Central Administrative Tribunal - Delhi
Mrs. M.Sailo vs Union Of India Through The Secretary on 6 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3816/2011
MA 672/2012
New Delhi this the 6th day of August, 2012
Honble Shailendra Pandey, Member (A)
Honble Mr. A.K.Bhardwaj, Member (J)
Mrs. M.Sailo, I.R.S.
Director General of Income-Tax,
(Intelligence & Criminal Investigation),
Ground Floor, AA Centre, E02,
Jhandewalan Extension, New Delhi
r/o D-1/16, Rabindra Nagar,
New Delhi-110003. Applicant
(By Advocate Ms. Jyoti Singh, Sr.counsel with Shri Yogesh Sharma
and Shri Amandeep Joshi )
VERSUS
1. Union of India through the Secretary,
Ministry of Finance, Department of Revenue,
Government of India, New Delhi.
2. The Secretary,
Ministry of Finance, Department of Revenue,
Government of India,
New Delhi. Respondents
(By Advocate Shri Rajesh Katyal )
O R D E R
Honble Mr. A.K.Bhardwaj, Member (J):
The applicant had originally filed the present Original Application questioning her Annual Confidential Reports (ACR) for the years 2000-01 and 2001-02 and had made a prayer for issuance of a direction to the respondents to treat the grading in the ACR for the period 2001-02 as outstanding for all purposes with consequential benefits. During the pendency of the OA, the respondents had communicated the view taken by the Secretary (Revenue) on her representation dated 29.04.2011 to the applicant. In order to question the decision of the representational authority, the applicant filed MA No. 672/2012 for amendment of the OA 3816/2011 Original Application seeking to make the following prayers in addition to the prayer already made.
(iv).That the Honble Tribunal may graciously be pleased to pass an order for directing the Selection Committee to review the minutes of the meeting held for empanelment of Members, CBDT for the year 2011-12 to consider the eligibility of the applicant in view of the relief sought above and in view of the fact that the Selection Committee did not follow Govt. of Indias stated policy and Empanelment Guidelines (available in the public domain) for officials belonging to the ST Community of North East Region of India at the time of empanelment for the highest post in the Govt. of India. Vide order dated 28.03.2012 passed in MA No.672/2012 the aforementioned amendment in the prayer clause of the OA was allowed. On 9.04.2012, learned counsel appearing for the respondents raised the contention that in view of clause (iv) being added in Para 8 of the relief clause, the OA could be heard only by a Division Bench and not by a single Member Bench. He also questioned the maintainability of the OA on the ground that the persons who were empanelled by the Selection Committee for appointment as Member, CBDT had not been impleaded as parties in the OA. In view of such objection being raised on behalf of the respondents, learned counsel appearing for the applicant preferred not to press the relief in clause (iv) of Para 8 of amended OA. For ready reference, order dated 9.04.2012 is extracted below:-
The learned counsel for the respondents at the very outset pointed out that relief in clause (iv) of Para 8 of the relief clause of the amended OA, pertaining to the selection process followed by the selection committee, does not fall within the jurisdiction of the Single Bench and the matter has to be referred to appropriate Division Bench for consideration. Furthermore, the applicant has also impugned the validity of the appointments of the persons who have already been selected for which purpose they are required to be necessarily impleaded but they are not presently impleaded in the present case. This issue cannot be decided on their back.
2. The applicants counsel responded to by stating that the applicants principal relief pertains to grievance of her ACRs and once her claim is upheld then the review of the selection committee will be necessary by way of necessary OA 3816/2011 consequences. In any case, he submits that in view of the objection raised by the respondents counsel, he would not prefer to press the relief in clause (iv) of Para 8 of the Relief Clause of the amended OA and would be at liberty to initiate appropriate proceedings with regard to other relief in the matter.
3. The matter is now taken up for hearing.
4. The respondents counsel further submits that he does not have the records of the case. The department has been under the impression that the applicant will be filling rejoinder though the case is shown to have been listed under ready for hearing matters. He is further given to understand that the respondents are engaging senior counsel in the matter and for that reason, he has not been adequately briefed by the respondents officials and therefore, he seeks a short adjournment for the purpose with a view to bring necessary instructions from the respondents. The applicants counsel does not have any objection to this request.
5. The applicant has filed written statement with an advance copy to the opposite party. The respondents counsel also seeks liberty to file their written statement if consider necessary. List on 11.4.2012. Again on 11.04.2012, Mr.R.Venkataramani, learned senior counsel raised the plea that irrespective of the prayer contained in clause 8 (iv) of the OA, necessary consequence of the relief sought in clause 8 (i to iii) could be the same, i.e., reconsideration of the applicant by the Selection Committee for empanelment as Member, CBDT resulting in review of the minutes of the meeting held for empanelment of Member, CBDT for the year 2011-12. Raising this plea, the counsel pressed for listing of the present OA before a Division Bench. The learned counsel appearing for the applicant did not object to listing of the OA before a Division Bench but requested for liberty to press the prayer made in Para 8 (iv) of the OA. Accepting the pleas raised by counsel for the parties, this Tribunal passed detailed order dated 11.04.2012 as follows:-
On the last date of hearing, i.e., on 9.4.2012, applicants counsel agreed not to press relief in clause 8 (iv) of the amended OA in view of the objection raised by the respondents that the relief in this clause would fall within the jurisdiction of the Division Bench and not of a Single Bench.OA 3816/2011
Today when the matter came up for hearing, the respondents counsel states that although the applicant has agreed not to press for the said relief yet in effect the relief would be the same by way of consequences in case the applicant succeeds in his Application and, therefore, on instructions from the department, respondents counsel requested that this mater be referred to an appropriate Division Bench. The applicants counsel does not have any objection to this. However, he stated that since the matter is being referred to the Division Bench at the behest of the respondents, it may not be necessary for him now to withdraw the relief claimed in para 8 (iv) of the amended OA. He, therefore, requested that earlier order dated 9.4.2012 in this regard may be recalled and the amended OA be restored to its original position. Subject to this, he does not have any objection for referring the matter to an appropriate Division Bench. This request of the applicants counsel is allowed and the amended OA is restored to its original position. Both the parties requested that the matter may be so listed before the appropriate Division Bench on 17.04.2012.
2. Section 5 (6) of the Administrative Tribunals Act, 1985, reads as follows:-
(6) Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as 13 [a Bench] consisting of a single Member and exercise the jurisdiction, power and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify:
Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of 1( two Members), the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit.
3. In Dr. Mahabal Ram Vs. Indian Council of Agricultural Research and others, (1994) 27 ATC 97 at pages 99-100, the Honble Supreme Court observed as follows:-
we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member-whether judicial or administrative-in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact the proviso itself indicates Parliaments concern to safeguard the interest of claimants by casting an OA 3816/2011 obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should go to a bench of two Members. The Member should ordinarily allow the matter to go to a bench of two Members when so requested. This would sufficiently protect the interest of claimants and even of the administrative system whose litigations may be before the Single Member for disposal.
4. In view of the aforesaid premises, let this matter be placed before the Honble Chairman for his consideration in terms of the Proviso to Section 5 (6) referred to above for placing the matter before the appropriate Division Bench on 17.4.2012. The case accordingly was listed before Division Benches from 19.04.2012 onwards. On 30.7.2012, when the learned counsel appearing for respondents made his final submissions, he began by relying upon the judgment of Honble Supreme Court in State of Uttaranchal and Another Vs. Madan Mohan Joshi and Ors ( 2008) 6 SCC 797) and again submitted that without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity, this Tribunal should not consider the prayer made in clause 8 (iv) of the OA, Ms. Jyoti Singh, learned senior counsel appearing for applicant, on instructions from Mr. Yogesh Sharma, assisting counsel, submitted that she would prefer not to press the prayer made in clause 8 (iv) anymore and confine her relief to the prayer contained in the remaining clauses of Para 8. In the circumstances, we are examining the prayer made in Para 8 ( i, ii, iii and v), leaving it open to applicant to seek the relief contained in clause (iv) of Para 8 of the OA separately, if so advised.
2. As can be derived from the amended OA, the applicant, a 1975 batch I.R.S. officer, was due for consideration for empanelment as Member, CBDT by the concerned Committee at its meeting on OA 3816/2011 7/8.06.2011. Vide communication dated 31.12.2010 (Annexure R-III) to counter reply, Director (Hqrs.) Government of India, Ministry of Finance (Department of Revenue), with the approval of the competent authority communicated to the applicant copies of her ACRs/APARs for the past 11 years ( available in her ACR dossier) giving her opportunity to make representations, if any, against the gradings or comments in the CRs prior to the year 2008-09 or in the APAR for 2009-10 to the Secretary, Department of Revenue within 15 days from the date of issue of said letter, i.e., latest by 17.01.2011. For easy reference, letter dated 31.12.2010 is extracted hereinbelow:-
I am directed to say that it has been decided to give an opportunity to Chief Commissioner of Income Tax, who might be eligible for appointment by selection to various posts outside the cadre posts but under the Government of India (including Member CBDT) to represent against ACR gradings, if they desire to do so.
2. As per the existing guidelines/procedure to most selections, the last ten recorded and available ACRs of each candidate are to be considered by the Selection Committee. Therefore, with the approval of the competent authority, it has been decided to communicate to the officers of the grade of the Chief Commissioners/equivalent who might be eligible for such selections, the ACRs likely to be considered by various Selection Committees, to enable them to make representation, if any, against any of the gradings or adverse comments in these ACRs. Accordingly, copies of your ACRs/APARs for the last 11 (eleven) years, which are available in your ACR dossier are enclosed. You may submit your representation, if any, against the gradings or comments in the ACRs prior to the year 2008-09 or in the APAR for 2009-10 ( for the period 1.9.2009 24.1.2009) to the Secretary, Department of Revenue within 15 days from the date of issue of this letter i.e. last by 17.1.2011.
3. If you have already made representation against any of the ACR/APAR gradings or comments, fresh representation in respect of such ACR/APAR grading/comments should not be made again. You may, in that case, indicate the details of such representation and decision, if any, by the competent authority thereon. You must also clearly specify in your representation that you have not made any other representation to any other authority for a grading against which you are representing now.
4. In case the general remarks by anyone in any of the attached ACRs is not specific (i.e. Outstanding, Very Good, Good, Average or Poor), the competent authority in the Department of Revenue will take a decision to interpret the ACR and classify it into any one of the specific gradings, You may also like to make representations in this regard to facilitate such interpretation and classification by the competent authority.OA 3816/2011
5. If no representation is received by the above date, it will be presumed that you have no representation to make in this regard. As can be seen from Annexure R-IV to the counter reply, the applicant could not avail the opportunity provided in the aforementioned letter dated 31.12.2010 for making representation against the grading/comments in relevant year ACRs/APAR within the stipulated time limit and made a representations subsequently. In any case the representation dated 29.04.2011 preferred by the applicant against the remarks and gradings in her ACR for the various years was considered and decided by the Revenue Secretary. The applicant has filed the present OA questioning the said decision taken in her representation and also the grading in ACRs for the year 2000-01 and 2001-02. To espouse the relief so prayed, Ms. Jyoti Singh, learned senior counsel appearing for the applicant submitted that:-
(i) in writing the ACRs of the applicant, the reporting as well as the reviewing officer ought to have followed the instructions/guidelines laid down for the purpose.
(ii) the ACRs of the applicant for the year 2000-01 and 2001-02 recorded by the concerned authorities are in complete disregard of the guidelines laid down for their guidance.
(iii) while Mr. Madan Mohan Joshi, CCIT, Delhi (Directorate General of Income Tax (International Tax at the time of writing ACR) had supervised her work only for the period from 16.10.2000 to 31st March, 2001, he gave his remarks in various columns of the ACR written for the period 1.4.2000 to 31.03.2001
(iv) in the said ACR for the period 1.4.2000 to 31.03.2001, the reporting officer failed to give any general remarks and overall assessment against column No.10.OA 3816/2011
(v) there is no basis for the remark good given by reviewing officer in the ACR for the period 1.4.2000 to 31.3.2001.
(vi) once in the ACR for the period 2001-02 the reporting officer had graded the applicant above Very Good, reviewing officer ought to have considered the same either as Outstanding or above Very good and could not have down graded the same as Good.
(vii) no credence had been given to self appraisal of the applicant contained in the ACR for the period 2001-02.
3. On the other hand, Mr.Rajesh Katyal, learned counsel appearing for the respondents contended:-
(i) since Mr. M.M.Joshi, CCIT had supervised the work of the applicant for a period of more than 90 days, he was justified in initiating her ACR for the period 2000-01.
(ii) the Secretary (Revenue), i.e. representational authority, had directed the ACR for the year 2000-01 to be treated as for five months, i.e., for the period during which Mr. M.M.Joshi had seen her performance, and the mere fact that the said ACR was shown to be written for a longer period (beyond five months) would not render the same as non est.
(iii) since the weighted average system had already been dispensed with, the period of the ACR recorded by Mr.M.M.Joshi beyond the period during which he had supervised the work of applicant would not make any material difference.
(iv). out of seven attributes in the ACR of the applicant for the year 2001-02 the remarks against six are Very Good while against one it is Outstanding, thus the rating given by the reporting officer does not automatically translate into Outstanding.OA 3816/2011
(v) irrespective of the grading given by the reporting/reviewing officer in ACR of an employee, the Selection Committee could give its own grading to the concerned employee.
4. In the backdrop of the prayer made in the Original Application and keeping in view the material on record and rival contentions advanced by learned counsel appearing for both parties, the following propositions arise to be determined by us:
(i) Whether the ACRs of the applicant for the year 2000-01 and 2001-02 have been written in accordance with the guidelines laid down on the subject.
(ii) Whether an irregularity and deficiency caused in initiation/ reporting of an ACR can be covered by the authority deciding the representation, by giving his own interpretation to the contents of ACR.
(iii) Whether the Reviewing Officer can change the grading of an officer recorded in ACR by Reporting authority, without recording any reasons for the same.
5. Confidential reports are the basic inputs on the basis of which assessment is to be made by each DPC for evaluation while assessing the fitness of a person for promotion/appointment. As per procedure laid down in the guidelines relevant to the issue, whenever there is a change in the reporting officer, it is the duty of the administration or CR Section/Cell to get the report of the concerned officer/employee from the earlier reporting officer within 3 weeks of such change, if no self-appraisal by the officer reported upon is required and within 5 weeks of such change if the self-appraisal by the officer reported upon is required to be given. The reports so written by the earlier reporting officer may be OA 3816/2011 got reviewed immediately (without waiting till the end of the calendar year or financial year, as the case may be) within two weeks after the receipt of the report from the earlier reporting officer. The successor reporting officer writing the report upto the end of the year should adhere to the time-limit specified in the attached statement, provided he has the requisite experience of 3 months or more of the work and conduct of the officer reported upon.
6. In order to minimize the operation of the subjective human element and of conscious or unconscious bias, the confidential report of every Govt.servant should contain the assessment of more than one officer except in cases where there is only one supervisory level above the officer reported upon. The confidential report should be written by the immediate superior and should be submitted by the reporting officer to his own superior. While it might be difficult for the higher officer to get to know a large number of employees two grades below him, his overall assessment of the character, performance and ability of the reported officer is vitally necessary. The judgment of the immediate superior even though completely fair in its intent might sometimes be too narrow and subjective to do justice to the officer reported upon. The officer superior to the reporting officer should, therefore, consider it his duty to personally know and from his own judgment of the work and conduct of the officer reported upon. He should accordingly exercise positive and independent judgment on the remarks of the reporting officer under the various detailed headings in the form of the report as well as on the general assessment and express clearly his agreement or disagreement with those remarks. The reviewing officer is free to make his remarks on points not even mentioned by the reporting officer. Such additional OA 3816/2011 remarks, in fact, are necessary where the report is too brief, vague or cryptic (C.S.O.M.No. 51/5/72-Ests. (A) dated the 20th May, 1972, para 7).
7. Where the Reviewing Officer is not sufficiently familiar with the work of the Government servant reported upon, so as to be able to arrive at a proper and independent judgment of his own, it should be his responsibility to verify the correctness of the remarks of the Reporting Officer after making such enquiries as he may consider necessary. Where necessary, he should also give a hearing to the Government servant reported upon before recording his remarks[D.P.& A.R., O.M.No.51/3/74- Estt. (A), dated the 22nd May, 1975].
8. While normally there should be only one report covering the year of report, there can be situations in which it becomes necessary to write more than one report during a year. There is no objection to two or more independent reports being written for the same year by different reporting officers in the event of a change in the reporting officer during the course of a year provided that no report should be written unless a reporting officer has at least three months experience to base his report. In such cases, each report should indicate precisely the period for which it relates and the reports for the earlier part or parts of the year should be written at the time of transfer or immediately thereafter and not deferred till the end of the year. The responsibility for obtaining confidential reports in such cases should be that of the Head of the Department of the Office [C.S.O.M.No.51/5/72-Exts.(A), dated the 20th May, 1972].
OA 3816/20119. By way of amplification or partial modification of earlier instructions, DP&AR OM No. 51/3/74-Est.(A), dated the 22nd May, 1975 circulated to the Ministries/Departments the following guidelines:
(i) Reporting, reviewing and endorsing officers should have been acquainted with the work of the official reported upon for at least three months during the period covered by the Confidential Report.
(ii) With a view to enable the reviewing authority to discharge his responsibility in ensuring the objectivity of the Confidential Reports, it has been decided that where he is not sufficiently familiar with the work of the officer reported upon so as to be able to arrive at a proper and independent judgment of his own, it should be his responsibility to verify the correctness of the remarks of the reporting officer after making such enquiries as he may consider necessary and he should also give a hearing to the person reported upon before recording his remarks [DP&AR O.M.No.51/3/74-Est.(A), dated 22nd May, 1975].
10. In terms of the instructions for writing the ACR contained in the ACR format itself, i.e. normally at page 5 of said format, the columns in the ACR should be filled with due care and attention and after devoting adequate time, as any attempt to fill the report in a casual or superficial manner can be easily discernible to the higher authority. As is provided at serial No. 5 of the said instructions, every answer against various columns should be given in narrative form and the use of omnibus expression like Outstanding, Very Good,, Good, Average and Below Average while giving comments against any of the attributes should be avoided. For easy reference relevant excerpt of the said instructions are extracted hereinbelow:-
OA 3816/20113. The columns should be filled with due care and attention and after devoting-adequate time. Any attempt to fill the report in a casual or superficial manner will be easily discernible to the higher authorities.
5. Every answer shall be given in a narrative form. The space provided indicates the desired length of the answer. Words and phrases should be chosen carefully and should accurately reflect the intention of the Authority recording the answer. Please use unambiguous and simple language. Please do not use omnibus expressions like Outstanding Very Good, Good, Average, below average, while giving your comments against any of the attributes. In the case before us, as can be seen from the ACRs of the applicant for the relevant period i.e. 2000-01 and 2001-02, while giving comments against attributes like attitude to work, ability for decision making, initiative, leadership skills, communication skills, inter-personal skills and group dynamics, skills in planning, control and coordination, the Reporting Officer has totally disregarded the above clear instructions and has given omnibus expression like Outstanding, Very Good, Good, Average, Below Average, and has thus violated the aforementioned instructions Nos. 3 and 5. For easy reference, the relevant ACRs of the applicant placed on record as annexure to the OA are extracted hereinbelow-
Confidential report year/period 1.4.2000 to 31.3.2001 (November 2000 to 31st March, 2001) Name of Officer Malsoni Sailo Code No. 75050 Date of Birth 1.3.1953 Post held Addl.DIT (Recy) New Delhi 1.4.2000 to 15.10.2000 CIT (OSD), New Delhi 16.10.2000 to 31.3.2001
1. Please state whether the annual Return on immovable property for 23.2.2000 the preceding calendar year was filed within the prescribed date, i.e. 31st January of the year following the calendar year. If not, the date of filing the return should be given. OA 3816/2011
2.Attitude of work Good
3.Ability for decision making Good
4. Initiative Good
5. Leadership skills Good
6. Communication skills Very Good
7. Inter-personal skills and group dynamic. Good
8. Skills in planning, control and Coordination Good
9. Integrity Very good to the best of my Knowledge.
10. General remarks and over all Assessment.
Sd/-
Date 23.8.2001 (Madan Mohan Joshi) CCIT, Delhi Now Director General of Income Tax International Tax.
Remarks of the Reviewing Officer Good Sd/-
( T.K.DAS) Member Income Tax Settlement Commissioner Additional Bench, Calcutta. Confidential report year/period 2001 to 2002 Name of Officer Malsoni Sailo Code No. 75050 Date of Birth 1.3.1953 Post held CIT (A)-X, New Delhi
1. Please state whether the annual Return on immovable property for Filed on 3.5.2002 the preceding calendar year was filed within the prescribed date, i.e. 31st January of the year following the calendar year. If not, the date of filing the return should be given.
2.Attitude of work Very Good
3.Ability for decision making Very Good
4. Initiative Very Good
5. Leadership skills Very Good
6. Communication skills Very Good OA 3816/2011
7. Inter-personal skills and group dynamic. Very Good
8. Skills in planning, control and Coordination Outstanding. A very serious and dedicated worker who has performed her work in a planned manner through out the year.
9. Integrity To the best of my knowledge she is honest.
General remarks and over all Quality of the appellate orders Assessment are material very good. Facts of each ground of appeal have been properly marshalled and relevant law applied. In term of quality of the appellate order as also the output in overall performance of Mrs. Sailo is rated above Very Good.
Sd/-
Date 25.6.2002 (G.B.Parida) CCIT-III, CR Building, New Delhi Remarks of the Reviewing Officer Very Good Sd/-
( C.M.Betgiri) Member CBDT, Ministry of Finance (Department of Revenue) In S.Ramachandra Raju V.State of Orissa reported in JT 1994 (5) SC 459, Honble Supreme Court ruled that the career prospects of a subordinate officer/employee largely depend upon the work and character assessment by the reporting officer, thus the latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the concerned officer/employee during the relevant period and the above objectives, if not strictly adhered to in making an honest assessment, the prospects and career of OA 3816/2011 the subordinate officer are put to great jeopardy. The reporting officer is bound to lose his credibility in the eyes of his subordinates and fail to command respect and work from them. In Bishwanath Prasad Singh etc. v. State of Bihar & Ors reported in JT 2001 (1) SC 161), it has been held that an annual entry is not an instrument to be wielded like a teachers cane or to be cracked like a whip and such entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of superior. The entry must reflect the result of an objective assessment coupled with an effort of guiding the officer reported upon to secure an improvement in his performance where he suited; to admonish him with the object of removing in future. In Dinesh Kumar Sandila Vs. Union of India & Ors ( 2002 (2)ATJ 124) following the aforementioned decisions, Honble Supreme Court ruled that while writing the ACR, strict compliance of the guidelines are necessary. Relevant excerpts of the said judgment read as under:-
It is not necessary for us to consider as to whether the said provision is mandatory in nature or not, but there cannot be any doubt even in a case where a discretion is conferred upon an authority, which is coupled with duty, normally the same would be construed as imperative. The said guidelines clearly provide that not only an enquiry is required to be made but also a hearing to the person is required to be given.
Such a procedure, as indicated hereinabove before, has been evolved for the purpose of ensuring the objectivity of ACRs. It may make or mar a persons career. The petitioner was under a cloud during the relevant period. When the Reviewing Officer do not have sufficient materials and/or had no occasion to know the concerned person or oversee his work for sufficient period, which should not be less than 3 months, he was required to follow the procedure as laid down in para 4 (ii) of the Office Memorandum dated 22.05.1975.OA 3816/2011
In S. Ramachandra Raju v.State of Orissa reported in JT 1994 (5) SC 459, the Apex Court has held that:
(11. When he was a responsible teacher and he had cordial relations with the students' community, and was taking pains to impart lessons to the students would it be believable that he avoids to take classes and drops down "if not watched"? When anterior to or subsequent to 1987-88 he was a man of ability and of integrity, the same would become below average only for the academic year 1987-88 without discernible reasons. It would speak volumes on the objectivity of assessment by the reporting officer i.e. the Principal. This case would establish as a stark reality that writing confidential reports bears onerous responsibility on the reporting officer to eschew his subjectivity and personal prejudices or proclivity or predilections and to make objective assessment. It is needless to emphasise that the career prospect of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the concerned officer/employee during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy. The reporting officer is bound to lose his credibility in the eyes of his subordinates and fail to command respect and work from them. The constitutional and statutory safeguards given to the Government employees largely became responsible to display callousness and disregard of the discharge of their duties and make it impossible to the superior or controlling officers to extract legitimate work from them. The writing of the confidentials is contributing to make the subordinates work at least to some extent. Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate employee/ officer should dedicate to do hard work and duty; assiduity in the discharge of the duty, honestly with integrity in performance thereof which alone would earn his usefulness in retention of his service. Both would contribute to improve excellence in service.OA 3816/2011
Yet again in V.Kashyap (supra), the Apex Court has observed thus:-
3.The short point which needs determination is whether there was violation of the guidelines, the applicability of which has not been questioned before us. The requirement of the guidelines which is said to have been violated is that in judging the suitability of the persons within the zone of consideration last three years Annual Performance Appraisal Report (APR) would be considered. It is an admitted position that while considering the case of the appellants APRs of the immediately preceding three years had not been taken into consideration; what had instead been done was to take into consideration three years immediately preceding available APRs. According to the High Court this was not permissible, because that would amount to adding the word available in the guidelines, which is not permissible.
4. The three APRs as required by the guidelines could not be considered in the case of the appellants for a cogent and adequate reason. The same was that the Managing Director of Respondent 1 who was to write the APRs for the years in question, namely, 1988-89 and 1989-90, did not do so as the then incumbent ( one Shri R.Prasad) had resigned in February 1990; and despite efforts being made by Respondent 1 to get the concerned APRs written by him after resignation the same did not bear fruit as he did not agree to do so. It is for this reason that these APRs being not available could not be considered while considering and promoting the appellants. The Apex Court further held in the following term:
5. On the aforesaid facts the question is whether the view taken by the High Court can be sustained. The reason given by the High Court is that Shri Prasad being available, the fact that he did not agree to write the APRs could not be used against the writ petitioner permitting Respondent 1 to attach another criterion beyond prescribed guidelines. We are, however, of the view that for the aforesaid disinclination of Shri Prasad to write the two APRs, the reason of which cannot be said to be motivated or untenable, the High Court took an unreasonable view by observing that the non-writing of two APRs was due to lapse and fault of Respondent No.1. It is really not a question of taking advantage of ones own default as observed by the High Court. According to us, in the facts and circumstances of the case the consideration of the APRs of the years 1985-86, 1986-87 and 1987-88, which were the APRs of the three preceding available years, has to be taken as a due compliance of the guidelines in this regard. The ratings as per these three APRs gave a total of 36.68 insofar as Respondent 4 is concerned, whereas the two appellants got 39.84 and 29.68 respectively. In the interview also the two appellants got more marks than Respondent 14 as would appear from the averment made in para 7 of the special leave petition, which fact has not been disputed in the counter-affidavit filed by Respondent 4. OA 3816/2011 Even down grading entries in confidential reports is required to be communicated as has been held by the Apex Court in U.P. Jal Nigam & Ors. V. Prabhat Chandra Jain & Ors, reported in JT 1996 (1) SC 641 in the following words:-
As we view the extreme illustration given by the High Court may reflect and adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. Yet recently in Bishwanath Prasad Singh etc. v.State of Bihar & Ors reported in JT 2001 (1) SC 161, the law has been laid down in the following terms:-
33. A number of decisions dealing with the object and purpose of writing confidential reports and care and caution to be adopted while making entries in the confidential records of government officers have been referred to in the cases of Sarnam Singh (supra, vide para 31, 32) as also in the case of Ishwar Chand Jain (supra). We need not repeat the same. Suffice it to observe that the well-recognised and accepted practice of making annual entries in the confidential records of subordinate officials by superiors has a public policy and purposive requirement. It is one of the recognized and time-tested modes of exercising administrative and disciplinary control by a superior authority over its subordinates. The very power to make such entries as have potential for shaping the future career of a subordinate officer casts an obligation on the High Courts to keep a watch and vigil over the performance of the members of subordinate judiciary. An assessment of quality and quantity of performance and progress of the judicial officers should be an ongoing process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. An annual entry is not an instrument to be wielded like a teachers cane or to be cracked like a whip. The High Court has to act and guide the subordinate officers like a guardian or elder in the OA 3816/2011 judicial family. The entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of ? superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance where need be; to admonish him with the object of removing for future, the shortcoming found; and expressing an appreciation with an idea of toning up and maintaining the immutable qualities by affectionately patting on the back of meritorious and deserving. An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total of the impressions formulated by the inspecting Judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls. In view of the authoritative pronouncement of the Supreme Court, there cannot be any manner of doubt whatsoever that strict compliance of the said guidelines are necessary.
For the reasons aforementioned, there cannot be any doubt that the ACRs for the year 1987-88 and 1989-90 could not have been considered at all by the DPC. It was also necessary for the concerned Reviewing Authority to make such enquiry as was necessary so as to enable them to properly assess the work of the petitioner, where he had no opportunity to oversee the work of the officer for a period of 3 months or more. Keeping in view the aforementioned legal pronouncements of the Honble Apex Court, we have no hesitation in holding that that while writing the aforementioned ACR of the applicant, the reporting officer should have adhered to the guidelines and ought to have given narrative remarks of desired length and should not have used omnibus expression like Outstanding, Very Good, Good etc. Once certain guidelines and instructions are laid down for guidance of the Reporting/Reviewing Officer and such guidelines are annexed to the ACR form itself, the same need to be strictly adhered to in writing of ACRs. In writing the ACRs in OA 3816/2011 question, the Reporting Officer as well as Reviewing Officer have clearly paid no heed to the guidelines and the instructions contained in the ACR format itself, noted hereinabove and there can be no justification for the same.
11. While deciding the representation of the applicant, the Revenue Secretary directed that the ACR of the applicant written for the period 2000-01 and 2001-02 could be treated for the period during which Mr. Madan Mohan Joshi, CCIT had supervised her work. As can be seen from the information furnished to the applicant under the Right to Information Act, the period of various ACRs of the applicant are shown separately. Where the ACR written is for a period less than one year, such period is indicated differently. However, the period of the ACR for the year 2000-01 is not bifurcated and the grading in the said ACR for entire one year is shown as Good. For easy reference, the information given by the respondents to the applicant is extracted hereinbelow:
In continuation of this departments letter of even number dated 28th September, 2011 the ACR grading assigned to you in connection with the Selection for the post of Member, CBDT for F.Y 201-12 is as under:-
Period of ACR ACR/APAR Grading Points assigned as per the methodology adopted 2009-10 5 months 5 months 2 months 9.2 9.2 Not available 9.0 2008-09 5months 7 months Outstanding Outstanding 10.0 2007-08 2006-07 2005-06 2004-05 2003-04 2002-03 2001-02 2000-01 Outstanding Outstanding Very Good Outstanding Very Good Very Good Very Good Good 10.0 10.0 8.0 10.0 8.0 8.0 8.0 5.0 Total Points 86.0 OA 3816/2011 Although in the copy of the ACR placed on record by the applicant the period of ACR for the year 2000-01 is shown as 1.04.2000 to 31.03.2001, in the original ACR the date 1.04.2000 is scored off and over written as November 2000. Besides, against the date 31.03.2001 (the period of ACR is mentioned as November 2000 to 31.03.2001). This might be outcome of the decision of the representational authority. However, it is not material as to what the effect of the period shown in the ACR for the year 2000-01 is but what is relevant is that while writing the said ACR, both the reporting and reviewing officers have shown a casual approach. It is also revealed from the record that when certain ACRs of the applicant are not for complete one year, the same are shown for the period during which her work was supervised by reporting officer, e.g., separate ACRs are written for the period from 1.04.2008 to 31.08.2008 and 1.09.2008 to 31.03.2009. In instructions No. 3 mentioned at page 5 of ACR proforma, it is specifically indicated that the column of ACR is to be filled with due care and attention and after devoting adequate time. As far as the period 1.04.2000 to 31.03.2001 is concerned, the reporting officer did not even care to consider the period during which he supervised the work of the applicant, moreover he failed to fill up all the column of period of ACR. In D.R. Jagiya Vs. Union of India and Ors ( ATJ 2001 (1) 59), the Calcutta Bench of this Tribunal held as under:-
15. Although the respondents have mentioned in their reply to the OA in para 7 that the ACR for the period from October 95 to March 96 was written by Competent Authority. It appears from Annexure A/3 that by a Memo dated 6.1.97 the Deputy Director (Admn.), Ministry of Information and Broadcasting, New Delhi communicated to the applicant the adverse remarks contained in his confidential report for the period from September 95 to March 96. In any event it is submitted by the applicant that for that period one Shri C.P.S. Munda, producer was the Reporting Officer and Shri R.K.Naba acted as Reviewing Officer. However, it appears that Shri H.P.Solanki was posted at Ranchi Centre as Deputy Director w.e.f. 19.11.95 and as per confidential memo dated 29.3.96 issued by the respondent authorities, on the subject of OA 3816/2011 Annual Confidential Report, a copy whereof has been produced before us, it is mentioned that in respect of subordinate staff, Reporting Officer will be Assistant Director/Manager/Producer as the case may be, and the Reviewing Officer will be the Deputy Director of the Centre. Since Shri Solanki joined as Deputy Director at Ranchi centre on 15.12.95 he should have been the Reviewing Officer in respect of the applicant, who is a subordinate staff. In this context DOPTs memo dated 21.2.83 appearing as GOI decision No.11, at page 17 of Swamys Compilation (supra) may be referred to wherein it is stated that the Deptt. Of Personnel have advised that since there are only two levels for writing the confidential reports i.e. reporting and reviewing authority, the remarks by the Officer other than the reporting and reviewing Officers in the confidential report are not in order. Shri R.K.Naba acted as Reviewing Officer for the applicant after the joining of Shri Solanki on 9.12.1995. His acting as such Reviewing Officer after 19.12.95 for the period from April 95 to till 31.3.96 was irregular and cannot be sustained.
16. So far as the report of the year 1996-97 is concerned, it is mentioned in the aforesaid letter of the Deputy Director dated 8th August, 2000 that applicants CR for the period from 1.4.96 to 31.3.97 was reported by Shri C.P.S.Munda, Producer and was not reviewed in the absence of Reviewing Officer, i.e.Shri Solanki, who expired on 15.1.1997. Yet in response to the representation of the applicant (Annexure A/10) respondents have stated that it has not been found possible to expunge adverse remarks contained in the CR of the applicant for the year 1996-97.
17. From the above it appears that respondents have acted very casually and in a cavalier manner in the matter of processing ACR of the applicant for the aforesaid two years, i.e. 1995-96 and 1996-97. As has already been stated earlier that it is the specific dictum of the Honble Supreme Court that ACR is a vital document and any irregularity in writing the ACRs may mar the career prospectus of an employee. Under the circumstances, we are of the view that the allegation of the applicant has some substance.
18. In view of the above, the first part of the ACR from April 95 to September 95 is not sustainable in view of what has been stated in para 14 above. Accordingly, it is quashed. The second part of the ACR from October 95 to March 96 is also not sustainable in view of our observation made in para 15 above. Hence, this can also not be accepted. Since the reviewing authority for the period under question has since died, no other officer will be in a position to rightly review the ACR written by the reporting officer. Hence, no purpose will be served to allow the respondents time to review the said ACR for the period 1996-97 at this stage.
19. So far as the prayer made by the applicant in his supplementary application challenging the promotion of Shri M. Vasudevan is concerned, in our view it is a separate cause of action and cannot be entertained in this OA. The respondents in their reply to the supplementary application has taken a point that the applicant had filed an earlier OA relating to same promotion bearing No.1385/98 which was dismissed for default. His restoration application was also rejected and the applicant cannot OA 3816/2011 raise this question one again in this OA. Be that as it may, we are not inclined to enter into merit of this claim in this OA as this is a separate and distinct cause of action and is, therefore, barred by Rule 20 of CAT (Procedure) Rules, 1987 being plural remedies. However, the applicant will be at liberty to file separate OA for the same, if it is not otherwise barred by any other law.
20. In view of what has been stated above, we allow this OA and quash the adverse entries made in the ACRs of the applicant for the years 1995-96 ( two reports) and 1996-97 and direct the respondents to ignore those remarks for the purpose of consideration of the case of the applicant for promotion as per rules or for any other purposes where such reports are required to be considered. There will be no order as to costs. It is seen that in the aforementioned case also the report was written from October 1995 to March, 1996 but in the communicating order, it was mentioned for the period from September 1995 to March, 1996.
12. As discussed above and keeping in view the aforementioned judgment of coordinate Bench of this Tribunal, we have no hesitation in holding that the reporting officer has shown a casual approach in writing the ACR of applicant for the period 1.4.2000 to 31.03.2001. This view of ours stands further fortified when we find that the most important column 10 of the ACR in the ACR the period from 1.4.2000 to 31.03.2001, viz. the column regarding general remark and overall assessment has not been filled up at all.
13. Thus the grading recorded in the ACR of the applicant for the year 2000-2001 is not sustainable. ACR for the year 2001-2002 is also questioned on the ground that the Reviewing authority could not have downgraded the grading given by Reporting Officer without recording the reasons. As has been held by the Honble Supreme Court in the case of State of UP Vs. Narendra Nath Sinha (ATJ 2002(1) 118), the reviewing officer cannot down grade the ACR remarks given by reporting officer without recording reasons for doing so. Relevant excerpts of said judgment read as under:
7. It is relevant to note here that in pursuance of the directions issued by the High Court in another Writ Petition filed by the respondent earlier the Principal Secretary of the Works Department of the Government of U.P. had passed the order dated 2nd May 2000 rejecting the representation of the writ petitioner.OA 3816/2011
8. We have perused the said order of the Principal Secretary which is annexed as Annexure P4 to the counter affidavit ( Paper Book-Volume-II). We have also perused the Government Order No. 36/1976-Karmik-2 dated 30th October, 1986 and G.O.No. 36/1/1976-Karmik-2 of even date, G.O.No. 35/1/78-Karmik-2/93 dated 5th March, 1993 and certain other executive instructions issued by the State Government in the matter. The contentions raised by Shri Dwivedi that the Reporting Officer while giving the gradings outstanding or excellent had not stated any reason or justification in support of it cannot be rejected as without substance. The factual position cannot be ignored that the entries we made in 1980s and long term has lapsed since then. In all probability the Reporting Officers, the Reviewing Officers and the Accepting Officers concerned might not be available in the posts and might also have retired from Government service and therefore, no useful purpose will be served in requiring the officers concerned to re-consider the matter.
9. On the facts and in the circumstances of the case we are of the view that the Principal Secretary of the Public Works Department of Government of Uttar Pradesh should consider the matter afresh applying his mind to the grievances raised by the petitioner in the representations submitted by him in the light of the provisions of the rules and executive instructions relating to make entries in the administrative character Rolland promotion from the post of Superintending Engineer to Chief Engineer Level-II and pass a reasoned order. The Principal Secretary should give a reasonable opportunity of hearing to the respondent so that he may place before the authority the materials available on record in the department which may be relevant to consideration of the matter.
10. In the result, we allow the appeal, set aside the judgment of the High Court under challenge and also the order dated 2nd May, 2000 passed by the Principal Secretary, Public Works Department of the State of Uttar Pradesh and direct him to consider the matter afresh in the light of the discussions in this judgment and pass a reasoned order expeditiously if possible within four months of receipt of intimation of this judgment. The respondent shall produce a copy of the judgment before the Principal Secretary to enable the latter to take further steps in the matter. There will be no order as to costs. Even otherwise in GI DP&AR OM No. 51/3/74-Estt.(A), dated the 22nd May, 1975, it is provided that before recording his remarks, the reviewing officer should give hearing to the person reported upon. The said OM reads as under:-
18. Duties of reviewing/endorsing officer:- The following instructions are brought to the notice of the Ministries/Departments for information, guidance and compliance:-
(i) Reporting, reviewing and endorsing officers should have been acquainted with the work of the official reported upon for at least three months during the period covered by the Confidential Report.OA 3816/2011
(ii) With a view to enabling the reviewing authority to discharge his responsibility in ensuring the objectivity of the Confidential Reports, it has been decided that where he is not sufficiently familiar with the work of the officer reported upon so as to be able to arrive at a proper and independent judgment of his own, it should be his responsibility to verify the correctness of the remarks of the Reporting Officer after making such enquiries as he may consider necessary, he should also give a hearing to the person reported upon before recording his remarks.
(iii) While it is expected that the detailed format with alternative answers now prescribed for Confidential Reports would go a long way to minimize cryptic, vague or non-committal remarks being made in the reports, there may be cases where the entries are not sufficiently meaningful. Such reports should be returned to the Reporting Officer for amplification or explanation.
(iv) If the Reporting Officer feels that a prescribed course of training is required by an official in order to equip him better for his duties or to develop his potentialities, he may make a separate recommendation to the appropriate authority on this matter. The Confidential Report would not be a proper place for such a recommendation. In Dharma Pal Vs. Union of India and Ors (ATJ 1999(3) 580), following the various judgments of Honble Supreme Court, this Tribunal also took the view that before down grading the ACR of an officer, the reviewing officer should record the reasons. The said order of learned Single Member may not be binding on us but in view of the law laid down by Honble Supreme Court and other relevant factors, the same can be relied upon as a principle that must be enforced and insisted upon. Relevant excerpts of the said judgment read as under:
4. Learned counsel for the applicant cited certain decisions. One is the case of Lt. Col. Mahabali Singh Vs. Union of India & Ors ( 1997) 2 LBESR 775 (Allahabad), wherein relying on certain Supreme Court decisions, it is held that if the officer concerned is to be down-graded from the previous reports, then in that situation the authority recording the confidentials is to record reasons for such down grading on the personal file of the officer concerned and inform him in the form of an advice. Similarly another decision is cited in the case of Udai Krishna Vs. Union of India (1996) 33 ATC 802(All) wherein it is stated that the accepting authority should have given reasons for down grading.
5. The reviewing officer had made inconsistent remarks. In the first place, he has stated that he is generally agreed with the reporting officer but in the very next sentence, he stated that the officer was OA 3816/2011 over-assessed. This is inconsistent. The second remark is that he rated the officer as highly intelligent and hard working employee but the down graded the overall rating as Good. This is also inconsistent. The reporting officer has given very specific reasons as to why he has rated the officer as very Good. He has not only agreed with the self-appraisal report of the officer but paid encomiums that he was intelligent, hard working and reached the target prescribed. The achievements of the officer against very specific columns have been noted by the reporting officer and these were toned down/down graded without providing any justification. The reviewing officer has not even stated that he personally examined the work of the officer concerned.
6. Let us notice the law laid down by the Honble Supreme Court on the subject. The object of writing confidential reports has been laid down in State Bank of India Vs. Kashinath Kher (1996)6 SCC 762:-
The object of writing the confidential report is two fold i.e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. The officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest of the officers get demoralized which would be deleterious to the efficacy and efficiency of the public service, they should be written by a superior officer of high rank. Secondly, in Sukhdeo Vs. Commissioner, Amravati Division (1996)2 SCC 103, the Supreme Court emphasized the importance of proper material to substantiate the remarks:-
When an officer makes the remarks he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. Thirdly, in U.P.Jal Nigam Vs. Prabhat Chanra Jain (1996) 2 SCC 363, the Honble Supreme Court laid down what should be the proper course of action when the assessment of a C.R. is downgraded.
The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may OA 3816/2011 reflect and adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain.
7. Under the circumstances, relying on the law laid down by the Honble Supreme Court in the cases cited above, the down grading remarks made by the reviewing officer are hereby expunged. The rating for the year 1988-89 ending on 31.3.89 shall be graded as very Good for all purposes.
8. However, for the year ending 31.3.92, the tenor of remark even of the reporting officer was different. He noted at column 33 that he had administered oral counseling on the officer. The reviewing officer has clearly stated that he examined and closely watched the performance of the officer as D.G.M. (P&A). Even so, he had not recorded his reasons as to why he down graded what would otherwise have been a very Good report to an Average report. At the same time he has stated that the applicant is fit for promotion in his turn. While the remarks of the reporting officer do not show complimentarily in every respect yet they are more or less agreed with the self-appraisal report of the officer and in every column, the remarks were positive, encouraging and clearly show and appreciate those qualities of the officer which make him a very good officer. For down grading such an officer as Average, the reviewing officer should have recorded the reasons. A confidential Report is written on objective criteria like (i) Achievement of targets (ii) officer like qualities (iii) Management abilities (iv) Loyality and (v) Abilities of leadership. When under all the columns, the reporting officer had given the applicant exceedingly complimentary report, the reviewing officer ought not to have down graded him without recording two or three instances as to why and how he chose to differ from the reporting officer.
14. For this reason we also find that the grading recorded in the ACR for 2001-2002 also to be unsustainable and the ACR needs to be reviewed. In normal course, we could have remitted the matter back to the reporting/reviewing authorities for reconsidering the aforementioned ACRs for the period from 2000-01 and 2001-2002 of the applicant. However, in all probability, the reporting officer and reviewing officer concerned might not be available in the post and may have also retired from Government service and, therefore, no useful purpose will be served in requiring the concerned officers to re-consider the matter. In the facts and circumstances of the case, we are of the view that the Revenue Secretary (representational authority) should consider the ACRs for 2000-2001 and 2001-2002 afresh by applying his mind to the grievances raised by the applicant sher representation, in the light of the provisions of the rules and executive instructions relating to writing of ACR and in the light of aforementioned findings recorded by us. The Revenue Secretary should give a reasonable opportunity of hearing to the applicant so that she may place before him such materials available on record in the department which may be relevant for consideration of the matter. Such exercise shall be carried out within a period of four weeks from the date of receipt of a certified copy of this order. It goes without saying that the final decision to be taken by the Revenue Secretary on the ACRs of the applicant for 2000-2001 and 2001-2002 shall be communicated to applicant by way of a reasoned and speaking order. The applicant will also be entitled to consequential benefits of the said decision. We make no order as to costs.
( A.K.Bhardwaj) (Shailendra Pandey) Member (J) Member (A) sk