Central Administrative Tribunal - Mumbai
Pramod Kumar vs M/O Finance on 9 May, 2025
1 OA No.269/2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.269 OF 2016
Dated this Friday, the 9th day of May, 2025
CORAM : HON'BLE MR.SHRI KRISHNA, MEMBER (A)
HON'BLE MR.UMESH GAJANKUSH, MEMBER (J)
Shri Pramod Kumar, IRS-1986,
Aged about 55 years,
Digitally signed by Deepti Ganesh Munarshi
presently posted as Principal Commissioner of
Deepti DN: C=IN, O=Personal, OID.2.5.4.65=
dd2229ccb2a64933849d0e889f7908d1, Phone=
270b8c883fb6c7df159699dde8a3a29e49a591f4
547843867fc06f0095732d99, PostalCode=
Income Tax-II, Thane, Room No.7, B Wing,
Ganesh
400083, S=Maharashtra, SERIALNUMBER=
6th Floor, Ashar IT Park, Wagle Industrial Estate,
60e5a202fd00f69f0731b41e2e3bdfa180f471e3c
55c542947568cc8f7d6a4f4, CN=Deepti Ganesh
Munarshi
Reason: I am the author of this document
Munarshi Location:
Date: 2025.05.09 17:28:42+05'30'
Foxit PDF Reader Version: 2024.3.0
Thane - 400 604. Maharashtra. - Applicant
(By Advocate Shri R.G. Walia)
Versus
1. Union of India, through the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 001.
2. The Chairman,
Central Board of Direct Taxes,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 001.
3. Principal Chief Commissioner of Income Tax
Pune-I, having his office at Aayakar Bhavan,
12, Sadhu Vasvani Road,
Pune - 411 001. - Respondents
(By Advocate Mrs.N.V. Masurkar)
Order reserved on : 06.05.2025
Order pronounced on : 09.05.2025
ORDER
Per : Shri Krishna, Member (A)
The applicant an IRS Officer of 1986 batch was working as Commissioner of Income Tax (Central-I) hereinafter referred as 2 OA No.269/2016 (CIT-C-I), Chennai, is aggrieved by the downgrading of his Annual Performance Appraisal Report (APAR) by the Reviewing Authority. He has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"(a) that this Hon'ble Tribunal may be graciously pleased to call for the original records in the case and after examining the same, quash and set aside the entries made in the ACR for the year 2012-13 by the Reviewing Authority since the Reviewing Authority had no authority to review the ACR of the Applicant Digitally signed by Deepti Ganesh Munarshi after 31/7/2013 as also for on account of the fact that the Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= downgrading done by the Reviewing Authority is clearly perverse Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document and done in a perfunctory manner;
Munarshi Location:
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(b) that this Hon'ble Tribunal be further pleased to direct the Respondents to expunge the remarks of the Reviewing Authority whilst considering the ACR for the year 2012-13 in respect of all future promotions in the DPCs to be held in that regard by the Respondents;
(c) that this Hon'ble Tribunal be pleased to grant heavy costs in the matter;
(d) any other and further orders as this Hon'ble Tribunal may deem fit in the nature and circumstances of the case be granted."
2. It is the case of the applicant that he always secured overall grading either 'Outstanding' or 'Very Good' and he has never been rated below 'Very Good' in his entire career. It has been submitted that the DoPT OM 21011/02/2009/Estt.(A) dated 16.02.2009, laid down timeline for completion of ACR gradings. The OM clarifies that if the deadlines as set for writing of the ACRs are not met either by the Reporting Officer or the Reviewing Officer as the case may be, both the officers would forfeit their rights to enter any remarks. It 3 OA No.269/2016 has been submitted that the Reporting Officer wrote the ACR on 25.06.2013 and graded him as 'Outstanding'. However, the Reviewing Officer who downgraded the ACRs of the applicant has written the ACR on 12.09.2013 which he could not have done as the same was beyond the prescribed time limit. 2.1. It has been submitted that the Government of India, DoPT Order No.21011/02/2009-Estt.(A) dated 16.02.2009 says that the Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reporting Officer can submit the ACR until 22nd May and have no Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 right to enter any remarks beyond 30th June whereas the ACR was written by the Reporting Officer on 25th June which was within time. The applicant, thereafter, is not aware of the date on which the Reporting Officer has forwarded the ACR to the Reviewing Officer, but it is obvious that the Reviewing Officer has reviewed the ACR only on 12.09.2013 whereas the last date for him to review the ACR is 31st August. It is the case of the applicant that all actions taken by the Reviewing Officer in downgrading the ACRs post 31st August by doing the said action only on 12.09.2013 are clearly illegal and is estopped by efflux of time from entering his remarks as a Reviewing Authority.
2.2. The applicant made representation to the Accepting Authority on 30.12.2013. The Competent Authorityvide impugned order dated 25.11.2014 rejected his representation by F.No.A-29018/75/2013- 4 OA No.269/2016
GT/PER.
2.3. It has been submitted that while downgrading the rating of '8.12' given by the Reporting Officer to that of '5', the applicant's promotion to the next post of Chief Commissioner of Income Tax which was due in sometime in the year 2017-18 has been hampered because of downgrading. It has been submitted that the Reviewing Officer categorically stated that the applicant hardly took interest in Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi the work and that the exceeding the budget was only due to good Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 tax payments voluntarily made, though some efforts of the officer cannot be denied. The Reviewing Officer went further on to damage the ACR of the applicant by stating that the applicant had not achieved the target for collection of arrears demand. It is further contended that almost all assessments were completed in the last month of the financial year and there hardly was any worthwhile investigation nor good assessment orders were produced. The officer further commented that in a central charge not a single prosecution was launched and that these shortcomings were regularly brought to the notice of the DGIT, despite which there was no improvement. On the aforesaid grounds, the Reviewing Officer sought to justify downgrading of the applicant by the Reporting Officer.5 OA No.269/2016
3. It has been submitted that as per DoPT OM dated 16.02.2009 the blank ACR forms has to reach the officer concerned for writing self appraisal by 15th April where after in respect of officer who himself is a Reporting Officer on his subordinate, the submission of the report by the Reporting Officer to the Reviewing Officer is to be done latest by 22nd May where after the Reviewing Officer has to review the ACR by 5th June. The instruction is very clear and Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi categorical in that the Reviewing Officer forfeits his right to make any Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 remarks in the ACR after 31st August.
4. It has been submitted that the Principal CCIT, Tamil Nadu after receipt of the blank ACR forms from the Board was able to send it to the Director General (Investigations) only between 15th to 17th April, 2013 and that the Director General (Investigations) sent the blank ACRs to the CIT Central (hereinafter referred to as CIT Central) only sometime after 19th April, 2013. The applicant was on leave from 22.04.2013 and returned to duty only on 22.05.2013. The blank ACR form had not reached the applicant until 20.04.2013 which is the day on which he went on almost a month's leave.
5. It has been submitted that being seriously aggrieved on account of downgrading which was informed to him on 17.12.2013, the said communication is also illegal and well beyond the mandatory period as envisaged by the DoPT and supposed to be 6 OA No.269/2016 assiduously followed by the Central Board of Direct Taxes. The applicant accordingly made a representation dated 30.12.2013. The said representation came to be rejected by F.No.A-28018/75/2013- GT/PER dated 25.11.2014 which is the impugned order. The applicant's contention that the Reviewing Authority has no right to review the ACR of the applicant after 31st July, 2013 has come to be rejected by the respondents on specious grounds which are Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi untenable in law.
Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 5.1. It has been further submitted that a careful perusal of the representation dated 30.12.2013 will show as to how the applicant clearly exceeded his targets. A comparative statement of performance in Central II and Central III charges when made with the applicant's charge at Central I would show that his performance is more or less on par with the performance of Central-II & III who have ironically been graded by the same Reviewing Authority as 'Outstanding'. This goes to show that the minimum that can be contended against the Reviewing Officer is malice in fact.
Interestingly out of the 27 cases reported by the DGIT (Investigation), Chennai, as cases of significant collection exceeding Rs.50 lacs each, 11 pertains only to the applicant's charge. Similarly out of the 6 cases considered worth reporting to the Member (Inv), by the DGIT (Investigation), Chennai, 4 were pertaining to the applicant's charge. 7 OA No.269/2016 The applicant has enclosed the copies of APAR.
6. After issuance of notice the respondents have filed the reply and contested the O.A. 6.1. It has been contended that the order dated 25.11.2016 passed by the Competent Authority is well reasoned order and hence the respondents repeat and reiterate the stand of the competent authority in the speaking order is valid and the respondents have not Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi violated any legal or statutory right of the applicant and, therefore, Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 the O.A. is liable to be dismissed. In support of the stand the respondents have relied upon the following judgments of Hon'ble Supreme Court :
(i) Union of India vs. E.G. Nambudri, (AIR 1991 SC 1216) -
Reasons for rejecting representation against adverse remarks need not be recorded or communicated. But if such a decision is challenged before a court of law for judicial review the reasons for the decision may be placed before the Court.
(ii) Bharat Ram Meena vs. Rajasthan High Court at Jodhpur & Ors, (1997 (3) SCC 233) - Confidential report - adverse remarks - judicial review of remarks neither arbitrary not without factual basis held on facts, such remarks could not be quashed in exercise of writ jurisdiction - Constitution of India, Art. 226 - Judicial review - Interference. There is nothing on record to suggest that assessment 8 OA No.269/2016 of appellants merit is in any way arbitrary or without any factual basis. Nothing has been brought on record to justify that the High Court should have, in exercise of its writ jurisdiction, intervened or quashed the adverse remarks in the ACR of the appellant. 6.2. It has been further contended that the representation dated 30.12.2013 was considered strictly in accordance with the factual and legal position and the competent authority has passed reasoned Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi and speaking order dated 25.11.2014 rejecting the contentions and Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 allegations of the applicant and upholding the remarks communicated to the applicant will hold good.
In the light of the above, the respondents submitted that the O.A. is devoid of merit and the same is liable to be dismissed.
7. The applicant has filed rejoinder to the reply submitted by the respondents reiterating the submissions in the O.A. It has been submitted that all actions taken by the Reviewing Officer of downgrading the ACR on 12.09.2013 is void ab initio and non-est in law. It is, therefore, not appreciated as to how the respondents can state that the downgrading by the Reporting Officer has been dealt with in the light of the representation of the applicant and hence not open to judicial review. It is submitted that on the first principle itself the action of Reviewing Officer has to be set to naught since he had no power to review.9 OA No.269/2016
7.1. It has been further submitted that the case of the applicant is clearly covered by the principles that if a particular thing is required to be done in a particular manner, it should be done in that manner only or not done at all. The reliance of the respondents on the judgment of the Hon'ble Supreme Court in the case of E.G. Nambudiri is, therefore, clearly misplaced. So far as the reliance of the respondents on Bharat Ram Meena vs. Rajasthan High Court Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi is concerned, the judgment holds that judicial review of remarks Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 which are neither arbitrary nor without factual basis do not require to be interfered with whereas in the facts of the present case marks could never have been made and hence are clearly an exercise of power in grossly arbitrary manner. Hence the judgment in the case of Bharat Ram Meena shall also not be relevant to the facts of the present case.
7.2. It has been submitted that if the gradings of an officer have been consistently 'Outstanding', then in such a case it is difficult to appreciate as to how for a particular period, in the present case hardly 6-7 months, could the ACR be downgraded to 'Good'. The attempt of the respondents in completely ignoring the consistently good record of the applicant, therefore, clearly misplaced. The respondents are clearly trying to skirt the issue by not responding on the question as to how the Reviewing Officer could have reviewed 10 OA No.269/2016 the grading of the ACRs of the applicant since he ceased to have the power to do the same. The action of the Reviewing Officer is, therefore, in gross violation of the DoPT Circular on the subject.
In the light of the aforesaid submissions, the applicant prayed to allow the O.A.
8. The respondents in turn have filed sur-rejoinder. It has been contended that the timeline followed in case of APAR of applicant for Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= the financial year 2012-13 (24.08.12 - 31.03.13). 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 Sl. Nature of Action Date of Actual date of No. submission as submission per DoPT O.M. dated 16.02.2009 I Self-appraisal submitted by 15.04.2013 06.06.2013 the officer reported upon II Remarks made by the 30.06.2013 25.06.2013 Reporting Officer III Remarks made by the 31.08.2013 12.09.2013 Reviewing Officer As per the comments of Rev. Officer, the APAR was received in his office on 06.09.2013.
8.1. It has been submitted that when he has submitted his representation dated 30.12.2013 against the grading in the APAR for the period 24.08.2012 - 31.03.2013, the comments of reporting as well as reviewing officer were called for. On the point of contention made by the applicant about delay in review of APAR, Reviewing 11 OA No.269/2016 Officer stated that "as it is evident from the APAR the appraisal report of the officers is dated 06.06.2013 which is delayed by more than one and a half months (due date 15.04.2013). The Reporting Officer though dated is 25.06.20913, it was received in the office of the Reviewing Officer on 06.09.2013 only and it was in fact reviewed on 12.09.2013.
8.2. It has been submitted that the above facts were carefully Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi considered by the Competent Authority while disposing the Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 representation of the applicant in accordance with DoPT guidelines in detail and appropriate order dated 25.11.2014 was passed on his representation dated 30.12.2013 objectively. Moreover, as per DoPT guidelines, an officer can represent against below benchmark/adverse entries in APAR only once. Second and subsequent representation is not permissible under Rules. Therefore, the contention made by the applicant is devoid of merit and liable to be quashed.
9. The applicant has filed additional affidavit on the sur-rejoinder of the respondents. It has been submitted that in the present OA the applicant has challenged the gradings given in his ACRs for the year 2012-13 whereby the Reviewing Officer has sought to downgrade him from 'Outstanding' to just 'Good' by reducing the original mark given by the Reporting Officer which happened to be '8.12' to just '5'. 12 OA No.269/2016 The applicant had already stated in the Original Application as also in his rejoinder that he has had an exemplary service record and that the Reviewing Officer could not have entered the downgrading remark in his ACRs since the Reviewing Officer becomes functus officio by 31st August, 2013 in respect of his entitlement to make entries in the ACR of the applicant as per the DoPT OM of 2009. It is admitted by the Union of India in the reply to the rejoinder that the Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reviewing Officer has entered remarks and downgraded the Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 applicant on 12.09.2013 i.e. way after the deadline for him to make such entries which happens to be 31.08.2013. The Reviewing Officer was, therefore, clearly functus officio and lost his right to make any entries in the ACRs. The aforesaid notwithstanding, the applicant has enclosed a table showing the gradings received by the applicant from the year 2006-07 onwards until 2015-16 in order to demonstrate that out of the last 10 years, the applicant has been graded as 'Outstanding' 8 times and the only time that he has been downgraded from 'Outstanding' to mere 'Good' happens to be the ACR of 2012-13.
9.1. In the light of the above, the applicant prayed that the O.A. may be allowed and hold that the downgrading by the Reviewing Officer who had already become functus officio for the year 2012-13 has to be ignored as he was not empowered to make any such gradings 13 OA No.269/2016 post 31.08.2013.
10. During final arguments, learned counsel for the applicant placed the extract of record of applicant's ACRs grading from the year 2006-07 to 2018-2019 extracted from the official website of Income Tax Department and demonstrated that 08 years prior to the year under consideration i.e. from the Financial Year 2006-07 to 2011-12, the applicant was rated as "Outstanding" by all the Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reporting Officers. The Reviewing Officer has also rated him Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 "Outstanding" for the year 2006-07, 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12. Only for the part period from 15th September, 2008 to 31st March, 2009, the Reviewing Officer has rated him "Very Good". Subsequently, from the Financial Year 2013-14 to 2018-19 has been rated "Outstanding" by both the Reporting Officer and the Reviewing Officer. He, therefore, submits that an officer who has always been rated outstanding by the both the Reporting Officer and the Reviewing Officer for 08 years prior to the year under consideration and for the 06 years of the subsequent period, cannot be rated by the Reviewing Officer to "Good" and that too by downgrading the "outstanding" rating given by the Reporting Officer. He submitted that the Reporting Officer is the immediate supervisory officer of the applicant, who sits in Chennai and supervises his day-to-day work. He submits that the Reviewing 14 OA No.269/2016 Officer sits in Delhi and does not supervise his day-to-day work. Thus, the downgrading by the Reviewing Officer cannot be justified in the eyes of law.
10.1. Mr. Walia argues that the remarks by the Reviewing Officer that "the applicant hardly took interest in the work" is false as the applicant was not communicated even once during entire period either by the Reporting Officer or by the Reviewing Officer that he Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi was not taking interest in the work. Therefore, downgrading him Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 without giving any opportunity of being heard is in violation of principles of natural justice, which is not permissible in law. He further argued that the observations of the Reviewing Officer that "exceeding of budget was only due to good tax payments voluntarily made, though some efforts of the officers cannot be denied" is contradictory in itself as the Reviewing Officer on one hand said that it was due to "voluntary compliance" and at the same time, he says "some efforts by the officers cannot be denied". If remarks of the Reviewing Officer are to be accepted that budget target are achieved due to good tax payments voluntarily made, in that case, no officer can be rated "Outstanding" or "Below Average"
as the credit for achieving the budget target is being given by the Reviewing Officer to the voluntary tax compliance and, therefore, the blame for not achieving the budget target should also go to the non- 15 OA No.269/2016 payment by the Tax payers and no officer can be punished for not achieving the budget target. He further submitted that a remarks of the Reviewing Officer that the applicant had not achieved the target for collection of arrears demands, is totally incorrect as can be seen from (Annexure A-6) page 62 of the OA that as against target of Rs.9.42 crores, the applicant has achieved collection of Rs.11.99 crores which was 127.28% of the target. Mr. Walia drew our Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi attention to page No.2 of the Annual Performance Appraisal Report Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 (in short 'APAR') at page 26 of the OA which has been filled by the Administrative Officer of Cadre Controlling Authority shows sanctioned and working strength of staff posted with the applicant. He demonstrated that the Cadre Controlling Authority has not provided to the applicant sanctioned strength. In spite of this vital aspect the Reviewing Authority and Competent Authority have overlooked it and not taken the same into account. 10.2. Mr. Walia argued that the remarks of the Reviewing Officer that "almost all assessments were completed in the last month of the financial year and there hardly was any worthwhile investigation nor good assessment orders were produced". He submitted that the respondents were not been able to produce any mandatory Schedule of assessments to be done prior to the last month of the financial year. They have also not pointed out if there is any target 16 OA No.269/2016 prescribed for making investigation or good assessment orders. He submitted that the investigation and good orders depends on the facts of each case and, therefore, it is not correct to blame the applicant for the same. Moreover, it was never pointed out to the applicant any time before making above representation. Regarding the remark of the Reviewing Officer that "no prosecution was launched", the respondents were not been able to produce any Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi mandatory targets for launching the prosecution. Regarding the Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 remarks that "shortcomings were regularly brought to the notice of the DGIT", the respondents were not been able to produce any single communication in which the applicant has been informed about any shortcomings whatsoever in his working or in his performance. If some communication was made to the DGIT, it was for the DGIT to communicate to the applicant. If the DGIT i.e., the Reporting Officer has failed to communicate any such shortcomings to the applicant, the applicant cannot be held responsible for the failure of Reporting Officer. Therefore, downgrading is against the principle of natural justice.
10.3. Mr.Walia further argued that as per the Schedule for preparation of Confidential Report attached to OM dated 16th February, 2009 (Annexure A-3 of the OA), it has been clearly mentioned in the important notice that the Reporting Officer shall 17 OA No.269/2016 have no right to enter any remarks in the CRs after 30th June following the annual reporting period and the "Reviewing Officer shall have no right to enter any remarks in the CRs after 31st August following the annual reporting period. He argued that DoPT has not carved out any exceptions whatsoever to enable the Reviewing Officer to review the ACR after 31st August. Thus, after 31st August, the Reviewing Officer is the functus officio and, Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi therefore, his action was illegal and bad in law and, therefore, the Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 same needs to be expunged and should be treated as non-est in the eyes of law.
10.4. Mr.Walia further argued that as per the contention of the respondents that officer himself has submitted the self-appraisal late, the same is of no help to the respondents as the timeline for the Reporting Officer i.e DGIT (Investigation) to award his rating to the applicant was 30th June and he completed the reporting on 25th June, 2013 and rated him '8.12' i.e. "Outstanding". It is not the duty of the applicant to ensure that once the Reporting Officer has written his APAR, the same should reach the Reviewing Officer immediately. Moreover, if there is any delay on the part of the Reporting Officer i.e. DGIT (Investigation), the applicant cannot be punished for that.18 OA No.269/2016
10.5. Mr.Walia has argued that from the columns in Annual Confidential Report, it can be seen that it is divided in 03 parts i.e Assessment on account of planned work & target, Assessment of Attributes and Assessment of functional competency. In total, there are 04 columns for the planned work, 07 columns for Assessment of attributes and 03 columns for functional competency. The very fact that the reviewing officer has rated the applicant uniformly at the Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= grading of '05' in all columns shows that he has written it with a 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 malice as it is not possible that an officer can have just "Good" rating in all columns as against his outstanding rating prior to the year under consideration and after the year under consideration by different reporting and reviewing authorities. Therefore, he argued that the rating given by the Reviewing Officer needs to be expunged and the rating given by the reporting officer to be maintained. 10.6. Mr.Walia has placed on record the decision of Hon'ble Supreme Court in the case of Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. And others reported in (2003) 2 SCC 111 dated 03.12.2002, wherein it was held in para 14 that "it is well-settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four-corners thereof." It 19 OA No.269/2016 is submitted that since the mandatory time lines prescribed for the Reviewing Officer to review the APAR was available only up to 31st August and he became functus officio after 31st August and entries made by him on 12.09.2013 cannot be considered to be a valid entry as the same was in violation of the judgment of the Hon'ble Supreme Court in Bhavnagar University (supra).
10.7. He has placed reliance on the order of the CAT, Principal Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Bench in the case of Thanghminglian Tonsing Prasad Vs. M/o Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 Finance in OA No.100/3017/2017 dated 23rd October, 2018 whereby the evaluation made by the Reviewing Officer for the period 01.04.2014 to 31.10.2014 was set aside and evaluation made by the Reporting Officer was treated as final by the Accepting Authority for all intents and purposes and the applicant therein was rated as '8.1' for all purposes by the Tribunal. 10.8. Mr.Walia further placed reliance on the order of the CAT, Principal Bench dated 28th April, 2015 in the case of Shri Gunjan Prasad Vs. Government of India in OA No.1233/2014. The Hon'ble Tribunal has held that "it implies that the APAR of the applicant has been recorded in negligent and careless manner". It was held that "the point stands well proved that both the reporting and the reviewing officers have recorded their remarks in the APAR well past the deadlines of 30th June and 31st August as mandated in 20 OA No.269/2016 the OM dated 16th February, 2009 and, therefore, the OA was allowed". The above judgment has been upheld by the Hon'ble High Court of Delhi at New Delhi in WP (c) 5218/2018 vide judgment dated 11th September, 2018 10.9. He further placed reliance on the judgment of the Hon'ble Supreme Court in the case of M.A. Rajasekhar Vs. State of Karnataka & Anr., (1996) 10 SCC 369 decided on 16th August, Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 1996 wherein it was held that "remarks that he "does not act 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 dispassionately then faced with dilemma" must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. He should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. Even when he acted in dilemma and lacked objectivity, in such circumstances, he must be guided by the authority as to the manner in which he acted upon. Since this exercise has been done by the respondents, it would be obvious that the above adverse remark was not consistent with law. 10.10. He further placed reliance on the decision of the CAT, Principal Bench in OA No.4346/2017 in the case of Shri Rajnish Kumar Vs. Union of India & Ors. decided on 08th August, 2018 in which it was held that the APARs was recorded in contravention of 21 OA No.269/2016 the memorandum deserve to be ignored.
10.11. Mr. Walia further argues that the officer has served the department for more than thirty years and he has always been rated as 'Outstanding' / 'Very Good' by the different Reporting and Reviewing Officers. Thus, he has a legitimate expectation that he will be promoted to the post of Chief Commissioner of Income Tax (CCIT) along with his batchmates. However, because of Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi downgrading of ACRs by the Reviewing Officers, he could not be Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 promoted to the post of CCIT and had to retire as Principal Chief Commissioner of Income Tax (PCIT). Therefore, he vehemently argues that the rating of the Reviewing Officer which was given beyond prescribed time be ignored / deleted and respondents should be directed to conduct a review and promote the applicant to the post of Chief Commissioner of Income Tax (CCIT). 10.12 Shri Walia, learned counsel for the applicant further submits that looking to the ACR/APAR reports placed on record as Annexure-
A-7, it is clear that except period in question in all previous years the Performance Appraisal of the applicant from 2006-07 to 2018-19 was rated by the Reporting Officer and Reviewing Officer either as 'Outstanding' or 'Very Good' and, therefore, only in the period in question the rating given by the Reviewing Officer from '8.12' to '5' is arbitrary, unreasonable and based on the extraneous consideration. 22 OA No.269/2016
11. Learned counsel for the respondents, Mrs. N.V. Masurkar, on the other hand, has vehemently argued that the Reviewing Officer was fully justified in his remarks. She submits that the argument that the Reviewing Officer reviewed it on 12th September, 2013 which was beyond prescribed limit of 31st August, the officer himself has submitted the self-appraisal late. She submitted that even though the Reporting Officer has reported on the APAR on 25th June, 2013, Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi it reached to the Reviewing Officer on 06th September, 2013 and he Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 has reviewed it on 12th September, 2013 i.e. after one week. She submits that the time limit prescribed in the DoPT OM dated 16th February, 2009 are only guidelines and are not mandatory. 11.1. Mrs.N.V. Masurkar would argue that the Competent Authority has considered the representation of the applicant and after obtaining the remarks of the Reporting Officer and the Reviewing Officer has rejected the representation vide impugned order dated 25th November, 2014. She submitted that the impugned order is well reasoned and speaking and, therefore, the Tribunal should not make any interference in the same.
11.2. Mrs.N.V. Masurkar has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Delhi High Court in Civil Appeal No.1976/1991 wherein the CAT, Principal Bench vide order dated 27th July, 1987 has decided the case in favour of the applicant 23 OA No.269/2016 and that the same was set aside by the Delhi High Court. 11.3. She further placed reliance on the judgment of the Hon'ble Rajasthan High Court in the case of Bharat Ram Meena Vs. Rajasthan High Court at Jodhpur & Ors. dated 29th January, 1997 wherein the appeal of the petitioner was dismissed.
12. We have heard the learned counsels for both the sides at length and given thoughtful consideration to it and also the pleadings Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi and documents filed on record. We have also gone through the Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 judgments of the Hon'ble Supreme Court, Hon'ble High Courts and various orders of the Tribunal cited by the learned counsels for both the sides at the Bar.
13. Regarding submission of learned counsel for the respondents that the applicant himself has submitted the Performance Appraisal late and, therefore, the Reviewing Officer could have reviewed it beyond 31st August is concerned. We find that the applicant has explained that he was on leave and he was provided blank form only on 22nd April. Moreover, the Reporting Officer has time to report on his performance appraisal till 30th June which he has done within time as he has completed his reporting on 25th June, 2013.
Therefore, we do not find any force in her arguments on this point. Regarding her arguments that time line laid down by the DoPT are only guidelines and not mandatory and we find that DoPT OM no 24 OA No.269/2016 exception has been prescribed under which a Reporting Officer beyond 31st August, therefore, we do not find any force that Reporting Officer could have report it beyond 31st August. 13.1. We have gone through the judgment of Hon'ble Supreme Court in the case of Bharat Ram Meena Vs. Rajasthan High Court at Jodhpur and Others [1997 (3) SCC 233], relied upon by the respondents. We find that the issue before the Hon'ble Apex Court Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi in Bharat Ram Meena (Supra) decided on 29.01.1997. The case Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 pertains to Munsiff/Judicial Magistrate, the issue was regarding the integrity of the officer and Reporting Officer i.e. District and Sessions Judge has written that the "appellant's integrity was suspicious, he was not impartial, he was short tempered, his official conduct was not upto the mark, he lacked proper control over the office work, he was in irresponsible office and he did not enjoy good reputation about honesty." When the ACR was submitted to the Inspecting Judge, he remarked that "I agree with the D.J. Members of Bar also have poor opinion about his conduct and work". The report was then submitted to the Chief Justice of Rajasthan High Court who agreed with the report and observed "..... There is nothing to differ from these observations, which I endorse and remark that he is a bad officer". Under these circumstances, the Hon'ble Supreme Court has observed that Reporting and Reviewing was a matter of 25 OA No.269/2016 appreciation of evidence. However, in the case under consideration before us is totally different as in the case of Bharat Ram Meena (supra) the Reporting Officer and Reviewing Officer both were of the same view and report was giving within time but in the case before us the Reporting Officer rated the applicant as 'Outstanding' and Reviewing Officer has downgraded by 2 stages from 'Outstanding' to 'Good' and that too beyond prescribed time limit. Thus the facts Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi of Bharat Ram Meena not applicable to case before us and the same Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 is distinguished on facts.
13.2. In the second case relied upon by the learned counsel for the respondents which was judgment before the Hon'ble Supreme Court in the case of Union of India & Others Vs. E.G. Nambudiri, [AIR 1991 SC 1216] decided on 23.04.1991. Mr.Nambudiri was a Section Officer in the office of Chief Controller of Import and Exports, Ministry of Commerce. By a Memorandum dated 07.05.1985, the Director communicated the adverse remarks awarded to the respondent for the year 1984. The Hon'ble Apex Court has observed that there is no rule or administrative order for recording reasons in reacting such a representation.
13.3. We find that in the same appeal, the Hon'ble Supreme Court has held that "but the Competent Authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to 26 OA No.269/2016 consider the questions raised by the Government servant and examine the same, in the light of the comments made by the office awarding the adverse entries and the officer counter-signing the same." The Hon'ble Apex Court has further observed that "it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi considered at various levels and the reasons and opinions are Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion." 13.4. We find that the facts of the above judgment are also different from the facts before us as in the case of the applicant there is record of earlier issuance before the period under consideration and also record of after years which shows that the applicant has been graded from 2006-07 and 2018-19 except for the period under consideration, the officer was rated on 'Outstanding' / 'Very Good' by the different Reporting and Reviewing Officer. Moreover, no shortcomings was pointed out in the work of the applicant during the entire period under consideration and immediate Reporting Officer is responsible of day-
to-day supervision of the applicant has rated him 'Outstanding' and it was downgraded by two stages by the Reviewing Officer beyond the time. The Competent Authority while rejecting his representation 27 OA No.269/2016 have not considered these aspects of the matter, therefore, by the judgment is also not applicable to the facts of the case at hand.
14. We find that Hon'ble Supreme Court has considered the issue of APAR rating on various occasions:
14.1. The object of writing the confidential report was explained by the Hon'ble Supreme Court in State Bank of India Vs. Kashinath Kher reported in (1996) 8 SCC 762 to be two-fold i.e, first to give an Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi opportunity to the officer to remove deficiencies and to inculcate Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 discipline. Second, it seeks to serve improvement of quality and excellence and efficiency of public service. In Sukhdeo Vs. Commissioner, Amravati Division, reported in (1996) 8 SCC 103 the Hon'ble Supreme Court, while making a reference to Kashinath Kher (supra), observed that it would be salutary for the Controlling Officer to give prior sufficient opportunity in writing by informing him of the deficiency noticed before writing adverse remarks against the assessee officer.
14.2. In Abhijit Ghosh Dastidar Vs. Union of India, reported in (2009) 16 SCC 146, the Hon'ble Supreme Court observed that un-
communicated entry in ACR should not be taken into consideration while denying the promotion. Similar facts as in the present case of M.A. Rajshekhar Vs. State of Karnataka reported in (1996) 10 SCC 369 and found that the integrity was not doubted and service 28 OA No.269/2016 work was also found satisfactory of the assessee officer. However, the remarks were made that he does not act dispassionately when faced with dilemma. It was observed that while making such remarks, specific instances from where such inferences are drawn must be mentioned and conveyed so that the concerned Officer would have an opportunity to correct himself of the mistake. Where such an opportunity is not given and no Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi instances are mentioned, it would be evident that such adverse Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 remarks were not consistent with law.
14.2.1. We find that no specific instances were pointed out by the Reviewing Officer and the applicant was not given any opportunity to offer his comments before downgrading his APAR from '8.12' to '5'.
14.3. The Hon'ble Supreme Court in the case of State of U.P. Vs. Yamuna Shanker Misra and Another reported in (1997) 4 SCC 7 decided on 21.02.1997 has held that "the officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation 29 OA No.269/2016 and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record."
15. Adjudicating on the issue of adverse Annual Performance Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Appraisal Report (APAR) in Central Industrial Security Force (CISF), Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 a Division Bench of Hon'ble Delhi High Court in the case of Shri Tarsem Kumar Vs. Union of India & Others reported in (2014) SCC Online Del 1899 observed that writing of Appraisal Reports is a serious business on which the career progression of a person depends. The Division Bench of this Court observed that Promotion is the only incentive in a service career. In the absence of any promotion to a higher rank, not only the growth and development of the individual officer stops but equally the department or the institution gets affected. Stagnation of an employee, without there being any chance of promotion to further higher rank, could well deter the employee from taking any initiative to achieve higher targets, goals and objectives for the ultimate development and growth of the department and office which his office serves. The Annual Confidential Report (ACR/APAR) is a vital 30 OA No.269/2016 mode of assessment of the performance of an officer in the previous year. It is through this document that the suitability of an officer's promotion and career advancement is adjudged.
15.1. Hon'ble High Court went on to observe that the Reviewing Officer, while writing the APAR, must reflect that the objective of the assessment exercise is to develop an officer so that he or she can realize his or her potential. It is not meant to be a battle but Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi a development process, a cumulative effort that ensures Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 optimal outcomes. The endeavour of each appraisal must be to present the truest picture of the appraisee apropos his/her performance, conduct, behaviour and potential.
16. The Hon'ble Delhi High Court in the case of Insp.GD Krishna Rajak vs. Union of India and Others, (2012 SCC OnLine Del 4454) has considered and discussed a similar issue in Para 6 - 12 of the judgment and directed to execute the ACR grading for the year 2007 and instead take into account the ACR grading of one year back. It will be useful to extract herein the operative part of the judgment of the Hon'ble High Court herein as under:
"6. The dart board speaks it all. For all the years in question, except the year 2007, the petitioner has been graded on the seven facets, mostly 'Very Good', on some occasion 'Good' and on some occasion 'Outstanding'. The remarks for the year 2007 are a complete mismatch. The result is that for the years 1999, 2000, 2006 and 2008 the overall ACR grading of the petitioner is 'Good' and that for the years 1996, 1997, 1998, 2001, 2003, 2004, 2010 and 31 OA No.269/2016 2011 the ACR grading is 'Very Good' and for the years 2002, 2005 and 2009 is 'Outstanding', for the year 2007 it is 'Average'.
7. Now, it is not possible that for 11 years a person is either 'Very Good' or 'Outstanding' and then for one year he drops to 'Average' and then regains 'Very Good' and 'Outstanding' in the next three years.
8. Let us illustrate one trait. The trait No. (iii) i.e. 'Power of Expression'. This is not a trait which is acquired and lost overnight. The dart board would reveal that for this 'Outstanding', but for the year 2007 Digitally signed by Deepti Ganesh Munarshi the officer has written that petitioner's power of Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= expression is not effective.
Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0
9. There is obviously a problem, and the problem appears to be as disclosed by the petitioner; that the Commandant under whom he was working i.e. M.P. Singh was accepting lower quality of ration for troops and the petitioner being a member of the Tendering Opening / Condemnation Board had wanted samples to be obtained and in retaliation, the Commandant Shri M.P. Singh, made entries reflecting petitioner in a poor light.
10. We are pained to note that in the impugned memorandum dated February 09, 2012, the Competent Authority has rejected the representation of the petitioner against the adverse grading awarded to the petitioner and the overall grading 'Average' for the year 2007, oblivious of the fact that a wrong against the petitioner stands stark in the ACR grading for the year 2007.
11. The dart, shot at the dart board, is bound to see the bull's eye i.e. the offending comments noted in the ACR grading of the petitioner because of their inherent strength and character to attract the dart to the board where the ACR gradings stand noted.
12. We allow the writ petition and strike down the ACR grading awarded to the petitioner for the year 2007, and since the Competent Authority has totally misapplied its mind, being of the opinion that no useful purpose would be served for the Competent Authority to be directed to reconsider the ACR grading for the 32 OA No.269/2016 year 2007, we declare that said year's ACR grading be excluded while considering the entitlement of the petitioner for promotion. Highlighting that at the DPC which met somewhere in the year 2008, the petitioner was superseded on account of the below benchmark ACR grading for the year 2007, we direct that a Review DPC be held and while considering the ACR gradings of the petitioner, to exclude the ACR grading for the year 2007 and instead take into account the ACR grading of one year back.
Needful be done within 12 weeks from today. Needless to state, if the petitioner is found fit for promotion, he be promoted with all consequential benefits of seniority, pay fixation etc. except back-wages being not paid, on Digitally signed by Deepti Ganesh Munarshi the principle of petitioner not having shouldered the Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= responsibility for the higher post; but all other benefits Ganesh 400083, S=Maharashtra, SERIALNUMBER= of notional promotion from a back-date which would 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 include revised pay fixation would be given effect to."
17. After serving the various judgments of the Hon'ble Apex Court and the Delhi High Court, the Hon'ble AFT in para 17 and 25 has held as under :
"17. Thus, what is significant is that if any unacceptable conduct or behaviour which may not necessarily be documented, is observed by the Reporting Officer, it should be communicated and opportunity given to the Appraisee Officer to explain before it being made a basis of adverse report. This is also in consonance with the principle of natural justice of being heard before being condemned."
......
"25. However, noting the fact that the applicant has since retired from service, direction is also issued to the respondents to conduct a Review Promotion Board to consider the case of the applicant for promotion to the rank of the Air Commodore as per his revised AR profile and if so found fit, to grant him the notional promotion protecting his original seniority along with all 33 OA No.269/2016 consequential benefits of pension from the date of his retirement. However, there shall be no backwages for notional promotion for the period the applicant is notionally deemed to be in service based on the principle of "no work no pay".
18. Hon'ble Armed Forces Tribunal (AFT) Principal Bench, New Delhi in OA No.1748/2018 Gp Capt. Jarnail Singh Boparai ADM/FC Vs. Union of India and others decided on 20.08.2024 has Digitally signed by Deepti Ganesh Munarshi considered a similar issue wherein the issue was that the Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh confidential report was initiated based on the perception of the Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 Reporting Officer rather than demonstrated performance was found to be against the principles of natural justice.
19. We find force in the arguments of learned counsel for the applicant that action of the Reviewing Officer by downgrading rating of the applicant by two stages beyond prescribed time and that too after time line to review has already expired was not permissible. We, further find force in his arguments, the officer rated 'Outstanding' throughout 2006-07 and 2018-19 by Reporting and Reviewing Officers and who has been rated 'Outstanding' by Reporting Officer during period under consideration could not have been downgraded by the Reviewing Officer and that too when not even single instance was pointed out by the applicant during entire period under consideration. Therefore, the same was in the principles of natural justice.
34 OA No.269/2016
20. A perusal of the dart board reveals that for all the years 2006- 2007 onwards except during period under consideration, the applicant was mostly rated 'Outstanding' by both the Reporting and Reviewing Officers and only on one occasion, he was rated as 'very good' by the Reviewing Officer.
21. We further find that on the various attributes like assessment, attributes, assessment of functional competency, assessment of Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= planned work the officer always been rated as 'Outstanding/'Very 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 Good' by the various Reporting and Reviewing Officers except for the year under consideration. Therefore, as held by Delhi High Court in the case of Insp./GD Krishna Rajak (supra) wherein the representation of the Insp. GD. Rajak was reported by the Competent Authority, the Hon'ble High Court allowed the Writ Petition and strike down the ACR awarded to petitioner on the ground that the Competent Authority totally misplaced its mind. The Hon'ble High Court was pleased to direct the execute the 'Average' grading given to Insp. Rajak and to hold a review DPC. We find that the applicant is similarly place with that of Insp. Rajak.
22. Thus, in view of the aforesaid discussion, we are of the considered view that downgrading done by the Reviewing Authority and remarks of the Reviewing Authority is unsustainable in the eyes of law and liable to be set aside and prayers made in Para 8(a) and 35 OA No.269/2016
(b) of the OA deserves to be allowed. Therefore, the grading of '8.12' given by the Reporting Officer deserves to be restored and downgrading and remarks given by the Reviewing Authority deserves to be excluded.
23. In the conspectus of above facts and circumstances of the case and judicial pronouncements of the Hon'ble Apex Court, the Hon'ble Delhi High Court, the Hon'ble Armed Forces Tribunal and Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a591f4 Ganesh 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi that of the Principal Bench as discussed above, we find that the OA Reason: I am the author of this document Munarshi Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 deserves to be allowed and is accordingly allowed with the following directions:-
(a). Impugned order dated 25.11.2014 is quashed.
(b). Since the applicant has retired from service, the respondents are directed to convene a review promotional DPC to consider the case of the applicant for promotion to the rank of Chief Commissioner of Income Tax (CCIT) after excluding the remarks given by the Reviewing Officer within a period of 90 days from the date of receipt of certified copy of this order. After excluding the remarks of the Reviewing Officer, if he is so found fit to grant him the notional promotion from his original seniority, along with all consequential benefits of pension from the date of his retirement in further period of 30 days. However, there shall be no backwages for notional promotion for the period of the applicant is notionally 36 OA No.269/2016 deemed to be in service based on the principle of "no work no pay.
Hence, the OA is allowed.
(c). There shall be no order as to costs.
(d). Pending MAs, if any, stand closed.
Digitally signed by Deepti Ganesh Munarshi
Deepti DN: C=IN, O=Personal, OID.2.5.4.65=
dd2229ccb2a64933849d0e889f7908d1, Phone= Ganesh 270b8c883fb6c7df159699dde8a3a29e49a591f4 547843867fc06f0095732d99, PostalCode= 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e3c 55c542947568cc8f7d6a4f4, CN=Deepti Ganesh (Umesh Gajankush) (Shri Krishna) Munarshi Munarshi Reason: I am the author of this document Location:
Date: 2025.05.09 17:28:42+05'30' Foxit PDF Reader Version: 2024.3.0 Member (J) Member (A) H/dm.