTERIM ORDER DATED 18.03.2015 PASSED BY THE HON'BLE CAT, ERNAKULAM.
EXHIBIT P7	A TRUE COPY OF THE JUDGMENT DATED 27.02.2017 IN O.A.NO.858/2014 PASSED BY THE HON'BLE CAT, ERNAKULAM.

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[ TRUE COPY ]

Gopinathan Nair C.M v. the Commissioner

Case brief

What is this about?

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Gopinathan Nair C.M v. the Commissioner

Case brief

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