Central Administrative Tribunal - Bangalore
G T Rao vs Intelligence Bureau on 20 April, 2023
1 OA No.1125/2019 & OA No.588/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/01125/2019
AND
ORIGINAL APPLICATION NO.170/00588/2021
ORDER RESERVED ON : 24.0
24.03.2023
DATE OF ORDER : 20.04.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri G.T.Rao,
S/o late G.Muneiah,
(PIS No.124666),
No.124666) aged 53 years,
O/O Deputy Central Intelligence Officer (DCIO),
Subsidiary Intelligence Bureau,
Ministry of Home Affairs,
Government of India, Ward No.25,
Block No.16, Vijayanagara Colony,
Cantonment Area, Bellary - 583104. ...Applicant
(By Advocate Shri P.S.Malipatil )
Vs.
1. The Union of India,
By its Secretary (Home),
Ministry of Home Affairs,
2 OA No.1125/2019 & OA No.588/2021
North Block, Central Secretariat,
New Delhi - 110 001.
2. The Director,
Intelligence Bureau,
Ministry of Home Affairs (MHA),
Government of India, North Block,
New Delhi -110001.
3. The Joint Director /Est.,
Intelligence Bureau,
Intelligence Bureau Headquarters,
No.35, SP Marg, Bapu Dham,
New Delhi -110021.
4. The Joint Director,
Subsidiary Intelligence Bureau,
Ministry of Home Affairs (MHA),
Government of India, No.8, Infantry Road,
Bengaluru -560001.
5. The Joint Deputy Director,
(now Additional Deputy Director),
Subsidiary Intelligence Bureau,
Ministry of Home Affairs (MHA),
Government of India,
No.08, Infantry Road,
Bengaluru -560001.
6. The Joint Deputy Director/ACR,
APAR Cell, Intelligence Bureau Hqrs.,
No.35, Sardar Patel Marg,
Bapu Dham,
New Delhi 110001. ....Respondents in OA 1125/2019
3 OA No.1125/2019 & OA No.588/2021
1. The Union of India,
By its Secretary (Home),
Ministry of Home Affairs,
North Block, Central Secretariat,
New Delhi - 110 001.
2. The Director,
Intelligence Bureau,
Ministry of Home Affairs (MHA),
Government of India, North Block,
New Delhi -110001.
3. The Additional
dditional Director/Est.,
Intelligence Bureau,
Intelligence Bureau Headquarters,
No.35, SP Marg, Bapu Dham,
New Delhi -110021.
4. The Joint Deputy Director /Est.,
Intelligence Bureau,
Intelligence Bureau Headquarters,
No.35, SP Marg, Bapu Dham,
New Delhi -110021.
5. The Addl. Director,
Subsidiary Intelligence Bureau,
Ministry of Home Affairs (MHA),
Government of India,
No.8, Infantry Road,
Bengaluru -560001. Respondents in OA No.558/2021
(By Advocate Shri N.Amaresh)
4 OA No.1125/2019 & OA No.588/2021
ORDER
Per: Justice S.Sujatha ...........Member(J)
Since common and akin issues are involved in both the matters relating to the same applicant, the OAs are clubbed, heard together and disposed of by this common order.
2. The applicant has filed these the two application applications under Section 19 of the Administrative Administrative Tribunals Act, 1985 seeking the following reliefs:
OA No.1125/2019
"i. To set aside the APAR 2017-18 18 and APAR 2018 2018-19 vide Orders dated 31.08.2018 and 18.07.2019 vide Annexures Annexures-
A20 & A21 passed by Respondents No.4 and 5 and further set aside the Order of Respondent No.6 dated 26.11.2018 and 16.09.2019 vide Annexures-A23 Annexures A23 and A24.
ii. Pass such other orders as this Hon'ble Tribunal deems fit to grant in the above facts and circumstances of the case in the ends of justice and equity.OA NO.588/2021
i. To set aside the order No.18/C No.18/C-3/19(1)/II-31487-31500 dtd. 6.12.2021 passed by Respondent No.4 received on 6.12.2021 vide Annexure A11.5 OA No.1125/2019 & OA No.588/2021
ii. Pass such other order/s as this Hon'ble Tribunal deems fit to grant in the above facts acts and circumstances of the case in the ends of justice and equity."
3. The facts in brief as narrated by the applicant are that he entered the service of the Intelligence Bureau, Ministry of Home Affairs, Government of India in the year July, 1994 as ACIO ACIO-II. Thereafter, he was posted at several places and from April, 2017 he was posted at Bellary as DCIO. The applicant contends that wit within a period of six months he was transferred to Bengaluru by order dated 17.11.2017 without considering the fact of his wife's 's physical disablement due to polio residual paralysis, paralysis as she is suffering from serious condition called Benign Paroxysmal Positional Pos Vertigo (BPPV) for the last 10 years for which there is no permanent treatment; she he is to be constantly monitored by a person for all her daily daily activities. In view of these circumstances, the applicant submitted a representation dated 23.11.2017 requesting the Respondent No.5 No. to retain his services at the office of DCIO Bellary till the completion of his son's graduation tenure at Bellary. Subsequently, he approached this Tribunal in OA No.738/2017 against the order of transfer. This Tribunal Tribuna granted an interim order of stay of transfer dated 17.11.2017 and finally the OA was allowed on 31.01.2018 in view of the 6 OA No.1125/2019 & OA No.588/2021 statements ents made by the Respondent No.5 th that the said respondent has no objection to post the applicant in special project of relevance and permitted to retain the services of the applicant at Bellary.
4. It is averred by the applicant that after the disposa disposal of the OA, the Respondent No.5 directed the applicant to work as DCIO/Special Projects at Bellary as per the memo dated 27.02.2018. Subsequently, the applicant has filed OA No.1125/2019 before this Tribunal, challenging the orders dated 31.08.2018 31.08.201 and nd 18.07.2019 passed in APAR 2017-18 and 2018-19.
19. During the pendency of the said application, the respondents have issued an order dated 11.08.2020 for compulsory retirement of applicant under Rule 56(j)(i) of the Fundamental Rules, which would come into force after expiry of a period of three months. Being aggrieved by the said order dated 11.08.2020, the applicant approached this Tribunal in OA 400/2020. The said application was disposed of of, vide order dated 13.10.2020 reserving liberty too the applicant to file representation before the representation committee against the order dated 11.08.2020. This Tribunal directed the representation committee to consider the representation on merits sans raising any issue of limitation, if such 7 OA No.1125/2019 & OA No.588/2021 representation is presented within a period of 10 ddays from the date of the order i.e., 13.10.2020.
5. The applicant contends that a representation was filed by him before the representation committee within 10 days i.e., on 16.10.2020 praying the representation committee to consider the statement statements made in the representation and to allow the same, continuing the services of the applicant in the interest of justice and equity. It is the grievance of the applicant that even before the disposal of the representation, yet again a notification dated 17.11.2020 for compulsory retirement of the applicant was issued as the notice period of three months had expired. Again the applicant approached this Tribunal challenging the notification dated 17.11.2020 in OA No.521/2020, No.521 2020, this Tribunal issued notice to the respondents. In the meanwhile, the responden respondents by order dated 09.12.2020 withdrew w the said notification with immediate effect without prejudice to any further action which may be considered in the circumstances of the case. Accordingly, the said OA was disposed of as having rendered infructuous. Again Respondent No.4 has passed an order dated 06.12.2021 for compulsory retirement of the applicant under Rule 8 OA No.1125/2019 & OA No.588/2021 56(j)(i) of Fundamental Rules. Being aggrieved, the applicant has preferred OA No.588/2021.
6. The applicant being aggrieved by the APAR gradings for 2017-18 18 and 2018-19, 2018 submitted representation before the Joint Director/ACR ACR, to cancel the said APAR grading as the reports have been given by Additional A Deputy Director/Intelligence ntelligence, the Ministerial Cadre Officer, fficer, who cannot assess APAR of Class Class-I executive Gazetted officer and for downgrading APARs sans issuing any memo. The sa same has been rejected. Being Being aggrieved by the APAR grading for 2017-18, 2018- 19 and rejection of his representation representation by letter dated 26.11.2018 of the Joint Deputy Director/ACR, the applicant has preferred OA No.1125/2019.
7. Learned Counsel Shri P.S. Malipatil representing the applicant in both the matters matter argued that the Joint Director, Respondent No.4 in OA No.1125/2019 deliberately and intentionally intentionally, in retaliation to the action of the applicant applicant in approaching this Tribunal against the order of transfer which was withdrawn, withdrawn, has awarded the APAR grad gradings, 6 and 4 in the APAR relating to the years 2017-18 2017 18 and 2018 2018-19 respectively, albeit he had no competency.
competency Learned Counsel submitted that though a special 9 OA No.1125/2019 & OA No.588/2021 task to report drawing of water by tail end farmers from Tungabhadra river was assigned, no infrastructure infrastructure was provided despite the applicant claiming minimum facility to travel from one Taluk to another Taluk and one village to another village by vehicle. The request made by the applicant was totally rejected by Respondent No Nos.4 and 5 for providing the necessary infrastructure to complete the special task assigned to the applicant. The applicant sought for providing an official vehicle or to allow him to hire vehicle from the market, the same was refused and he was directed to use public transport vehicle vehicle operated by the Government or by the Corporation. Notwithstanding these short comings comings, the applicant was able to complete the task assigned and the report was submitted within the time frame. However, the special task was again reassigned to submit s furthermore details by visiting the farmer leaders, NGOs leaders and the Tungabhadra dam security officials without providing the necessary infrastructure. In th this background, Respondent No.5 has assessed the APAR for the year 2018 2018-19 awarding Grade-4, which is less than the previous year grade. No memo was issued while down grading the APAR grades.
10 OA No.1125/2019 & OA No.588/2021
8. Learned Counsel has placed the copies of ACR of the applicant for the years 2008-2009 to 2020-2021.
2021. Learned Counsel further argued that the applicant has put in more than 25 years of service, in all the previous years, he has secured APAR grades not below 6 and also received Cash awards in 12 nos. and he has received Kautilya Award from Director of Intelligence Intelligence Bureau, New Delhi and commendation certificate from Director Intelligence Bureau, New Delhi and commendation certificate from Additional Director, SIB, Mumbai. Since these grading in APAR for 2017-18 2017 and 2018-19 are assessed by Ministerial Cadre Officer, who is not an executive officer and who has no jurisdiction or authority to assess the APAR performance of Class Class-I Gazetted Officer, the same being done with the biased mind, deserves to be set aside.
9. Learned Counsel further argued that in view of the challenge made to the transfer order in OA No.738/2017 No.738/2017 and the grading of APAR for the years 2017-18 2017 and 2018-19 19 in OA No.1125/2019, the applicant has been issued with an order of compulsory retirement under Rule 56(j)(i) of the Fundamental Rules, Rules, which is nothing but an act of revenge to spoil the career of the applicant. The representation committee as well as the Respondent No.4, Joint Deputy Director/Est., in OA No.588/2021 have 11 OA No.1125/2019 & OA No.588/2021 not considered the representations submitted by the applican applicant in a proper perspective, as such the interference of this Tribunal is warranted.
10. Learned Counsel has placed reliance on the following decisions:
1) The State of Gujarat Vs. Umedbh
Umedbhai M.Patel - Appeal (Civil)
1561/2001, dated 27.02.2001 - (2001) 3 SCC 314
2) Sri Gunjan Prasad vs. Government of India - OA
No.1233/2014 dated 28.04.2015 - Central Administrative Tribunal, Principal Bench, Delhi.
3) Ranvir Singh vs. South Delhi Municipal Corporation, Delhi -
OA No.153/2020 dated 22.10.2020 - Central Administrative Tribunal, Principal Bench, New Delhi.
11. Learned Counsel Shri N.Amaresh representing the respondents referred to the APAR of the applicant for the period of 2014 2014-
15 and 2016-17
2016 to show that APAR had been report
reported by Ministerial
cadre officer.
er. The copies of the APAR of the similar Executive Officers like that of the applicant, initiated/reported by the same Ministerial officer 12 OA No.1125/2019 & OA No.588/2021 under question, are placed before this Bench along with memo dated 08.12.2022, to justify the competency of the re reporting officer in assessing the APAR grading of the applicant. Learned Counsel referring to the detailed reply statement filed on behalf of the respondents argued that the respondents had agreed to retain the applicant at Bellary in a project of relevance taking a considerate view and submitted the same before this Tribunal in the proceedings of OA No.738/2017 and acted accordingly. The applicant has continuously lamented lack of resources rather taking it in his stride and move forward in a positive positive direction. The respondents advised the applicant to use public transport only due to administrative constraints. No distinction is drawn drawn between a M Ministerial Cadre Officer and an Executive xecutive Cadre Officer fficer in performing the functions of the Government.
ent. The argument that no Ministerial Cadre O Officer is entitled to give him a direction or apprise of his performance is uncalled for. The protracted correspondence of the applicant has caused the inordinate delay in completing the task assigned and invariably variably the respondent is bound to reflect the same in the performance appraisal report. The request of the applicant for review of grading in APAR for 2017 2017-18 and 2018-19 were duly considered and rejected by the competent authority. The conduct of thee applicant reflects insubordination towards the superiors and 13 OA No.1125/2019 & OA No.588/2021 disobedience of the orders of the supervisory officers officers, has to be viewed seriously.. The grading of APAR for 2017- 2017-18 and 2018-19 pertains to the relevant period and the same has no bearing with the past record. The task assigned to the applicant has not been completed to the satisfaction of the competent authority.
12. Learned Counsel further argued that as per the provisions contained under Rule FR 56(j)(i) and guidelines provided by the DOPT from time to time, the service record of the applicant was examine examined and following the recommendation off the internal committee of Investigation Bureau approved by the Review committee at Ministry of Home Affairs, the applicant was served order dated ed 11.08.2020 and the same was challenged by the applicant before this Tribunal in OA No No.400/2020. As the applicant had ha not availed the remedy of filing representation before the representation committee, committee, the Tribunal disposed of said OA with liberty to the applicant to file a representation before the representation committee against the order dated 11.08.2020. Pursuant to which, the applicant submitted his representation on 16.10.2020 16.10.2020, which was forwarded for consideration of the representation commit committee. The representation was duly considered by the representation committee and 14 OA No.1125/2019 & OA No.588/2021 the committee was of the considered view that it was a fit case for compulsory retirement under Rule 56(j)(i). After approval/acceptance of the competent authority, the order ord off compulsory retirement of the applicant has been issued. Accordingly, the learned Counsel sought for dismissal of the OA.
13. We have carefully considered the rival submissions of the learned Counsel for the parties parties and perused the original files placed before us in compliance with the directions issued to the respondents.
14. Annual Confidential Reports and APAR grading of the applicant for the years 1994-95 1994 to 2018-19 19 are available in the original files. Except the grading for the year 2018 2018-19 assessed at 4 points, for all other years, the grading is Good or very Good or Outstanding. The grading of 6 for the year 2017-18 2017 18 has been downgraded to 4, relating to the year 2018-19.
2018
15. Noting in the original file, inasmuch as the recommendations of the Departmental Screening Committee dated 004.02.2020 consisting of three members i.e, Chairman and two Members reads as under: 15 OA No.1125/2019 & OA No.588/2021
"Service records and APAR grading of 35 GOs for the quarter January March, 2020 have been reviewed.
January-March, Committee has recommended to propose the names of S/Shri Prakash Minz, AD/Exe, DK Saxena, AD/Exe and Shri Golakaram Thirupati Rao, DCIO/Exe for compulsory retirement under FR 56(j). Further, Committee is of the view that no case is made out for action against 32 GOs as envisaged in DOP&T OM No.25013/01/2013 No.25013/01/2013-Estt. A-IV IV dated September 11, 2015."
16. The said recommendations of the Screening Committee wass placed before the Standing Review Committee for its final recommendations of review of officers under FR FR-56(j) and Rule 48 of Pension Rules, 1972 to ensure probity of Government servants. The note dated 07.07.2020 at para 5.4 reads thus:
"5.4 No disciplinary iplinary proceedings was initiated against Shri Rao in the past on the grounds considered by IB's Screening Committee for his compulsory retirement. Further, in the APARs for the years 2014-15, 2014 15, 2015 2015-16 and 2016-17, the Reporting Officer and the Reviewing Officer has assessed the officer as energetic, very knowledgeable, exceptionally able, consistent, unusual potential and good organizer. Only in the APAR for the year 2018-19, 2018 19, he has been adversely assessed by the Reporting Officer and the Reviewing Off Officer."16 OA No.1125/2019 & OA No.588/2021
As per MHA's order dated 08.12.2015, the composition of committee for reviewing the cases of Gazetted Officers working in CPOs including Central Paramilitary Forces is stated as under:
under:-
(i) Additional Secretary/Special Secretary/ Secretary Chairman (in (in-charge of Police-II Division), MHA
(ii) Joint Secretary/Additional Secretary level Officer Member nominated by Department of Industrial Policy and Promotion (DIPP) DIPP vide its OM O dated 04.08.2017 has nominated Shri Ravinder, Joint Secretary in the Review Committee of MHA. The meeting of the Standing Review Committee was scheduled on 07.07.2020 through VC. However, the meeting could not be held therein due to technical al problem in VC link. Hence, the file was referred to the Member (Shri Ravinder, Joint Secretary, DIPP) of the Standing Review Committee for his recommendation. The said Member has opined as under:
"I do not agree with the recommendations of Departmental Screening Committee."
Cogent reasons are assigned for arriving at such a decision. Thereafter, the file was submitted for consideration of the Chairman of the Standing Review Committee.
Committee. However, the Chairman,
17 OA No.1125/2019 & OA No.588/2021
Standing Review Commiittee has disagreed wi
with the
recommendation/opinion of the Member and recommended for
compulsory retirement of the applicant and another vide order dated 16.07.2020..
17. In terms of the order dated 09.12.2020 during the pendency of OA No.521/2020, the notification dated 17.
17.11.2020 regarding retirement of the applicant under FR56(j)(i) FR was withdrawn with immediate effect without prejudice to further action which may be considered in the circumstances of the case. Subsequent to the disposal of OA No.400/2020 filed before this this Tribunal, the applicant has submitted representation before the Representation Committee ommittee against the notification dated 17.11.2020.
18. It is discernible from the original files that as per the minutes of the meeting of the Representation Committee ommittee held on 04.12.2020, the Representation epresentation Committee ommittee found that the material placed before the committee did not show any compelling ground for compulsory retirement of the applicant except the reported decline in performance for three years. Hence the Representation Representation Committee was of the considered view that the case of Shri G.T.Rao, applicant needed to be reviewed 18 OA No.1125/2019 & OA No.588/2021 afresh by the Standing Review Committee. Minutes of the meeting of the Standing Review Committee (consisting of two Members) dated 31.08.2021 would ld reveal that the Standing Review Committee went through the material on record including recommendation of the Representation Committee and considered the case of the applicant afresh. Taking into account the facts of incompetence and inefficiency in the work allotted to applicant and his performance post reinstatement from compulsory retirement, the Committee found the case fit for compulsory retirement of the applicant. Again the matter was placed before the Representation Committee. Minutes of the meeting of the Representation Commit Committee dated 22.10.2021 discloses that the Representation Committee opined that the case of the applicant was a fit case for compulsory retirement under FR 56(j). In arriving at such a decision the reasons assigned are are that the applicant who was assigned the specific task of sensitive nature failed to complete the task. The applicant was warned for submitting a perfunctory perfunctory report, lacking even basic details, on the matter of sensitive nature and for questioning the competence of his supervising authority. It is stated that the applicant acted in an insubordinate manner and indulged in unnecessary correspondence with Headquarters on trivial issues, which caused loss of 19 OA No.1125/2019 & OA No.588/2021 time and disturbed the peace at the place of employment. The task to submit a study report on illegal withdrawal withdrawal of water from Tungabhadra river by tail end famers, was not completed even after lapse of 18 months. These are the specific instances cited, cited based on the report of the Head of the Bangalore and the material on record including recommendations of the Standing Review Committee. The views of the Representation Committee dated 04.12.2020 consisting of the very same three Members has been changed on 22.10.2021. This change of opinion is not based on any new material. Absolutely there was no changed circumstances in the case. The meeting of the Standing Review Committee was held on 31.08.2021. As could be seen from the minutes of the meeting held by the Representation Committee and the Standing Review Committee, it appears the declined inefficiency inefficiency of the applicant for not completing the special task assigned at Bellary is the reason for issuing compu compulsory retirement order under Rule 56(j).
19. In the recent judgment of Hon'ble Apex Court in the case of Captain Pramod Kumar Bajaj vs. Union of India and others in Civil Appeal No.6161/20222 (DD 03.03.2023), the Hon'ble Apex Court referring eferring to the settled legal principles held that in the teeth of the series of 20 OA No.1125/2019 & OA No.588/2021 orders passed by the Tribunal and the High Court in favour of the appellant therein, the respondents elected to withhold his vigilance clearance, thereby compelling the appellant therein, to file contempt petitions against the concerned officer for non non-compliance of the orders passed. Both, oth, the High Court as well as the Tribunal Tribunal, issued notices for wilful disobedience of the orders passed. In the proceedings before the High Court, on the one hand, the respondents kept seeking adjournments on the ground that steps were being taken to forward the appellant's name therein to the ACC ACC for being processed for his appointment as Member. Having regard to the fact that the respondents therein, did not take disciplinary proceedings initiated against the appellant ttherein to its logical conclusion and instead issued an order compulsorily retiring him, observed that there is no doubt that rule of law is the very foundation of a well-governed governed society and the presence of bias or malafides in the system of governance would strike at the very foundation of the values of a regulated social order.
order. Any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary, cannot withstand judicial scrutiny, or iit must be struck down. It has been further observed that though FR 56 (j) contemplates that 21 OA No.1125/2019 & OA No.588/2021 respondents have absolute right to retire a Government servant in public interest and such an order could have passed against the appellant therein, any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appel appellant lant therein, as 'Oustanding' and has assessed his integrity as 'Beyond doubt', but in less than three months reckoned therefrom, the respondents therein had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired, retired the same was viewed seriously. It has been held that on piercing pierc the smoke screen, it was found that the order of compulsory retirement cannot be sustained. Such an order was held to be punitive in nature and was passed to short short-circuit the disciplinary proceedings pending against the appellant therein and ensure his immediate removal. Accordingly, adverse consequences, if any, flowi flowing from the order of compulsory retirement imposed on the appellant therein therein, were set aside.
20. In the State of Gujarat jarat vs. Umedbhai M. Patel reported in (2001) 3 SCC 314, the Hon'ble Apex Court has laid down the broad 22 OA No.1125/2019 & OA No.588/2021 principles that ought to be followed in matters relating to compulsory retirement as under:
"(i)
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead dead-
wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record sha shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a puniti punitive measure.
measure."
23 OA No.1125/2019 & OA No.588/2021
21. It is settled legal position that the Government is empo empowered and entitled to compulsorily retire the Government servants from service with a view to improve efficiency of the administration or to weed out the people of doubtful integrity integrity or who are corrupt corrupt, provided it satisfies the underlying test of serving the interest of public not if no sufficient ground/cause/ ground/cause/reason was available to take disciplinary action in accordance with law.
22. In the State of Orissa & Ors. Vs. Ram Chandra Das reported in (1996) 6 SCC 331, the Hon'ble 'ble Apex Court has held that the Government, before taking taking such decision to retire a G Government employee compulsorily from service, has to con consider the entire record of the Government overnment servant including the latest reports reports.
23. In Gunjan Prasad supra the CAT, Principal Bench has referred the order in V.K.Sharma vs. Union of India & Anr. (OA No.4606/2011) decided on 03.01.2012, wherein it has been held that as per settled law, law, recording of ACRs is within the legitimate domain of the competent administrative authorities; there is very limited scope for judicial intervention in such cases. Whereas, previously according to the prevailing DOP&T instructions, only adverse remarks were to be 24 OA No.1125/2019 & OA No.588/2021 communicated; as a sequel sequel to the decision of the Hon'ble Apex Court in the matter of Dev Dutt vs. Union of India and others in Civil Appeal No.7631/2002 dated 12.05.2008, all remarks which would affect an employee adversely in grant of service benefits are required to be communicated. This is on the principles of natural justice so that the affected official does get an opportunity to represent his case before the authorities.
ities. However, once such remarks are communicated and the representation is considered by competent authorities, a further probe into the matter is not ordinarily called forth.
24. It is clear that the integrity of the applicant herein, was not doubted ubted at any time. Opinion of decline in efficiency of work sans providing requisite infrastructure appears to be fragile and is unsustainable. No financial irregularities are committed by the applicant leading to financial loss to the State. Merely on the ground of insubordination with the seniors, the committee would not have come to the conclusion that the applicant was a fit person to be retired from service. In the circumstances, the order is punitive having been passed to ensure immediate removal removal of the applicant with some oblique or extraneous purpose rather than in the public interest. As such, the 25 OA No.1125/2019 & OA No.588/2021 compulsory retirement order is in contravention to Article 311 of Constitution of India.
India It is necessary for the court to lift the veil to find out the genuineness of an order or the misconduct of the Government servant concerned or to know the bonafide bonafides. No concrete evidence is available to show that there was drastic deterioration in the quality of applicant's work or integrity that entails compulsory retirement of the applicant.. The grounds for compulsory retirement do not cast an aspersion on the conduct or character of the applicant. It appears, the applicant approaching this Tribunal challenging the orders of the respondents may ma be one of the reason for issuing the order styled as compulsory retirement order. But in reality, it is punitive in nature and not sustainable. For the aforesaid reasons, the order of compulsory retirement passed under 56(j)(i) of the Fundamental Rules is not sustainable.
25. As regards the competency of the reporting officer in assessing the grading of the APAR of the applicant in 2017 2017-18 and 2018- 19, we are not inclined to accede to the arguments advanced by the learned Counsel for the applicant. The very same reporting off officer has assessed the grading of the applicant in the subsequent year. Merely for 26 OA No.1125/2019 & OA No.588/2021 the reason that lower grading is given for the year 2018 2018-19 in the AP AR, we cannot arrive at a conclusion that the reporting officer had no competency. The reports were written by the Ministerial Cadre Office Officer is not a ground to declare it invalid as the said supervisory officer is senior to the applicant and has handled similar responsibilities. However, to meet the ends of justice, principles of natural justice ought tto have been adhered to while downgrading the ranking of APAR for the year 2018-19.. The same is lacking. The attendant circumstances speaks about the tussle between the parties inasmuch as providing infrastructure including vehicle for effective completion complet of project work. Hence, APAR grading for the year 2018-119 cannot be approved.
26. For the reasons aforesaid, we pass the following:
ORDER
1) The order dated 06.12.2021 passed by Respondent No.4 (Annexure A11 in OA No.588/2021) is set aside.
2) The orders dated 26.11.2018 and 16.09.2019 passed by Respondent No.6 (Annexures A23 A23 and A24 respectively in OA No.1125/2019) are set aside.27 OA No.1125/2019 & OA No.588/2021
3) The grading of the applicant reported in APAR 2018-19 shall be ignored.
4) Both the OAs stand disposed of accordingly.
No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
28 OA No.1125/2019 & OA No.588/2021