Central Administrative Tribunal - Jabalpur
Rakesh Sharma vs M/O Mines on 16 May, 2024
1 O.As.Nos200/00171,177,334 & 335/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Applications Nos.200/00171,177,334 & 335/2018
Gwalior, this Thursday, the 16th day of May, 2024
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Rakesh Sharma, S/o Late Shri G.P. Sharma, Aged about 55 years,
Presently working as General Manager (Mining),Mineral
Exploration Corporation Ltd. Serangdag Project, P.O. Kusmi,
District Dalrampur (C.G.) R/o Aryan Lodge, PO Kusmi, District
Balrampur (C.G.) Pin. 497 224. -Applicant
(By Advocate: Ms. Namrata K. Agrawal)
Versus
1. Union of India, Through its Secretary, Ministry of Mines,
Shastri Bhawan, New Delhi.
2. Secretary, Ministry of Mines, Government of India,
Shastri Bhawan, New Delhi.
3. Chairman-cum-Managing Director, Mineral Exploration
Corporation Ltd., Dr. Baba Saheb Ambedkar Bhawan, High Land
Drive Road, Seminary Hills, Nagpur Maharashtra 440 006.
4. Director (Technical), Mineral Exploration Corporation Ltd.,
Dr. Baba Saheb Ambedkar Bhawan, High Land Drive Road,
Seminary Hills, Nagpur, Maharashtra 440 006.
5. General Manager, Dr. Baba Saheb Ambedkar Bhawan,
High Land Drive Road, Seminary Hills,
Nagpur, Maharashtra 440 006 - Respondents
(By Advocate: Shri Dharmendra Soni)
(Date of reserving order: 23.02.2024)
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2 O.As.Nos200/00171,177,334 & 335/2018
ORDER
By Kumar Rajesh Chandra, AM:-
By way of filing these Original Applications, the applicant is calling in question the legality, validity, propriety and correctness of the adverse communication in the Annual Performance Appraisal report of the applicant starting from the year 2012-2013, 2013-2014, 2014-2015 & 2015-2016. Further, the representations of the applicant has been rejected by the authority vide order dated 01.07.2017, 21.11.2016 & 06.07.2017 respectively.
2. Precisely, the case of the applicant is that he was appointed as General Manager (Mining) in Mineral Exploration Corporation Limited (for brevity 'MECL') through an open advertisement conducted for direct recruitment post held on 01.12.2011.
Applicant is presently posted as General Manager (Mining) at Serangdag Mining Project, PO Kusmi District Balrampur, Chhattisgarh. The applicant was shocked and surprised on receiving adverse grading for the period April, 2012 to March 2013. The APAR was supplied to the applicant vide letter dated 13.02.2017. Prior to recording of the impugned grading/adverse Page 2 of 25 3 O.As.Nos200/00171,177,334 & 335/2018 entry the applicant was neither served with any show-cause notice nor any effective opportunity of hearing was afforded to the applicant detailing him to explain his conduct, failing with adverse entries cannot be endorsed in the APAR dossier of the applicant. The entire performance and potential profile of the applicant would show that no specific reason and instances are quoted so as to lower down the ratings of the applicant. It is further submitted by the applicant that it is the settled law that the APAR of the employee cannot be changed without affording an opportunity to the employee concerned or counselling so as to enable to the employee to improve and then only such short comings can be recorded in the APAR. The respondent department has failed to comply with the Department of Public Enterprise (DPE) Office Memorandum (OM) dated 28th May, 2009, wherein it is instructed that the final grading should be communicated to the officer reported forthwith. Aggrieved by the aforesaid order, the applicant categorically submitted a representation to the Competent Authority and contended that the adverse communication for the year 2012-13 is unfounded and deserves to be reviewed by the Page 3 of 25 4 O.As.Nos200/00171,177,334 & 335/2018 authorities. Moreover the APAR of the applicant is belatedly recorded whereas it ought to have been recorded within a reasonable period as detailed in the DPE Office Memorandum (OM) dated 18.10.2005 along with Office Memorandum dated 28.05.2009. As per the said circular the Reporting Officer should complete his report within a period of 1 & ½ months. However, in the present matter, it took years for the Reporting Authority to write the APAR of the applicant. A copy of the circulars are at Annexure A/4. That in the representation to the adverse communication, the applicant categorically submitted that he was informed about his APAR rating for the year 2012-13 after expiry of more than 1 year of the reporting year 2012-13 vide letter dated 13.02.2017. On this count alone the adverse entries in the APAR are liable to be set aside. The applicant has not received any adverse communication from the Appraiser/Reporting Authority. 2.1 It has been further submitted by the applicant that the Reporting Authority after giving high numerical grading to the applicant in the column of performance and potential profile has abruptly cancelled the same and there are cuttings and other Page 4 of 25 5 O.As.Nos200/00171,177,334 & 335/2018 overwriting in the entire APAR. This creates a doubt that the APAR of the applicant is modified by the authorities at the behest of someone and the same could not have been done without having valid reason. The applicant had made the representation which was rejected by the reporting authority which is illegal in the eyes of law. The applicant has challenged the impugned order on the ground that the Circular issued by the DPE from time to time have not been adhered to. The APAR does not contain any reasons for the corrections done by the reporting officer and the same cannot pass the litmus test laid down by the Wednesbury principles of fair play and equity. During the entire reporting period the applicant was never warned, cautioned or noticed by the respondents regarding shortcomings in this regard. The respondents department has rejected the representation without applying their mind. The APAR is a tampered one and there is no reasons for cutting and overwriting.
3. The respondent department has filed their reply to the Original Application, wherein it has been submitted by the respondents that as per the practice prevalent in MECL at that Page 5 of 25 6 O.As.Nos200/00171,177,334 & 335/2018 time, adverse entries were communicated to employees who receive "Poor" Rating. In deference to the SC judgement and the related DoPT O.M., this matter has been taken up and due administrative procedure has already been evolved, since Financial Year 2017-18 for communicating the same to employees, as a proactive measure of upholding transparency with regard to communicating of Performance Appraisal marks to the concerned employee. APAR process for Executives is being transitioned from offline manual system to Online APAR system which is in addition to implementation of ERP system for HR Processes (Including PMS/APAR Systems) that is also underway. The applicant though holding a senior position - GM (Mining) cannot be considered as a Top Management Incumbent i.e. Board Level Incumbent. Therefore, the O.M. of DoPT dated April, 05, 2010 is not applicable to the applicant. The APAR ratings for the year 2012- 13 was conveyed by the HR Department vide letter dated 13.02.2017. On the request of the applicant entire photocopy of his APAR for 2012-13 had been provided to him vide letter dated Page 6 of 25 7 O.As.Nos200/00171,177,334 & 335/2018 13.02.2017. The observation of the Accepting Authority is not to be misconceived as corresponding to the grade that is awarded. 3.1 The respondents further submitted that the Accepting Authority has very clearly outlined the factual discrepancies in applicant's self-appraisal for his APAR 2012-13 vide letter dated 01.10.2014, which was supplied to applicant. The feedback regarding the performance of an employee will be as per the work performed by him. In case it is not up to the mark, the appraisal will not be palatable to the employee and he will put forth grievances to hide his inefficiency or lack of will to work harder. The reporting/accepting authority has the authority to provide comments (no matter what the interpretation of these comments be by recipient of comment) based on actual performance. In such case just because there has been a delay in finalisation/communication of the said APAR or because appellant does not agree with the appraisal do not make appraisal of performance of appellant null and void. It is nowhere a practice that the employee has to be served a Show Cause Notice just because his/her superior officers have done their duty i.e. Page 7 of 25 8 O.As.Nos200/00171,177,334 & 335/2018 appraising his performance against agreed targets set for the employee for a particular F.Y. Service of show-cause notice is the first step followed in the Disciplinary Process based upon findings of misconduct. In the instant case there is no such activity due to which the applicant should be served a show-cause notice. 3.2 It is further submitted by the respondents that it is settled law that APAR of employee cannot be changed without affording an opportunity of hearing or counselling, so as to enable the employee to improve his conduct. The actual performance of the applicant has been appraised and which not being welcome to the appraisee, he is giving it a colourable twist to give the notion that it has been "changed". In the entire process of Appraisal no where it is mandated that after every Appraisal by the Reporting Officer or the Accepting Authority or both, there has to be an intervening step of Reporting back the feedback/counselling, which would itself defeat/render redundant the entire spirit of Performance Appraisal and lengthen it, if not, by more than a year.
3.3 The respondents further submitted that the probation period of the applicant was for 1 year as is the practice i.e. for 4 Page 8 of 25 9 O.As.Nos200/00171,177,334 & 335/2018 Quarters viz. Dec. 2011 Feb 2012, March 2012, May 2012, June 2012, August 2012, September, 2012 - November, 2012. Probation was extended by one quarter i.e. for December 2012- February 2013, which too was condoned later vide order dated 06/12.2013, based on comments dated 05/12/2013 by reporting officer and accepting authority on appellant's quarterly assessment report for period 01/12.2012 to 28/02/2013. All available Quarterly Assessment Reports were provided to the appellant vide letter dated 18/04/2017 in response to his request for the same vide e-mail dated 15/02/2017. It has been submitted by the respondents that the applicant has presented the same allegations in his representation dated 27-02-2017 to the Secretary, Govt. of India, Ministry of Mines. Comments on these very allegations were provided vide letter dated 01.07.2017 to the applicant. In spite of these clarifications, applicant has repeated the same allegations yet again, which are, denied by the respondents.
3.4 The respondents submitted that the post of Executive Director" does not exist in MECL, nor was any vacancy for the same advertised in MECL, while the matter of applying outside Page 9 of 25 10 O.As.Nos200/00171,177,334 & 335/2018 for the post of Director is through PESB, New Delhi. In the present case it relates to intimation of marks of APAR for FY 2012-13 on 13.02.2017 and adverse comments therein which have purportedly shocked the applicant. The request of the applicant to provide him the APAR rating and the copy of the same for the year 2012-13 was considered and accordingly intimation was sent to the applicant. It has been specifically submitted by the respondents in their reply that the representation of the applicant was directly addressed to the Secretary, Ministry of Mines without utilising and going through the proper channel i.e. through the MEL, Board. Hence the reply furnished by MECL in this context outlined this very drawback (Annexure A/1), apart from addressing the grievances made by the applicant and providing whatever documentation he desired. But the applicant has completely misquoted this reply of MECL as being equivalent to a verdict, which makes the Reporting Officer purportedly "judge in his own cause". The respondent department has denied the contention that representation was rejected by an incompetent authority. Page 10 of 25
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4. The applicant has filed rejoinder to the reply filed by the respondents Nos. 3 to 5. The applicant has reiterated the grounds as mentioned in the Original Application. It has been submitted by the applicant that the applicant was awarded penalty "Censure" vide order dated 19.12.2015. However, the same does not have any bearing in the present case. Moreover, the said order is subjudice before Central Administrative Tribunal, Circuit Bench at Nagpur in O.A. No. 2101/2017.
5. The respondents department has filed additional reply to the rejoinder filed by the applicant. It is submitted in the Addl. Reply by the respondents that in the light of the Hon'ble Supreme Court Judgement an office memorandum related to such event and since financial year 2017-18 the communication of performance appraisal marks is being effected as a proactive measure and to establish transparency. There is no violation and compliance with the Supreme Court Judgement. In the light of the O.M. dated 8.10.2005, top level management incumbents are to be translated as Board Level Executives i.e. Functional Directors, appointed by Govt. of India. There is no mention in the referred O.M. dated Page 11 of 25 12 O.As.Nos200/00171,177,334 & 335/2018 8.10.2005 which is indicative GM or DGM level Executive being included in the conglomeration of "top level management incumbents". Therefore, the said O.M. is not applicable to the case of the applicant.
6. Heard the learned counsel for the parties and perused the pleadings and documents available on record.
7. From the pleadings, it is clear that the applicant was recruited in the respondent department through an open advertisement on 01.12.2011. The main contention of the applicant is that adverse grading has been entered in the APAR for the period 1.4.2012 to 31.3.2013 which has been supplied to the applicant vide letter dated 13.02.2017 (Annexure A/3). The applicant has submitted that no Show Cause Notice or effective opportunity of hearing was afforded to the applicant detailing him to explain his conduct. The applicant has relied upon the instructions the issued by Department of Public Enterprise (DPE) vide Office Memorandum dated 18.10.2005 along with O.M. dated 28th May, 2009 of DOP&T (Annexure A/4), wherein it is instructed that the final grading should be communicated to the Page 12 of 25 13 O.As.Nos200/00171,177,334 & 335/2018 officer reported forthwith. Secondly as per the O.M. dated 28.5.2009 issued by the DPE, the reporting officer should complete his reporting within a period of 1 ½ months. But in the instant case, the reporting officer had first completed the Reporting Officers portion on 21.2.2014 and again on second time re-written on 23.3.2015 by over-writing and the Accepting Authority received the same on 25.8.2014 and accepted it on 24.3.2015 which is in contravention of the above instructions and guidelines stipulated in the DOPT circulars and DPE O.M. (Annexure A/4). Thus there is a delay of 11 months in completing the Assessing officer's part of APAR . It is curious to note that the overwriting by the Reporting Officer was done on 23.03.2015, after it was received by the Accepting Authority on 25.08.2014. The relevant paragraphs of O.M. dated 18.10.2005 (Annexure A/4) at the time of submission of APAR are as under:
"4. Time for submission of APRs:
A systematic, objective and regular performance appraisal, system requires that all confidential reports are written immediately after the end of the relevant year. For the sake of uniformity it may be ensured that the confidential reports of all top and senior level managers are written, reviewed and counter-signed within 45 days of the expiry of each Financial Year so that the duplicate Page 13 of 25 14 O.As.Nos200/00171,177,334 & 335/2018 copies of the reports are received by the administrative Ministry by 20th May of each year. "
It is also relevant to note Para 6 of the said O.M. dated 18.10.2005 which is also reproduced as under:
"6. Communication of adverse entries recorded in APRs.
(i)All adverse entries recorded in the APR of an officer should be communicated within one month by the Reviewing Officer after they have been seen by the countersigning authority, if any. The communication should be in writing and record to that effect should be kept in the Confidential Roll of the Officer. Where there is no Reviewing Officer, the adverse entry should be communicated by the Reporting Officer likewise.
(ii) While communicating the adverse remarks to the officer concerned, the identity of the superior officer making such remarks should not be disclosed. Further, the gist of favourable entries may also be communicated.
It, however, needs to be ensured that the remarks are communicated in such a form that the identity of the officer making particular remarks is not disclosed. "
8. The applicant has relied upon the order passed by the Central Administrative Tribunal, Principal Bench in O.A. No.1233/2014 dated 28.04.2015. In this order the Principal Bench of the C.A.T. has decided the issues regarding the ACR. Para 21 of the said order passed by Principal Bench, the objective of recording confidential reports (ACR) has been dealt with which is reproduced hereunder:Page 14 of 25
15 O.As.Nos200/00171,177,334 & 335/2018 "21. In the case of Devendra Swaroop Saxena Vs. Union of India & Ors. in OA No 4258/2013 decided on 19.12.2014, the objects of recording confidential ACR have been dealt with in Para 18 of the order, which is being reproduced as hereunder:-
18. Additionally, we have consulted decisions of the Apex Court in Amar Kant Chaudhary versus State of Bihar [AIR 1984 (SC) 531]; State of Haryana versus P.C. Wadhwa [AIR 1987 (SC) 1201]; Union of India versus E.G. Nambudiri [AIR 1991 (SC) 1216]; S. Ramachandra Raju versus State of Orissa [1994 (5) SLR 199]; Sri Rajasekhar versus State of Karnataka [1996 (5) SLR 643]; State Bank of India versus Kashinath Kher [AIR 1996 (SC) 1328];
State of U.P. versus Ved Pal Singh [AIR 1997 (SC) 608]; Swatantar Singh versus State of Haryana [AIR 1997 (SC) 2105]; Union of India versus N.R. Banerjee [1997 SCC (L&S) 1194]; State of U.P. versus Yamuna Shanker Misra [1997 (4) SCC 7]; State of Gujarat vesus Suryakant Chunilal Shah [1999(1) SCC 529]; P.K. Shastri versus State of M.P. & Ors.[1999(7) SCC 329], B.P. Singh versus State of Bihar [2001 SCC (L&S) 403] and also the decision of Ahmedabad Bench of this Tribunal in the matter of A.P. Srivastava versus Union of India & Ors [OA No.673/2004 decided on 09.01.2007] on the basis of which following principles could be culled out:-
(i) Article 51(A)(j) enjoins upon every citizen to constantly endeavour to prove excellence individually and collectively. Given an opportunity an individual employee strives to improve excellence and thereby efficiency of administration would be augmented.
(ii) The object of writing confidential reports is two fold i.e., to given an opportunity to the officer concerned to remove the deficiencies, to improve his performance and to realize his potential and secondly Page 15 of 25 16 O.As.Nos200/00171,177,334 & 335/2018 to improve the quality & efficiency of the administration.
(iii) The object of communicating adverse ACR to the officer concerned is to enable him to make amends, to reform, to discipline himself and show improvement towards efficiency, excellence in public administration.
(iv) One of the uses of ACR is to grade him in various categories like outstanding, very good and satisfactory and average etc.
(v) Purpose of adverse entries is to be forewarn an employee to mend his ways and improve his performance.
(vi) The ACRs must be recorded at two levels.
(vii) The ACRs must be recorded objectively and after a careful consideration of all the materials. It should not be a reflection of personal whims or fancies or prejudices, likes of dislikes of a superior.
(viii)The Apex Court in Nambudiri s case after 'referring to the Constitution Bench decision in Mohinder Singh Gill and G.S. Fijji has held that principles of natural justice apply to administrative orders if such orders inflict civil consequences. Civil consequences means anything which affect a citizen in his civil life. Unjust decision in an administrative enquiry may have more far reaching consequences than a decision in a quasi-judicial enquiry.
(ix) The Apex Court in Amar Kant Chaudhary and Yamuna Shankar Misras case has emphasized the need for sharing information before forming an adverse opinion. The Apex court in Amar Kant Choudhary had asked the Executive to re-examine the existing practice Page 16 of 25 17 O.As.Nos200/00171,177,334 & 335/2018 of writing of ACRs to find a solution to the misuse of these powers by officers, who may not be well disposed.
(x) Representations against adverse/below benchmark entries must be disposed of by the prescribed competent authority and not by other.
(xi) The disposal of the representation must be made in a quasi judicial manner by a reasons order on due application of mind.
9. It is an admitted fact that the respondents have not followed the guidelines issued by the DOPT. As per O.M. dated 16.2.2009 dealing with the subject of timely preparation and proper maintenance of ACRs. This O.M. categorically states that where the ACRs are not initiated by the reporting officer for any reason beyond 30th June of the year in which the financial year ended, he shall forfeit his right to enter any remarks in the ACR to be reported upon. Similarly, the reviewing officer shall also forfeit his right to enter any remarks beyond 31st August. The relevant portion of the said OM is extracted as below:-
"2. As cases continue to occur where confirmation, regular promotion, appointment to sensitive posts etc., could not be considered in time because of non- availability of ACRs for the relevant period, the matter of timely completion of ACRs was further reviewed in this Department and it has been found necessary to prescribe a Page 17 of 25 18 O.As.Nos200/00171,177,334 & 335/2018 time limit after which the Reporting/Reviewing Officer shall forfeit his right to record the ACR. It has been decided that while the time-limits prescribed in the aforesaid OM dated 23.9.1985 should be adhered to as far as possible, in case the ACR is not initiated by the Reporting Officer for any reason beyond 30th June of the year in which the financial year ended, he shall forfeit his right to entry and remarks in the ACR of the officer to be reported upon and he shall submit all ACRs held by him for reporting to the Reviewing Officer on the next working day. Similarly, the Reviewing Officer shall also forfeit his right to enter any remarks in the ACR beyond 31st August of the year in which the financial year ended. The Section entrusted with maintaining the ACRs shall, while forwarding the ACRs for self-appraisal with copy of the Reporting/Reviewing Officers, also annex the schedule of dates as enclosed herewith. It shall also bring to the notice of the Secretary concerned in the case of Ministry/Department and the Head of the Organization in the case of attached and subordinate offices, the names of those Group A and B Reporting Officers and Group A Reviewing Officers in the month of October after receiving the completed CRs who have failed to initiate/review the ACRs even by 30th June or 31st August as the case may be. The Secretary in the Department/Head of the organization in the case of attached/subordinate officers may direct to call for the explanation of the concerned officers for not having performed the public duty of writing the ACRs within the due date and in the absence of proper justification direct that a written warning for delay in completing the ACR be placed in the ACR folder of the defaulting officer concerned.
3. In case the remarks of the Reporting officer or Reviewing Officer as the case may be have not entered in the ACR due to the concerned officer forfeiting his right to make an entry as per the provision in para 2 above, a Page 18 of 25 19 O.As.Nos200/00171,177,334 & 335/2018 certificate to this effect shall be added in his ACR for the relevant period. In case both the Reporting officer and Reviewing officer had forfeited their rights to enter any remarks, the CR format with the self appraisal given by the officer to be reported upon will be placed in the ACR dossier.
10. In the instant case, the ACR for the year 2012-13 is involved. As per Annexure A/3 APAR for the year 2012-13, the reporting authority should complete his reporting within a period of 1 ½ months. But in the instant case, the reporting officer had first completed the Reporting Officers portion on 21.2.2014 and again on second time re-written on 23.3.2015 by over-writing and the Accepting Authority received the same on 25.8.2014 and accepted it on 24.3.2015 which is in contravention of the above instructions and guidelines stipulated in the DOPT circulars and DPE OMs.(Annexure A/4). Thus there is a delay of 11 months in completing the Assessing officer's part of APAR . It is curious to note that the overwriting by the Reporting Officer was done on 23.3.2015 after it was received by the Accepting Authority on 25.8.2014.
11. It is settled legal position of service jurisprudence that in the absence of any statutory rule, the administrative Page 19 of 25 20 O.As.Nos200/00171,177,334 & 335/2018 instruction/direction/guidelines will hold the field. Reliance is placed to the judgement passed in the case of S.K.Mathur & Ors vs. UOI & Ors,. Reported in (1998) 4 SCC 134 wherein para 16 it has been held as under:
"in the absence of Statutory Rules made under Article 309 of the Constitution, appointments and other conditions of service can be regulated by administrative orders or executive instructions. Therefore, to our mind, the challenge to the competence of the Chairman CBDT fails in light of the above discussions."
12. The second contention of the applicant is regarding the adverse remarks which had been entered in the APAR without giving any opportunity of hearing and without affording opportunity of counselling/correcting the conduct of the employee, is bad in law. It has been held by CAT, PB in the case of Gunjan Prasad (supra) that the principle of natural justice is to be followed so that the affected officer does get an opportunity to represent his case before the authorities. 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. But it is the basic principle of natural justice that the employee must get an opportunity to Page 20 of 25 21 O.As.Nos200/00171,177,334 & 335/2018 correct/counsel his deficiency which has occurred during the course of his service. In this context the applicant has rightly relied upon the case in Yamuna Shankar Mishra 1994 Supp.(3) SCC 424 wherein it has been held that if despite giving opportunity of counselling, warning, the performance of the employee does not improve, then only such a shortcoming can be mentioned in his APAR. In the instant case, admittedly, no opportunity of counselling, warning was afforded to the applicant and no short comings were brought to his notice and hence recording adverse entries in the APAR for the reporting year is arbitrary and not tenable in the eyes of law.
13. The next contention of the learned counsel for the applicant is that in the APAR for the year 2012-13 remarks were written by the reporting officer without giving an opportunity to the applicant. From Annexure A/3 at 27, 28, 29, 30, 31, 32, 33,34, 35, 36 there are drastic downgrading, cuttings and over writings in the remarks columns wherein there is a drastic change in the total grading. In view of such position of law the natural justice demands that once something has been reported by the reporting officer, there should Page 21 of 25 22 O.As.Nos200/00171,177,334 & 335/2018 not be any change without giving an opportunity to the applicant. The respondent department has only submitted that it is within the prerogative of the authorities to do this so. But in our considered view, there is a clear violation of principle of natural justice and the explanation given by the respondent department is not tenable in the eyes of law specially against the law of natural justice. The department has failed the litmus test laid down by the Wednesbury principles of fair play and equity.
14. The learned counsel for the applicant also contended that the representation of the applicant against the adverse entries in the APAR has not been decided by a designated competent authority. The General Manager (HR), an officer of the equivalent rank is not competent to decide that there is no merit in the representation and hence it cannot be forwarded to the Ministry for consideration and the action of the General Manager (HR) is not tenable in the eyes of law and liable to be set aside.
15. In view of the foregoing discussion we are of the considered view that the orders dated 01.07.2017, 21.11.2016 & 06.07.2017 and also the adverse remarks recorded in the APAR for the years Page 22 of 25 23 O.As.Nos200/00171,177,334 & 335/2018 2012-2013, 2013-2014, 2014-2015 & 2015-2016 are liable to be quashed and set aside. We order accordingly and direct the respondents to retain initial numerical and overall grading by Reporting Authority before overwriting and remove all adverse entries made by the Accepting Authority in the APAR of the applicant for the years 2012-2013, 2013-2014, 2014-2015 & 2015- 2016 in accordance with law and provide all consequential benefits.
16. With regard to the representations of the applicant decided by the General Manager (HR), we note that in the first line of Annexure A-1 order dated 01.07.2017 it is stated that there is no merit in the representation of the applicant and hence it cannot be forwarded to the Ministry. Since the General Manager (HR) who is of an equal rank officer to the applicant is not the designated competent authority to decide the representation of the applicant. The representation against the adverse entries in the ACR/APAR is addressed to the Hon'ble Secretary & Competent Authority, Ministry of Mines and the same ought to have been forwarded for disposal by the competent authority rather than the General Page 23 of 25 24 O.As.Nos200/00171,177,334 & 335/2018 Manager (HR) deciding it and returned to the applicant. It is well established principle of law that representation against the ACR/APAR has to be decided by an authority superior than the reporting officer and the Reviewing Officer. Principle of natural justice demands that the representation submitted by an employee against the adverse entries has to be decided by a superior authority than the Reporting Officer and the Reviewing Officer so that no prejudice is caused to the employee concerned. Here, it is found that the representation submitted by the applicant has been decided by an authority at the lower level and not the designated competent authority. In this, case the representation is addressed to the Secretary, Ministry of Mines and it has to be decided by him only. Hence we hold that the action of the General Manager (HR) amounts to miscarriage of justice and is not tenable in the eyes of law and is liable to be set aside. We do so. Ordered accordingly.
17. In the backdrop of our above order, the applicant is at liberty to file a fresh representation within 45 days from the date of receipt of a certified copy of this order and the competent designated authority will decide the fresh representation so submitted within Page 24 of 25 25 O.As.Nos200/00171,177,334 & 335/2018 sixty days from the date of receipt of the same by a speaking order which shall be communicated to the applicant.
18. In the result, all the Original Applications are allowed on the above terms. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
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