Central Administrative Tribunal - Delhi
Shri R.K.Anand vs Union Of India Through Defence ... on 1 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 284/2011 New Delhi this the 1st day of February, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri R.K.Anand Son of Late Shri K.G. Anand, R/o B 503, Vigyan Vihar, GH 19, Sector 56, Gurgaon-122011, Haryana Posted as FA (Project-75) & IFA (Project Varsha), Ministry of Defence. Applicant (Present in person) VERSUS 1. Union of India through Defence Secretary, Ministry of Defence, South Block, New Delhi-110001 2. The Chairman, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110011 3. Controller General of Defence Accounts, Ulan Batar Road, Palam, Delhi Cantt-110010 Respondents O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
Challenge in this OA is to the order dated 28.09.2010, passed by Joint Controller General of Defence Accounts, rejecting the representations dated 19.04.2010 and 13.07.2010 of the Applicant against the grading in the Annual Confidential Reports(ACRs), which are below the prescribed benchmark of 'Very Good' for promotion. The ACRs, in which the below benchmark gradings were recorded, pertained to the year 2003-04 (01.04.2003 to 31.12.2003 and 01.01.2004 to 31.03.2004) and part of the year 2004-05 (06.12.2004 to 31.03.2005).
2. The facts of the case, as culled from the OA, are that the Applicant is a 1979 batch officer of the Indian Defence Accounts Service (IDAS). A Departmental Promotion Committee (DPC) met on 05.10.2009 to consider promotion of the officers belonging to IDAS to the Higher Administrative Grade (HAG). The prescribed benchmark for promotion to HAG is 'Very Good'. The Applicant was found 'Unfit' for promotion by the DPC on the basis of the above mentioned below benchmark grading in his ACRs, which had not been communicated to him. It has been stated by the Applicant that all the reviewing and the reporting officers of the relevant ACRs have already retired from service. The Applicant approached this Tribunal in OA number 3163 of 2009, which was decided on 20.01.2010 with the direction to the Respondents to communicate below benchmark remarks to the Applicant within six weeks, giving him an opportunity to make representation against such remarks. It was directed that in case of upgrading of the grades, a review DPC should be held to consider the case of the Applicant for promotion to HAG. The Applicant filed Miscellaneous Application number 255/2010 and Review Application number 135/2010 against the order dated 20.01.2010, both of which were dismissed by the Tribunal. The Writ Petition number 7992/2010 against the above order dated 20.01.2010 was also dismissed by the High Court. The Respondents forwarded the copies of the ACRs, in which below benchmark grading had been recorded, to the Applicant. The Applicant made a representation on 25.02.2010 to the first Respondent, Defence Secretary, asking for certain clarifications and copies of some documents. He asked for the following clarifications:
(A) Please intimate whether::
1) The communication under reference, which has been issued by Asstt. C.G.D.A. (Admin), is a communication of adverse remarks required by rule (para 8.2, annex-1: DoP OM No. 51/5/72-Estt. (A) dtd. 20-05-72) to be made by the Reviewing Officer.
2) The copies of some ACRs that have been communicated without in any way indicating which remarks have been treated as adverse for assessing my fitness for promotion by the DPC held on 5-10-09 comprise only adverse remarks, since as per order of honble CAT, PB and also as per rules (DoPT OMs No.21011/1/2005-Estt. (A) dtd. 6-01-10 and No 21011/1/2006-Estt. (A) dtd. 28-03-06, copies at annex-2) only adverse remarks are to be communicated.
3) The adverse remarks are being communicated within one month of their being recorded as required by rules (para 20, Dos, annex-3).
4) The adverse remarks refer only to defects which had persisted despite the superior officers efforts to have them corrected (para 8.1, annex-1) and whether any warning/ displeasure/ admonition/reprimand was given in respect of the remarks.
5) My representation against the adverse remarks is to be considered by the Competent Authority having the requisite experience and independent knowledge of my performance qualities, attributes, attitude, ability, skill, knowledge, initiative etc. and of specific incidents pointing to my character, conduct, aptitude or shortcomings pertaining to the report period.
6) The experience of supervision, during the period of report, in respect of Accepting, Reviewing, Reporting and Reported officers is available to the Competent Authority who is to consider my representation against adverse remarks. Copies of the following documents were sought:
7) Documentary proof, material, evidence, facts, figures, circumstances, specific instances in support of adverse remarks required as per instructions (paras 8,10 of Dos & 4.9 of Donts, annex-3: CGDA No.AN/XIII/13128/Vol.XI dtd. 24-03-99).
8) Opportunities given in writing (paras 9 of Dos & 5 of Donts, annex-3) for improvement in the job during the period of report indicating how I may improve and what I may do to improve my performance during the periods of the reports.
9) Explanations, amplifications ( para 19, Dos, annex-3) in respect of vague/cryptic adverse remarks or contradictory remarks.
10) Feedback, efforts at reform, advice and guidance, in respect of the adverse remarks, rendered to the reported officer by the superior officers as per instructions (para 2, Donts, annex-3: paras 3.3, 8.1, 8.4 of annex-1) since ACR is not a fault finding but a developmental process. The Respondents clarified that:
1) No. The communication under reference has been issued based on the directive of the CAT, Principal Bench in the OA No. 3163/09.
2) Copies of the relevant CRs containing the overall gradings which were below the benchmark grading of Very Good have been communicated.
3& 4) What has been communicated are not the adverse remarks but copies of the below benchmark ACR/MTCRs in deference to the CAT (PB) directive in OA No. 3163/09. Therefore, the issues raised by you regarding communication of adverse remarks within one month, etc. are not relevant in this context.
5& 6) The queries are based on wrong assumption that the competent authority to deal with the representation is to be determined with reference to the parameters listed out in the queries. The representation, if made, will be considered by the competent authority, as per the existing instructions and keeping in view the directives of the CAT (Principal Bench).
The points raised at Sl. Nos. 7 to 10 under (B) presume communication of adverse remarks. However, the position is that only those ACR/MTCRs were communicated which contain below bench mark gradings as per the order dated 20.01.2010, of the Honble CAT (PB),New Delhi in OA No. 3163/2009.
It is also pertinent to mention here, that as per the CAT (PB) directives you were required to submit your representation within a month and that instead of complying with the CAT (PB) directives you have submitted a list of queries, answers to which are self-evident. Thereafter, Applicant made the representation dated 19.04.2010, against the below benchmark grading stating therein that:
(a) the grading 'Good' should not have been taken into consideration by the DPC for considering him for promotion to the higher grade;
(b) the alleged underperformance of the Applicant did not actually exist;
(c) the un-communicated ACRs pertain to the period three years prior to the date of the DPC and hence should have been ignored in terms of the DOP&T's Office Memorandum dated 11.05.1990;
(d) since all the reporting and reviewing officers have retired, the grading cannot be reviewed in their absence;
(e) the grading in the ACRs forwarded to him are unfounded and have no justification;
(f) lapses in recording the adverse entries could not be rectified as the prescribed procedure that was to be followed for making such entries had not been followed;
(g) the adverse entries were not communicated within the prescribed time limit and hence it was not possible to reply to those because it was not possible to recall many facts due to lapse of time;
(h) the communication sent by the Assistant Controller General of Defence Accounts (Administration) is not proper communication of adverse remarks as these have to be communicated by the reviewing officer as per the Office Memorandum number 51/5/72-Estt. (A) dated 20.05.1972;
(i) as per the directions of the Tribunal only the adverse remarks were to be communicated, but instead copies of the entire ACRs have been communicated without indicating which remarks were to be considered adverse;
(j) no admonition or reprimand was given or any advice communicated by the superior officers in respect of any of the remarks and, therefore, this could not be treated to be adverse;
(k) no competent authority is available to consider the representation of the Applicant, who would have the knowledge of the Applicant's performance, qualities, attributes et cetera;
(l) the grading in the ACRs from 2000-01 onwards show consistently very good performance and the 'Good' grading for the short duration of the ACRs are based on extraneous reasons.
Specific representation regarding each period of the communicated ACRs were also made. The points raised have been reproduced below:
(A) CR for the period: 06-12-04 to 31-03-05.
i) There is no disagreement that all targets have been achieved. Also, no specific deficiency has been pointed out. It is a contradiction that below benchmark grading has been given without any shortfall in performance.
ii) The Report is Very Good for 8 months and Good for less than 4 months. Overall grading should be taken as Very Good as it is the grading for the greater part of the entire period of Report.
(B) CR for the period : 01-01-04 to 31-03-04.
iii) Downgrading has been done without any reason. As per OM No. 21011/1/2005-Estt. (A) dtd. 6-01-10 (copy at annex-9) downgrading without giving sufficient reasons is non-est/invalid. Remarks are vague, cryptic and non speaking without amplification or explanation.
(C) CR for the period : 01-04-03 to 31-12-03.
iv) The CR has not been accepted due to retirement of Accepting Authority. The report being incomplete cannot be used. Earlier available complete ACR to be used as per DoPT OM No. 21011/02/98-Estt. (A) dtd. 24.-04-98 (copy at anenx-11) and this Honble Tribunals decisions in N.N.Thakur v/s UoI, OA No. 2017/09 decided on 28-10-09 (copy at annex-12) and Ashok Kumar Aneja v/s Union of India & Ors. (OA No. 24/2007 decided on 20.11.998 ( copy at annex-13).
v) A column by column comparison of ACR for the period 22-04-02 to 31-03-03 with his CR has been tabulated (at anenx-14). It is clearly seen that even though performance and remarks in the later ACR are superior it has been wrongly down graded to Good. The representation was rejected by the impugned order dated 28.09.2010.
3. The Applicant, who appeared in person, mainly pressed the following arguments. First, no reasons were given by the reviewing authority for reducing the grading 'Very Good' given by the reporting authority to 'Good' in the ACR for the period from 01.01.2004 to 31.03.2004. The reviewing authority could not have downgraded the grading given by the reporting authority by vague and unintelligible remarks. The second plank of his argument is that he has been discriminated against vis-a-vis another officer, whose representation against below benchmark remarks was also considered, in as much as the manner of consideration of the representations of the Applicant and the other officer was based on different parameters. An order dated 15.12.2010 has been placed on record, in which the representation of one Shri A K Jena, IDAS, against below benchmark grading for the years 2004-05 and 2005-06 was considered. The contention of the Applicant is that in case of Shri A K Jena the competent authority called for the remarks of the reporting officer, whereas in his case remarks of the reporting officer was not called, although one of the reporting officers was still in service. It has also been pointed out that the competent authority has also not taken in account the fact that there was no evidence on record to show that the officer reported upon was ever issued any advisory or counselled by any of the officers in his reporting chain. In Applicant's case there has been no consideration on that account, although he had highlighted this point in his representation and the Respondents in reply to his application under the Right to Information Act, 2005 have conceded (Annex 3) that no advisory was issued to him before recording below benchmark grading. Third, it has been pointed out that while in the case of Shri A S Jena the competent authority has considered the self appraisal report, in the case of the Applicant there has not been any such consideration. The Applicant would contend that different yardsticks have been used by the Respondents to decide the representations of the Applicant and Shri A S Jena, which is discriminatory.
4. Before we consider the arguments of the Applicant, we shall advert to the impugned order dated 28.09.2010 by which his representation has been rejected. The points raised by the Applicant about the need to ignore the below benchmark grading, which were three years prior to the DPC in the light of the OM dated 11.05.1990; about it not being feasible to review the ACRs because of the fact that both the reporting and reviewing officers had retired; about prescribed procedure not having been followed by the authorities in communicating the below benchmark grading; about it being difficult to represent effectively against the adverse remarks because of their being communicated after considerable delay; about the communication of the adverse remarks by the Assistant CGDA not being the proper communication as the same should have been done by the reviewing authority; about not indicating, which part of the ACRs was considered adverse; and about it being impractical for the competent authority to review the ACRs in the absence of reporting, reviewing and accepting authority not being available had been dealt with by the competent authority by noting that the ACRs have been considered on the directions of the Tribunal and that the below benchmark grading was not considered adverse at the time these were recorded, in view of which the procedure required for communicating the adverse remarks could not be followed in these cases later on. The contention of the Applicant that the ACRs could not be reviewed because of non-availability of the reporting, reviewing and accepting authorities would also not be considered by the competent authority because he had not taken up these arguments before the Tribunal and, if he had done so, the Tribunal had not given any directions in that regard. Thereafter, the specific points raised by him have been dealt with by the competent authority. The Applicant's point that the ACR for the period from 01.04.2003 to 31.12.2003 was not accepted by the accepting authority and hence the ACR was incomplete, has been dealt with on the ground that the ACR could not be accepted because the accepting authority had demitted office. It has also been stated that the ACR would not become incomplete merely because it was not accepted by the accepting authority. The argument of the Applicant that column by column comparison of the ACR for the period 01.04.2003 to 31.12.2003 with the ACR for the period 22.04.2002 to 31.03.2003 would clearly indicate that although the remarks in the later ACR were superior to the remarks in the ACR of the earlier period, the grading in the later ACR is 'Good' and in the former it was 'Very Good', has been met thus:
The argument is untenable, in the light of the fact that the reporting officer (who is still in service), who had graded him as good, has commented that the overall grading of Good was most probably based on the achievement of the assigned targets, though he also goes on to add that had it been known at the time of writing of the report that benchmark for promotion would be pegged at Very Good, it is possible that a higher grading might have been given based on the same performance. It is, therefore, evident that the reporting officer did not intend to give the grading of Very Good when he wrote the report. Comparison with the grading in the earlier report is, therefore, irrelevant The arguments of the Applicant that downgrading by the reviewing authority in the ACR for the period 01.01.2004 to 31.03.2004 is not justified because no reasons for that have been given has also been repelled by the competent authority by observing that:
his contention that the report was downgraded without assigning any reason and that this makes the report non-est/invalid in terms of DoPT OM dated 06.01.2010 is not tenable for three reasons. One, because, Shri R.K.Anand has not given any argument or brought out any facts that would warrant review of the grading. Two, because, the OM cited by him contains instructions for the DPC to treat such reports as non-est/invalid in which the overall grading has been upgraded/downgraded without giving sufficient reasons. This cannot be the basis for reviewing his grading at the present stage. Three, the reviewing officer has clearly given reasons for reassessing Shri R.K.Anand as Good by giving reasons at Sr No.4 in part V of the Report and the Accepting Officer also graded him as Good. Therefore, this report cannot be reviewed as non-est or invalid. Yet another argument of the Applicant in respect of the ACR for the period 06.12.2004 to 31.03.2005 that below benchmark grading had been given without there being any shortfall in performance and that the report for eight months of the same year was 'Very Good' and 'Good' for four months has been met by stat ing that the grading was based on the overall performance of the Applicant and that overall grading for the year would be decided by the DPC and, in any case, would not be any ground for upgrading that grading.
5. We have given considerable thought to the arguments of the Applicant and have gone through the documents placed on record by him.
6. The contention of the Applicant that it has not been pointed out as to what are the adverse remarks against him, while communicating the remarks, the Respondents have merely communicated the whole ACR, has no force because it is clear that the below benchmark remarks are the adverse remarks, in view of the law laid down by the Honourable Supreme Court in Dev Dutt V. Union of India and Others, 2008 (7) SCALE 403. This is the basis of the discussion in the judgement in OA number 3163/2009 filed by the Applicant earlier. We do not find anything wrong in the Respondents forwarding the entire ACR to the Applicant instead of selected portions. The argument that the adverse entries have not been communicated properly, as these are required to be communicated by the reviewing officer has no force because the reviewing officer has retired and it will not be possible for him now to communicate the adverse grading. When the grading was recorded it was not considered adverse and it has become adverse only because of the judgement of the Supreme Court in Dev Dutts case. It is true that the instructions provide that the reporting authority should give to the officer reported upon necessary advice, guidance and assistance to correct his faults and deficiencies. This has been provided in order to make the Government servant aware of his defects so that he could try to improve. These instructions are basically in regard to adverse grading, which at the relevant time, when the Applicant's ACRs were recorded, were 'Below Average'. The grading 'Good' was not considered adverse at the time it was recorded. It is true that the competent authority has considered this aspect in deciding the representations of Shri A S Jena, whereas this aspect has not been considered in case of the Applicant, yet the impugned order cannot be set aside merely on this ground, especially because the ACRs and representation of Shri A S Jena are not on record, without which it is not possible to make comparison in both the cases. Each case has to be dealt with on its own merits. The same applies to the consideration of the self appraisal in case of Shri A S Jena and not in case of the Applicant.
7. We have also perused the ACRs, grading in which have been challenged. In the ACR for the period from 01.04.2003 to 31.12.2003, both the reporting as well as the reviewing authority have graded him as 'Good'. The reporting officer has found the quality of his output to be only satisfactory. His knowledge of the sphere of his work has been categorised as good. He was found to be 'sufficiently dedicated' to his work. His decision making ability was considered to be good. His communication skills have been graded as very good. In the assessment of the supervisory ability, two parameters have been assessed to be good and the rest two as very good. On the basis of all these parameters, the overall grading 'Good' cannot be considered to be wrong. The reviewing officer has recorded the following comments in the column regarding 'specific comments':
"the officer's performance can be graded no higher than good. His capacity for carrying out assigned task is average at best notwithstanding his innate intelligence and capability."
Since the accepting authority had demitted office on superannuation, remarks of the said authority were not recorded. For the later period of the year 2003-04 (01.01.04-31.03.04), the reporting authority has graded the Applicant as 'Very Good', but the reviewing authority has not agreed with the reporting authority, as recorded in column three regarding agreement with the reporting authority, in which it has been recorded that "I am not in agreement." In the column of general remarks, the following has been recorded:
"the reporting officer has not been able to quantify the kind of performance which should warrant a very good assessment. The officer, though very sharp and intelligent, can at best be graded as good in relation to his performance on the specific job."
The accepting authority, agreeing with the reviewing authority, has graded him as 'Good.' We are not in agreement with the contention of the Applicant that the reviewing authority has not given sufficient reasons or the reasons given by him are vague. The reasons are specific as the reviewing authority has not found his performance to be of the standard to be graded as 'Very Good'. The accepting authority has agreed with the reviewing authority. In the ACR for the period from 06.12.2004 to 31.03.2005 also the reporting authority has graded the quality of output as good and his knowledge of sphere of work as fair. His management qualities have also been graded as good. His communication skills have been graded as very good. His inter-personal relations have also been graded as very good. On the basis of all these parameters, the reporting authority has justifiably graded him over all as 'Good.' The reviewing authority has agreed with the aforesaid grading by recording that:
"A capable officer, somehow managed to perform below his capabilities. His performance can be rated as 'Good'."
Agreeing with the reviewing authority, the accepting authority has also graded him as 'Good'. In the ACR for the period 2002-03, the reporting authority has graded the quality of output as satisfactory and decision making ability as good. Inter-personal relations have also been graded as good. Out of four parameters for judging the supervisory ability, he has been graded as good in three of those. His inability to coordinate has also been graded as `good only. However, on these parameters his overall grading has been given as 'Good'. The reviewing authority has not given any grading, but has agreed with the reporting authority. The accepting authority has accepted the ACR. In any case it is clear that the quality of the Applicant's work in the year 2003-03, as judged from remarks regarding various parameters, has not been very different from the quality of his work in the succeeding period and, therefore, the reporting authority could not have noticed any fall in the standard of the Applicant's work to give any advice to him in this regard. We have also seen the report of the Applicant for the period from 01.04.2004 to 22.11.2004, in which he has been graded as 'Very good' by the reporting, reviewing and accepting authorities. However, for the later part of the year from 06.12.2004 to 31.03.2005, he has been graded as 'Good' by the reporting and reviewing authority. The reporting, reviewing and accepting authorities during the two periods are different. The Applicant has held different jobs during the two periods. Therefore, the argument that his performance, which was very good during the eight months of the year could not have become good during the last four months is not strictly logical. We agree with the competent authority that this would not be a reason for upgrading the remarks of the later period to very good.
8. The Applicants argument that the DPC should have ignored the relevant ACR being three years prior to the date of meeting of the DPC on the basis of the Office Memorandum of the Department of Personnel and Training (DOP&T) dated 11.05.1990 cannot be accepted as the Honourable Delhi High Court has held in Writ Petition (C) No. 6013/2010, Union of India Vs. Krishna Mohan Dixit, that the above said OM would not apply to such adverse grading. The grading can also not be ignored on the ground that the reporting, reviewing and accepting authorities have retired. The directions given in the OA number 3163/2009 are only to communicate the below benchmark grading and consider those and in case these are upgraded to the higher grading, hold a review DPC. The review application of the Applicant in the above said OA has been dismissed. The judgement in the said OA has been upheld by the Honourable Delhi High Court. It has now become final. Therefore, because the below benchmark grading in the relevant ACRs have not been upgraded to the level of the prescribed benchmark for promotion, we cannot now give such directions to hold a meeting of review DPC by ignoring these remarks.
9. On the basis of above discussion we find the OA to have no merit. The OA is dismissed at the threshold.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman /dkm/