Central Administrative Tribunal - Delhi
Devendra Swaroop Saksena vs Union Of India Through Its Secretary on 19 December, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.4258/2013 MA No.1575/2014 Reserved on: 09.09.2014 Pronounced on:19.12.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Devendra Swaroop Saksena, Chief Commissioner of Income Tax, B-5, Tower 7, New Motibagh, New Delhi. Applicant (By Advocate: Sh. S.K. Gupta with Sh. A.M. Shodhan Babu) Versus 1. Union of India through its Secretary, Department of Revenue, Government of India, New Delhi 110 001. 2. Union of India through its Under Secretary, Department of Revenue, Government of India, New Delhi 110 001. 3. Chairman, Central Board of Direct Taxes, North Block, New Delhi 110 001. Respondents (By Advocate: Sh. R.N. Singh) O R D E R By Dr. B.K. Sinha, Member (A):
The instant Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 impugning orders dated 20.03.2013, 25.04.2013 and 28.09.2010 passed by respondent no.1 communicated vide letters dated 01.04.2013, 03.05.2013 and 08.08.2013 respectively.
2. The applicant has sought the following relief(s):-
1. That this Honble Tribunal may kindly direct the Secretary, Revenue or any other Competent Authority to consider the representation of the applicant on merits and pass reasoned orders;
2. That this Honble Tribunal may kindly further direct that the APAR for the years 2008-2009 be filled up on the basis of the self assessment/resume submitted by the applicant and on the basis of the entries made by Shri Naimuddin;
3. That this Honble Tribunal may direct that the ACRs/APARs for the years 2001-02, 2006-07, 2007-08 and 2008-09 be treated as incomplete ACRs and the previous completed ACRs of the applicant be provided to the Applicant to enable him to make his representations against them or in the alternative direct the Revenue Secretary to provide suitable grades in these years.
4. That this Honble Tribunal may direct that the APAR for the years 2008-09 be graded as Outstanding and to set aside the NO APAR orders dated 20.03.2013, 25.04.2013 and 28.09.2010.
5. That this Honble Tribunal may quash and set aside the impugned orders dated 20.03.2013, 25.04.2013 and 28.09.2010 as being arbitrary and due to non application of mind.
6. That this Honble Tribunal may declare that the Applicant is entitled to all consequential benefits arising out of this Original Application.
7. That this Honble Tribunal may quash the downgraded entry of the reviewing officers for the year 2001-02, 2002-03, 2004-05, 2005-06 and 2007-08.
8. That this Honble Tribunal may be pleased to set aside the order dated 28.09.2010 by which a NO APAR certificate was placed on record even though the self appraisal was submitted within time.
9. Any other relief which this Honble Court deems fit in the interest of justice.
3. The facts of the case, in brief, are that the applicant is a serving Chief Commissioner of Income Tax [hereinafter referred to as CCIT] since January 1, 2012. As stated earlier, the instant OA arises from the orders dated 20.03.2013, 25.04.2013 and 28.09.2010 whereby the representations of the applicant against the grading awarded in his ACRs/APARs were rejected by the competent authority without providing valid reasons for the same, and the order dated 28.09.2010 was allowed to stand as it was. The applicant further submits that the Revenue Secretary had upgraded ACRs/APARs of three out of twelve officers, who had submitted their representations, without having provided a clear rational on basis of which this distinction had been made. The applicant submits that he had been rated Very Good and Excellent from the years 2000 to 2012 and also received numerous cash rewards during his tenure as CIT from the Department for his outstanding work. The applicant has also authored a book titled Access 97/2000 Database Development Outside VBA (ISBN 1556228228) published by a reputed publisher from USA. He had been further selected to represent the Department in a number of conferences outside and had received cash rewards in 2003, 2004, 2006 and 2007, instances of which have been provided by him in Annexure P-2. The applicant on account of his outstanding performance was included in the zone of consideration for the post of Member, CBDT and was informed vide communication dated 30.11.2012 enclosing the ACRs from 2001-02 to 2008-09 enabling him to make representation, if any. The case of the applicant is that the ACRs for the years 2006-07 and 2007-08 were not reported upon in time thereby depriving him of his right of review by superior officers and while the ACRs/APARs for the year 2008-09 was not reported upon, it was treated as NO APAR period. The ACRs/APARs for the period 2004-05 and 2005-06 had been downgraded without assigning any reasons.
4. The applicant further contends that he had submitted his resume/self-appraisal within the stipulated period. The applicant has also submitted a copy of his communication dated 22.05.2009 whereby he had submitted his resume/self-appraisal for the period 2008-09 to the reporting officer and the same appears to have been forwarded by the Additional Commissioner of Income Tax (Hqrs.) acting on behalf of the CCIT to the Member, CBDT on 18.06.2009. On 07.06.2010, the Commissioner (Vig.), CBDT directed all CCITs that one Shaikh Naimuddin, IRS [formerly Member (P&V), CBDT] had superannuated on 31.05.2010 and hence all APARs for the years 2009-10 which had to be reported or reviewed were to be sent to the Department of Revenue by 20.06.2010. Pursuant to the decision of Honble Supreme Court in Dev Dutt versus Union of India [2008 (8) SCC 725), the Department decided to communicate the ACRs for last ten years to the applicant vide communication dated 06.01.2010 and to provide him an opportunity to make representations against the grading of the ACRs/APARs. Accordingly, the applicant submitted his representations against ACRs/APARs to the competent authority i.e. the Secretary, Department of Revenue vide his communication dated 19.12.2012 [Annexure P-8 (Colly.)]. In this document the applicant has represented against the ACRs/APARs for the period from 2001-02 to 2008-09. He has also enclosed copies of documents regarding publication of books, letters sanctioning cash rewards, letters of appreciation issued by CCIT, Ghaziabad and others. These representations of the applicant have been rejected by the respondents vide order dated 01.04.2013, details whereof have been given in the following Chart:-
Date of submission of ACR Remarks of Reporting Officer Remarks of Reviewing Officer Date of representation Date of Decision of representation 1.4.2901 to 31.12.2001 29.01.2002 Very Good 20.12.2002 Very Good 19.12.2012 01.04.2013 01.01.2002 to 31.03.2002 06.05.2002 25.09.2002 Very Good 20.12.2002 Very Good 19.12.2012 01.04.2013 2002-03 07.02.2003 14.02.2003 Very Good 18.02.2003 Very Good 19.12.2012 01.04.2013 2003-04 2004-05 13.04.2005 18.07.2005 Outstanding 16.09.2005 Very Good 19.12.2012 01.04.2013 2005-06 27.06.2006 Very Good 08.12.2006 Very Good 19.12.2012 01.04.2013 2006-07 15.09.2007 Very Good 04.12.2007 No review 19.12.2012 01.04.2013 2007-08 25.04.2008 22.08.2008 Very Good 22.08.2008 No review 19.12.2012 01.04.2013 2008-09 19.12.2012 01.04.2013
5. In respect of ACR/APAR for the period 2008-09, it was communicated that the APAR grading was retained as Very Good. However, subsequently the respondents vide their letter bearing No. A-28011/03/2012-Per/HQ dated 25.04.2013 cancelled the earlier order dated 01.04.2013 and directed the APAR/ACR for the period 2008-09 to be treated as NO APAR period. There is also an order from the respondents to indicate that despite best efforts, the APAR/ACR for the period 2008-09 of the applicant could not be obtained from the reporting/reviewing officer/cadre controlling authority and in view of this the period was directed to be treated as NO APAR period. Against these orders, the applicant has come before this Tribunal on the following grounds:-
(i) In terms of OM dated 16.06.2010 (page 222 of the paper book) the Secretary of Revenue is not the appropriate competent authority. It is the Selection Committee which is authorized to take appropriate decision on the representations against ACRs/APARs.
(ii) There is non-application of mind as is evident from the APAR/ACR period 2008-09 that the impugned orders were received separately in respect of each of the ACRs vide letter dated 01.04.2013 which are cryptic for the simple reason that without having any resume/self-appraisal for the period 2008-09 on record, the respondents had rejected the representation of the applicant maintaining the grading to be retained as Very Good. When the applicant represented in relation to ACR for the year 2008-09 as his representation was rejected in terms of the order dated 01.04.2013, the same was not even considered by the competent authority and the file was dealt with only at the level of the Deputy Secretary. The applicant has enclosed the relevant notings at page 218 of the paper book. This shows a complete lack of application of mind. Moreover, the nature of the impugned orders are cryptic, non-speaking and unreasoned. In fact, the Revenue Secretary has not acted in a quasi judicial capacity as required under DOP&T OMs dated 13.04.2010, 19.05.201 and 31.01.2014.
(iii) Entries in the ACRs/APARs for the period 2004-05 and 2005-06 are bad as the downgrading has been done illegally without having stated any reasons whatsoever. This is in violation of DOP&T OM dated 16.06.2010 and the decision in M. Sailo, IRS v. Union of India [OA No.3816/2011 and MA No.672/ 2012].
(iv) That the applicant had also made a request for referring the matter to the Referral Board as provided in para 8.2 of the General Guidelines for filling up the APAR Form.
6. It is also pertinent to mention here that being aggrieved by the orders of the competent authority dated 01.04.2013 and 25.04.2013, the applicant sought to file an appeal before the Referral Board vide his communications dated 18.04.2013 and 09.05.2013 in accordance with paras 8.2 and 8.3 of the General Guidelines. However, the Under Secretary, vide his order dated 08.08.2013 rejected the request of the applicant for referring the matter to the Referral Board, which reads as under:-
your representation, along with similar representations of other CCIT/DGIT level officers against their ACR gradings, has been dealt with in accordance with the instructions issued by the Department of Revenue vide OM No.A50050/19/2010-SO(P) dated 16.06.2010 and also as decided by the Selection Committee of Secretaries in its minutes dated 14.02.11. Besides instructions contained in DOP&T OM No.21011/1/2010-Estt.A dated 13.04.10 provides only for consideration of the representation by the competent authority limited to deciding retention or upgradation of the grading in ACRs for the period prior to 2008-09 taking into account the facts indicated in the representations and comments thereon offered by the Reporting and Reviewing authorities. It does not provide second or subsequent representation against the decision of the Competent Authority. Further, in the aforementioned instructions dated 16.06.2010 issued by the Department of Revenue, it has been mentioned that DOP&T has clarified that instructions contained in its OM dated 16.06.2010 will not apply in respect of CCsIT as Member in CBEC/CBDT, since it is not a case of promotion and since there is no fixed benchmark being following by the Selection Committee.
7. We have also taken note of the affidavit filed by the applicant wherein it has been stated that the Referral Board system was not being entertained in view of the provisions of OM of DOP&T dated 13.04.2010 but at the end of the very same communication, the Under Secretary stated that DOP&T OM dated 13.04.2010 was not applicable to the applicants case. Thus, there is a contradiction in the respondents approach and the same has been operated to prejudice the applicants claim. The applicant further submits that when the aforesaid contradiction was highlighted, the respondents, in their affidavit dated 06.02.2014, have stated that the Referral Board System did not exist in the CBDT whereas on the basis of the Guidelines dated 16.06.2010, it was incumbent upon the respondents to convene a Referral Board when required.
8. The respondents have filed a counter affidavit rebutting all the points raised in the OA as misleading and misconceived. The respondents have replied in respect of para 4.7 that No Review Certificates of the applicant for the years 2006-07 and 2007-08 were as per the relevant instructions and guidelines of the Department of Personnel & Training prevalent at that time. The ACR for the period 2004-05 was downgraded by the competent authority strictly keeping in view the performance of the officer reported upon and as per the relevant instructions and policy issued by the DOP&T. The APAR for the period 2008-09 of the applicant could not be obtained from the reporting/reviewing/cadre controlling authorities despite best efforts and, therefore, NO APAR period was recorded. In para 4.22, the respondents submitted that as the applicant had made a common representation relating to the period 2001-02, 2002-03, 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09, the same was duly considered by the competent authority and was summarily rejected. In para 4.24, the respondents have submitted that the Referral Board System does not exist in the CBDT so far and the representation from the IRS(IT) officers are being considered as per the extant instructions issued on the subject. In reply to para 4.28 and 4.29, the respondents have stated that in fact, for the period 2008-09, the applicant had not given any reference to support the fact that Shaikh Naimuddin the then Member CBDT has forwarded an APAR duly initiated by him. Accordingly, NO APAR period was appended in the APAR of the applicant for the relevant period. While considering the representation, the Competent Authority decides the matter objectively in a quasi-judicial manner on the basis of available records. After careful consideration and going through the APAR dossier of the applicant, the competent authority found that no new facts had been brought out by Shri Saksena which warrants upgrading of the grading. Hence, the representation of Shri Saksena was found devoid of merit and was summarily rejected.
9. While dealing with the grounds, the respondents state in para 5(2) that as per extant instructions on the subject, the Revenue Secretary has decided the matter objectively in a quasi-judicial manner on the basis of available records. He carefully gone through representation and APAR dossier of the applicant and found that no new facts had been brought out by the applicant in his representation and accordingly it was summarily rejected. They have further submitted in para 5.4 that since the order dated 01.04.2013 was inadvertently issued, a revised order was issued by the Under Secretary on 25.04.2013. As the Revenue Secretary has rejected the representation that includes his plea for the year 2008-09 also, there was no need to take further approval of Revenue Secretary. The respondents have further stated in para 5(13) that the prayer of the applicant that the grading be done based on the self assessment and the ACR/APAR entered by Mr. S. Naimuddin is rejected on the ground that as per available record, ACR was not received, hence NO APAR Period was recorded. The respondents have further submitted that there is no provision for any review by referring the matter to Referral Committee and this power has been vested into the Secretary [para 5.36 of the counter affidavit]. The respondents have further submitted that it is the reporting and the reviewing officers, who have closely supervised the work of the applicant, are competent to take a decision in this regard. The competent authority has decided the matter objectively in a quasi-judicial manner on the basis of available records and after careful consideration of the representations submitted by the applicant, found that no new facts had been brought out by the applicant which warranted upgradation and, hence, summarily rejected the representations of the applicant.
10. The respondents have also taken up a preliminary objection of limitation and multiple reliefs in violation of the provision of Rule 10 of the CAT (Procedures) Rules, 1987.
11. The applicant has filed a rejoinder application wherein he has relied upon the OM dated 16.06.2010 (page 222 of the paper book) issued by the Department of Revenue which specifically provides that only the Selection Committee is competent to decide the representations submitted by Chief Commissioner level officers for upgradation of their ACRs/APARs. The applicant has also relied upon the Minutes of Committee of Secretaries meeting held on 14.02.2011 vide which power had been delegated to the Revenue Secretary. The applicant has pointed out that the instant Committee of Secretaries was for a particular year and no such direction and that too contrary to OM dated 16.06.2010 could be given. In this regard, the applicant has argued that if this is allowed to perpetuate, the intent of OM dated 16.06.2010 would be defeated and even CBDT Recruitment Rules which mandate constitution of Committee of Secretaries for selection of Members and Chairman of CBDT and the Prime Ministers Guidelines dated 16.07.2006 wherein detailed procedure for selection states that last 10 recorded available ACRs of each candidate would be considered for grading with careful scrutiny of upgrading/downgrading, if any, by the Committee of Secretaries are violated. The learned counsel for the applicant vehemently argued that the entire exercise smacks of arbitrariness and total non-application of mind and is in utter violation of the instructions of DOP&T and other instructions issued by the Department itself. If this is allowed to perpetuate, any selection to the post of Chairman/Member of CDBT would become a closed and arbitrary process. The learned counsel for the applicant further contended that though the applicant had given a large number of points in his pleadings but confined himself to the grounds as have been noted in earlier part of this order while dealing with his submissions.
12. The applicant in support of his claim has relied upon the following judgments/orders:-
i) Swati S. Patil Vs. Union of India [OA No.2033/2010 decided on 11.02.2011] affirmed upto the level of Honble Supreme Court vide its order dated 26.02.20140;
ii) Simens Engineering and Manufacturing Co. of India Ltd. V. Union of India [AIR 1974 SC 87];
iii) Union of India Vs. Mohan Lal Capoor [AIR 1974 SC 87];
iv) R. Vs. Civil Services Appeal Board, ex parte Cunningham[1991 All ER 310]
v) R. Vs. Immigration Appeal Tribunal, ex parte Khan [(1983) 2 All ER 420 at 432];
vi) State of Uttar Pradesh Vs. Jai Singh Dixit [(1976) ILLJ 246 All];
vii) M/s. Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan [SLP(C) No.20428 of 2007];
viii) M. Sailo Vs. Union of India [OA No.3816/2011 and MA 672/2012];
ix) Dharma Pal Vs. Union of India (ATJ 1999 (3) 580];
x) State Bank of India Vs. Kailash Nath Kher [1996 (6) SCC 762]
xi) S. Ramachandra Raju Vs. State of Orissa [JT 1994 (5) SC 459];
xii) Biswanath Prasad Singh Vs. State of Bihar [JT 2001 (1) SC 161]; and
xiii) Kanwar Singh Saini Vs. High Court of Delhi (Criminal Appeal No.1798 of 2009, para 13].
13. We have carefully gone through the pleadings as also the documents and case laws submitted by both the parties. We have also patiently heard the oral submissions made by the learned counsel for both the parties during the course of arguments, on the basis whereof the following issues are germane to decide the controversy involved in the instant OA:-
1. What is the purpose of recording of ACRs/APARs and how the judicial pronouncements have aided and developed the process?
2. Whether the exercise undertaken by the Revenue Secretary in rejecting the representations of the applicant shows non-application of mind?
3. Whether there is arbitrariness in the impugned orders while rejecting the representations of the applicant?
4. Whether there is any provision under the Rules whereby the representations can be dealt with by a Referral Board?
5. What relief, if any, could be granted to the applicant?
14. Before we take up the issues on merit, we have to determine whether the applicant clears the hurdle of limitation as has been pleaded by the respondents. The learned counsel for the respondents has argued that since the ACRs were of various periods starting from 2000-01 to 2008-09, it is just and proper that the applicant should have approached this Tribunal within the period of limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985. However, we are compelled to take note of the fact that prior to the judgment in Dev Dutt versus Union of Indias case (supra), there was no system of communication of below benchmark ACRs nor of showing such ACRs to the employee concerned. It was only vide OM dated 13.04.2010 when the system of communication of ACRs was introduced and the ACRs prior to 2007-08 were also required to be communicated. Thereafter, there is no way that the applicant could have represented against the ACRs under consideration. Moreover, considering the fact that when the applicant was within the zone of consideration for promotion to the post of Member, CBDT, his ACRs of last ten years were communicated to him and he was given the option to represent against them. The applicant represented against the ACRs for the period from 2000-01 to 2008-09 which were finally rejected, vide the impugned orders all dated 01.04.2013. It was only in case of the ACR for the period 2008-09 where though there was no APAR report certified by the department, the order of the competent authority was that the grading be retained as Very Good, which was later modified to NO APAR report vide letter dated 25.04.2013.
15. The instant OA has been filed on 29.11.2013. Therefore, we are of the view that the OA has been filed within time as the clock of limitation will start running from the date his representation was rejected that being dated 25.04.2013.
16. As regards the question of multiple reliefs, Rule 10 of the CAT (Procedure) Rules, 1987 provides that an application shall be based upon a single cause of action and may seek one or more relief provided that they are consequential to one another. Since the ACRs for the period under consideration have been communicated to the applicant in one transaction and he has made a single representation, vide his communication dated 19.12.2012, this will be construed as a single cause of action. Of course, Rule 10 of the Rules ibid permits more than one reliefs to flow from single cause of action provided that they are consequential to one another. Hence, we do not find Rule 10 acting as an obstruction in this case. In any case, it is for this Bench to grant relief and, as such, Rule 10 of the Rules ibid does not constitute a bar to either hearing or disposal of the OA.
17. Insofar as the first of the issues is concerned, we begin by examining all the provisions relating to filling up of ACRs/APARs and different decisions of the Honble superior courts over the same. For this process, we have consulted Chapter 53 of the Swamys Complete Manual on Establishment and Administration for Central Government Officers [14th Edition -2014]. The first part of this Chapter deals with the confidential reports while the later part deals with Annual Performance Appraisal Report (APAR). Under this system, consequent to the judgment in Dev Dutt versus Union of Indias case (supra), the APAR was introduced in order to realize the objective of writing confidential reports, making entries and giving an opportunity to the public servant to improve his/her performance. The APAR system includes communication of overall grading and assessment of integrity to the concerned officer by giving an opportunity to make representation against the said entries and final grading within fifteen days from the date of receipt of the entries in the APAR restricted to specific factual observations contained in the report leading to assessment of the officer concerned in terms of his/her attributes, work output, etc. The new system of communicating the entries was made applicable from 01.04.1999 while the competent authority was given the mandate to consider representations in consultation with reporting and/or reviewing officers and shall decide the matter objectively based on the material placed before him within a period of 30 days from the date of receipt of such representations. We have further considered the Govt. of Indias OM dated 06.01.2010 which deals with the effect on modification/expunction of adverse remarks. OM dated 13.04.2010 provides as to how the below benchmark ACRs, prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of final grading, is to be decided objectively in a quasi judicial manner. Para 2 of the OM dated 13.04.2010 reads as under:-
As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the reporting and reviewing officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the reporting and reviewing officer if they are still in service on the points raised in the representation vis-`-vis the remarks/grading given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of reporting/reviewing officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion. We also take note of the OM dated 27.04.21010 which provides as to how the ACRs with below benchmark grading are to be considered in past DPCs. The OM dated 19.05.2011 also directs the competent authority to consider representations on the basis of material placed before him once again within 30 days on receipt of such representations objectively. Annexure-III of Chapter-53 provides time schedule for submitting APARs, which reads as under:-
TIME-SCHEDULE FOR PREPARATION OF CONFIDENTIAL REPORTS Sl.
No. Nature of action Date by which to be completed 1 Distribution of blank CR forms to all concerned (i.e. to officer to be reported upon where self-appraisal has to be given and to Reporting Officers where self-appraisal is not to be given) 31st March (This may be completed even a week earlier) 2 Submission of self-appraisal to Reporting Officer by officer to be reported upon (where applicable) 15th April 3 Submission of report by Reporting Officer to Reviewing Officer.
30th June 4 Report to be completed by Reviewing Officer and to be sent to Administration or CR Section/ Cell or accepting authority wherever provided.
31st July
5.
Appraisal by accepting authority, wherever provided 31st August
6.
(a)Disclosure to the officer reported upon where there is no reporting authority.
(b) Disclosure to the officer reported upon where there is accepting authority.
01st September 15th September
7. Receipt of representation, if any, on APAR 15 days from the date of receipt of communication.
8. Forwarding of representations to the competent authority
(a) Where there is no accepting authority for APAR
(b) Where there is accepting authority for APAR 21st September 06th October
9. Disposal of representation by the competent authority Within one month from the date of receipt of representation.
10. Communication of the decision of the competent authority on the representation by the APAR Cell.
15th November
11. End of entire APAR process, after which the APAR will be finally taken on record.
30th November.
18. Additionally, we have consulted decisions of the Apex Court in Amar Kant Chaudhary versus State of Bihar [AIR 1984 (SC) 531]; State of Haryana versus P.C. Wadhwa [AIR 1987 (SC) 1201]; Union of India versus E.G. Nambudiri [AIR 1991 (SC) 1216]; S. Ramachandra Raju versus State of Orissa [1994 (5) SLR 199]; Sri Rajasekhar versus State of Karnataka [1996 (5) SLR 643]; State Bank of India versus Kashinath Kher [AIR 1996 (SC) 1328]; State of U.P. versus Ved Pal Singh [AIR 1997 (SC) 608]; Swatantar Singh versus State of Haryana [AIR 1997 (SC) 2105]; Union of India versus N.R. Banerjee [1997 SCC (L&S) 1194]; State of U.P. versus Yamuna Shanker Misra [1997 (4) SCC 7]; State of Gujarat vesus Suryakant Chunilal Shah [1999(1) SCC 529]; P.K. Shastri versus State of M.P. & Ors.[1999(7) SCC 329], B.P. Singh versus State of Bihar [2001 SCC (L&S) 403] and also the decision of Ahmedabad Bench of this Tribunal in the matter of A.P. Srivastava versus Union of India & Ors [OA No.673/2004 decided on 09.01.2007] on the basis of which following principles could be culled out:-
(i) Article 51(A)(j) enjoins upon every citizen to constantly endeavour to prove excellence individually and collectively. Given an opportunity an individual employee strives to improve excellence and thereby efficiency of administration would be augmented.
(ii) The object of writing confidential reports is two fold i.e., to given an opportunity to the officer concerned to remove the deficiencies, to improve his performance and to realize his potential and secondly to improve the quality & efficiency of the administration.
(iii) The object of communicating adverse ACR to the officer concerned is to enable him to make amends, to reform, to discipline himself and show improvement towards efficiency, excellence in public administration.
(iv) One of the uses of ACR is to grade him in various categories like outstanding, very good and satisfactory and average etc.
(v) Purpose of adverse entries is to be forewarn an employee to mend his ways and improve his performance.
(vi) The ACRs must be recorded at two levels.
(vii) The ACRs must be recorded objectively and after a careful consideration of all the materials. It should not be a reflection of personal whims or fancies or prejudices, likes of dislikes of a superior.
(viii)The Apex Court in Nambudiris case after referring to the Constitution Bench decision in Mohinder Singh Gill and G.S. Fijji has held that principles of natural justice apply to administrative orders if such orders inflict civil consequences. Civil consequences means anything which affect a citizen in his civil life. Unjust decision in an administrative enquiry may have more far reaching consequences than a decision in a quasi-judicial enquiry.
(ix) The Apex Court in Amar Kant Chaudhary and Yamuna Shankar Misras case has emphasized the need for sharing information before forming an adverse opinion. The Apex court in Amar Kant Choudhary had asked the Executive to re-examine the existing practice of writing of ACRs to find a solution to the misuse of these powers by officers, who may not be well disposed.
(x) Representations against adverse/below benchmark entries must be disposed of by the prescribed competent authority and not by other.
(xi) The disposal of the representation must be made in a quasi judicial manner by a reasons order on due application of mind.
19. What stands out is that the purpose of ACR is both to give an opportunity to the concerned officer to remove the deficiencies and improve his performance and to realize his potential and to improve the quality and efficiency of the administration. ACR is not to be used as an instrument of vendetta or as a platform for settling old scores. The very purpose of communicating ACRs is to enable the officer concerned to know his deficiencies and errors where he has to make improvements as also to make representation where he feels that he has been unfairly reported upon by ignoring the contents of his appraisal/self resume and performance. It has already been treated by the Government that representation is to be decided both in an objective and quasi judicial manner i.e. by a reasoned and speaking order. We also hold that the old system of writing ACRs and submitting representations was quite different from what it is today. The present system has been developed by a series of decisions as we have discussed above. The present system of writing ACRs does not reflect the hierarchy as a one way assessment, but there is also a participation of employees being reported upon. We further find that the present system is objective and participatory. The system of filing representation and decision thereon is also objective and has a judicial nature implying thereby that the points on which the representation has to be preferred are required to have the observations of the reporting and/or reviewing officers unless they have retired and are to be decided in a quasi judicial manner, meaning thereby that the representation should be fully considered, its main points gleaned, discussed and if the representation is not agreed with or agreed with, the reasons have to be furnished. We further find that the decision in ACRs is getting linked to the principles of natural justice which implies objective consideration.
20. We have also taken note of the OM dated 19.05.2011 which provides that orders of the competent authority do not contain specific reasons for such upgradation in a number of cases: such orders cannot be termed as disposed of in a quasi-judicial manner as laid down in OM dated 13.04.2010 This is supported by the DOP&T OM dated 31.01.2014. We do not have the orders of upgradation made by the competent authority in the same process in respect of some other officers as has been pleaded by the applicant. However, the same logic will apply considering the request for upgradation, which has been denied. With this, the first issue is answered accordingly. We also state at this juncture that we propose to test the points raised in this OA on the touchstone of the basic principles culled out in response to this issue.
21. Insofar as the second of the issues is concerned, we deem it proper to cite the following facts taking the APAR for the year 2008-09 as an example. This APAR was submitted on 22.05.2009 and was forwarded to the reporting officer on 18.06.2009 by the CCIT, Ghaziabad. During this period, one Sudhir Chandra, CCIT, Ghaziabad was his reporting officer except for the period from 31.01.2009 to 01.02.2009 while Shaikh Naimuddin, Member, CBDT was his reviewing officer from 01.04.2008 to 31.03.2009. However, the applicant came to learn that the APAR in question had not been reported upon, therefore, he submitted a copy of the same directly to his review officer one Shaikh Naimuddin, vide his communication dated 22.06.2009. However, the Board issued a letter dated 07.06.2010 calling upon officers to submit their APARs since the reviewing officer Shaikh Naimuddin, Member, CBDT had retired on 31.05.2010. The applicant was under an impression that the said Shaih Naimuddin had recorded his APAR as reviewing officer. However, despite having submitted his APAR twice, NO APAR certificate was placed on record. The applicant has also mentioned that during the period, the tax collection by him had exceeded the budget target of 90% and last years collection by 45% on account of certain initiatives on his part; all arrears returns and a good part of current returns were processed; scrutiny disposal exceeded the norm by 30% and the then Chairman & Member (P) had rated the infrastructure of Meerut office as the best in India and new CCIT, Ghaziabad had also issued a letter of appreciation. Consequent upon calling to file representation, the applicant submitted his representation wherein the competent authority, apart from these facts, was requested that as no APAR of the applicant had been on record, either the APAR written by the reviewing authority or his self assessment along with CR form be placed on record. Instead, the competent authority passed an order dated 01.04.2013, which reads as under:-
After carefully going through the representation of Sh. D.S. Saksena (IRS:IT:79017) CCIT contained in his communication dated 19.12.2012, against the grading of his APAR for the period 2008-09, the Revenue Secretary, vide his order dated 20.03.2013 in the file of even number, observed that no new facts have been brought out by Shri Saksena which warrant upgrading of the gradings. The representation of Shri Saksena is devoid of merits and accordingly the appeal is rejected.
2. Hence, the APAR grading for the period 2008-09 in respect of Sh. D.S. Saksena, CCIT will be retained as Very Good. Not satisfied with the order dated 01.04.2013, the applicant made a representation dated 18.04.2013 with a request for making reference to convene a Referral Board for the purpose. In his representation, the applicant records that it is really not understood as to how the grading of Very Good was ordered to be retained when no grading was awarded in the first place. It can, therefore, be clearly seen that the competent authority has passed an untenable order without application of mind and without appreciation of facts on record, and for this reason, the order deserves to be quashed. Consequent to this representation, the respondent authorities have passed order dated 25.4.2013 modifying earlier order dated 01.04.2013, which is being extracted for easy reference and better elucidation:-
In supersession of this Departments Order of even number dated 1st April, 2013, the undersigned is directed to state that after carefully examination of the representation of Sh. D.S. Saksena (IRS:IT:79017) CCIT contained in his communication dated 19.12.2012, appealing either to re-write his APAR for 2008-09 on the basis of his self appraisal for the year or to retrieve the APAR initiated by Sh. S. Naimuddin, then Member, CBDT and to place on record, the Revenue Secretary has observed that his representation is devoid of any merit and accordingly decided to reject the appeal in this regard.
2. Hence, in respect fo the 2008-09, the period will be retained as NO Report period.
3. The order of even number dated 1st April, 2013 issued in this regard may be treated as cancelled.
22. We deem it necessary to understand what is a quasi judicial order? The word quasi consists of two Latin words Quam + Si. Quam, in Latin, means as much as and Si means if. The prefix quasi connotes the meaning similar to but not exactly the same as. Thus, a quasi judicial order is similar to but not exactly an order of judicial court and administrative function is called quasi-judicial when there is an obligation to assume judicial approach to comply with the basic requirements of natural justice. Thus, the fundamental purpose of a quasi-judicial hearing is to provide the affected parties due process. The term Due process requires notice of the proceedings and an opportunity to be heard. The element of quasi judicial proceedings include adequate notice; impartial hearing to officers; right to be represented in person or through counsel; right to confront parties and witnesses; right to compel production of evidence and right to judicial review. The Law Lexicon (The Encyclopedic Law Dictionary with Legal Maxims, Latin Terms, Words & Phrases) defines the Quasi-judicial decision and administrative act (distinction) as under:-
Quasi-judicial decision and administrative act (distinction). The essential test of quasi-judicial decision which distinguishes it from an administrative act is that the law empowering the quasi-judicial authority to make a decision requires a judicial approach, either expressly or by necessary implication. Haji Abdual Shakoor v. Rent Control and Eviction Officer, MLJ: QD (1956-1960) Vo.II C.338-339: AIR 1959 All 440
23. In the present case, in the first place we find that the approach of the respondents has been far from being quasi judicial. It is even remotely nowhere near to the above distinction. To begin with, one finds that all the impugned orders are in stereotyped mode. In the second place, when a representation is made against an ACR, it has to be on basis of what has been provided in statistical supplements. If such data has not been placed before the reporting or reviewing officers, it cannot form the basis of any representation because ACRs are recorded on that basis by all the officers connected with the working of the employee reported upon. However, all the representations have been disposed of with a curt and short order, one of which has already been quoted above. The competent authority was required to look into the points raised in the representation and that whether the remarks recorded by the reporting and reviewing officers did not do justice to the performance of concerned employees. Here, there is not even a remote hint that these issues were examined, which make the impugned orders strongly non-quasi judicial but fully arbitrary. The order in question is not even administrative as the same has the compulsion to be reasoned, considered and not to be bereft of the basic principles of justice.
24. In the third place, we find that in respect of the APAR for the period 2008-09, even when no APAR was certified by the department, the order dated 01.04.2013 held that it should be retained as Very Good. This implies only one thing that what to talk of the competent authority, even his subordinates did not care to look as to what is contained in the representation and in the APARs but have got a stereotyped order passed by the competent authority. The competent authority is certainly guilty of not applying its quasi judicial mind. No amount of chicanery with words as have been displaced by the learned counsel for the respondents, or labored explanations can satisfactorily explain away this grievous lapses and total non-application of mind. In the fourth place, we also take note of the fact that the revised order dated 25.04.2013 was issued after this lapse had been brought to the notice of the competent authority by the applicant himself in his representation dated 18.04.2013. This order further combines non-application of mind, as the representation of the applicant has not even reached the competent authority and has been disposed of at the level of Deputy Secretary only. The competence to decide representation resides within the person of the competent authority and not in the Deputy Secretary or whosoever be his under-links. In the fifth place, we are compelled to infer that this thread of non-application of mind runs through the entire orders relating to all ACRs of the applicant pertaining to other periods as well. Total lack of application of mind is writ large on the very face of the order, which cannot be condoned. This issue is answered accordingly.
25. Insofar as the third of the issues is concerned, it has already been discussed in part, while dealing with issue no.2 above. The word arbitrariness has been defined under Section 20 of the Specific Relief Act, 1963 as Depending on will or pleasure, based on mere opinion or preference, hence capricious. In other words, characterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or law or without determining principle. This arbitrariness is attended by subject to individual will or judgment without restriction decided by a person/judge in his own way rather than by law, statute having un-limited powers, un-controlled or un-restricted by laws despotic and tyrannical capricious. Doctrine of natural justice is an antidote of arbitrariness. It has been held time in and time out by superior courts that the doctrine of natural justice means fairness in action. It includes right to be heard before adverse action is taken by the State against a citizen, and in case of any breach of principles of natural justice, the Court would step in and correct the wrong done [Syndicate Bank versus Wilfred DSouza AIR 2003 Kant. 337 and Nand Ram versus State AIR 2002 Kant 235]
26. Here, we do concede that personal hearing is not mandatory while deciding representations against ACRs. What is mandatory is that the contents of representation should have been considered and disposed of by a reasoned and speaking order quasi judicial in nature. Here, we find that non-consideration of representations of the applicant and disposal thereof by stereotyped and totally misconceived orders indicate arbitrariness. We are also compelled to take note of the fact that ACRs of two years i.e. 2004-05 and 2005-06 were downgraded without having recorded any reason for the same. The applicant represented against these ACRs. The order of the competent authority does not even touch the points raised in the representation. This would be evident from the chart given below in continuation to the chart given in para 3 of this order:-
Year Remarks of Reporting Officer Remarks of Reviewing Officer Points taken by the applicant Reasons for rejection of representation 2008-09 * No APAR recorded * Prays for placing the APAR written by reviewing authority on record.
* Self-assessment of the applicant be placed on record along with CR *APAR gradings be retained vide order dated 1.4.2013.
* APAR modified on representation vide order dated 25.04.2013 without the representation having been seen by the competent authority 2006-07 & 2007-08 Very Good Very Good No Review No Review * ACR not reviewed by the competent authority * Gradings of ACR recorded much after the period of reporting.
*Gradings not done in objective manner.
*Prayed for consideration of the gradings with responsibility and objective.
Representation rejected on the basis that no new records have been brought on record.
2005-06 & 2004-05 Very Good Outstanding Very Good Very Good * ACRs downgraded by the reviewing officer without providing reasons.
* Prays for declaration of these gradings non est. *Representation rejected on the ground that no new facts have been brought on light. No reasons have been provided. 2002-03 & 2001-02 Very Good Very Good Very Good Very Good *Prays that ACRs be assessed objectively.
*Representation rejected on the ground that no new facts have been brought on light. No reasons have been provided.
27. Here, we also take note of the fact that the case of the applicant follows a close parallel to that of the decision of the Tribunal in Mrs. M. Sailo, I.R.S. versus Union of India [OA 3816/2011 and MA 672/2012 decided on 06.08.2012]. We find that in similar circumstances, this Tribunal had taken a view that the remarks of the reviewing officer amounted to unreasoned downgrading. A comparative chart stands referred to at page 375 of the paper book. Applying the principles laid down in the above case, we find that there is a case of unreasoned downgrading of APARs/ACRs for the years 2004-05 and 2005-06.
28. When we take the picture in totality, we find that the order of the competent authority suffers from three major lacunae (i) it reveals total non-application of mind, (ii) decisions have been taken by incompetent authority and communicated on his behalf, and (iii) there is unreasoned downgrading which should not have been there in the order and rather the same should have been discussed in the order disposing of the representation. Therefore, this issue is answered in favour of the applicant.
29. Insofar as the fourth issue is concerned, the applicant sought a reference to Referral Board vide his representation dated 18.04.2013. However, in para no.8, being prayer clause of the OA, the applicant has prayed for a direction to the Revenue Secretary or any other competent authority to consider his representations on merit and pass reasoned orders. However, in the rejoinder, the applicant has specifically stated that the Revenue Secretary is not competent to deicide representations made by him against ACRs for which reliance is placed on OM dated 16.06.2010 issued by the Department of Revenue which specifically states that only the Selection Committee is competent to decide the representations made by CIT level officers for upgradation of ACRs.
30. The respondents have contended in reply to para 5(28) [page 321 of the paper book) that representations are being dealt with as per the existing instructions/rules. No violation of rules has been committed while deciding the representations of the applicant. As per the minutes of the meeting of Selection Committee for appointment of Member, CBDT/CBEC held on 14.02.2011(Annexure R-1), the practice of considering ACRs by the competent authority and revised grading being assigned thereon are also being vetted by a committee consisting of Secretary (Personnel) and Revenue Secretary. Here, the respondents have relied upon the minutes of the meeting dated 14.02.2011, para 4 of which is being extracted herein below for easy reference:-
4. The Committee noted that in line with the principles laid down by the Honble Supreme Court, the Department of Revenue had communicated all past ACRs that would be considered by the Committee for purposes of selection, to the candidates to enable them to make requests for upgradation, if required. Representations received would be disposed off by the Revenue Secretary. The Committee noted that in the selection for last year also, representations received from several officers for upgradation were disposed off by the Revenue Secretary. The Committee approved the above procedure for all subsequent selections. However, the applicant in the rejoinder has re-emphasized the point that only the Selection Committee is competent to decide such representations made by him.
31. We start by looking at the Central Board of Direct Taxes (Chairman & Members) Recruitment Rules, 2006 which had been notified by Gazette Notification dated 02.02.2006, relevant portion whereof provides as under:-
(12) (13) (14)Deputation/absorption
(i) Officers of the Central Government appointed on a regular basis in the grade of Rs.22,400-24,500/-
AND possessing the following essential qualifications-
(i) Having at least 15 years of experience in administering and running the direct tax administration in the Central Government with at least 10 years of experience in the field formations of Central Board of Direct Taxes;
(ii) Having high professional merit and excellence; and
(iii) Having impeccable reputation of integrity Note 1. Normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
2. No person with less than 1 year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration.
Not applicable However, a Selection Committee with the following composition shall recommend selection of eligible officers to be appointed to this post by the Central Government.
(i) Cabinet Secretary- Chairman
(ii) Principal Secretary to Prime Minister-
Member
(iii)Home Secretary Member
(iv) Secretary (Personnel), DOP&T Member
(v) Secretary, Deptt. of Revenue - Member Note:
1.The Cabinet Secretary may co-opt Chairman, Central Board of Direct Taxes for Selection Committee meetings.
2. The Selection Committee may devise ways to assess candidates.
Consultation with the Union Public Service Commission The Guidelines for Selection of Chairman and Members of CBDT/CBEC issued by the Cabinet Secretariat dated 13.07.2006 provide for a two tier screening system. Relevant portions of the Circular are extracted below:-
(f). in order to have a rigorous test of integrity, a two tier screening system may be put in place. First screening of candidates would be on the basis of their suitability from the integrity point of view. The candidates shall be assessed keeping in view the requirement of impeccable reputation for integrity. The input for this screening by the Selection Committee would be the vigilance status reports, details of past/continuing penalty, proceedings, complaints, whether the candidate is or has ever been on the Agreed List/List of Officers of Doubtful Integrity and the report of the CVC.
(g). in order to ensure professional merit and complete transparency and predictability is maintained in selection, a points system as in the case of Railways may be introduced. Candidates short-listed for further consideration after the first screening would be graded on the basis of ACRs. Last then recorded and available ACRs of each candidate would be considered for grading with 5 (five) points being assigned for Outstanding, 4(four) for Very Good, 2.5 for Good and 0 (Zero) for Others with carefully scrutiny of upgrading/downgrading if any.
(h) the CBDT/CBEC (Transaction of Business) Rules, 1964 may be suitably amended to bring them in line with the provisions of the Recruitment Rules notified on 2.2.2006. The Selection Committee in its meeting dated 14.02.2011 also appears to have approved the principles of assessing the ACRs for selection of Members, CBDT/CBEC, relevant part whereof reads thus:
3. Instead of following monthly weighted average method for assessing the ACR, the ACR should be treated for the whole year and the assessment of the ACRs should be done as per the following principles:-
(i) If the Reviewing Officer has upgraded or downgraded an officer without giving any justification for such upgrade or downgrade, as the case may be, then the original grading by the Reporting Officer is taken;
(ii) If the Reviewing Officer has upgraded or downgraded an officer, with justification for such upgrade or downgrade, as the case may be, then the revised grading of the Reviewing Officer is taken;
(iii) If grading by the Reporting Officer is not specific, but that of the Reviewing Officer is specific, then the specific grading by the Reviewing Officer is taken, whether or not he has given any justification for such grading;
(iv) If grading by the Reviewing Officer is not specific, but that of the Reporting Officer is specific, then the specific grading by the Reporting Officer is taken, whether or not there is any justification for the grading by the Reporting Officer;
(v) If the overall gradings by the Reporting Officer and the Reviewing Officer are both not specific then an overall view is taken by analyzing the gradings or remarks given against the various attributes and the general remarks;
(vi) In case there are multiple ACRs in a year (i.e. different part periods), first apply the principles at (i), (ii), (iii), (iv) and (v) to the ACRs for a part period to arrive at a single overall grading for that part period. Then taken a straight average of the points so arrived at for the different part periods.
32. We also take note of the fact that the DOP&T OM dated 13.04.2010 regarding upgradation of ACRs issued consequent upon directives of the Honble Supreme Court in the case of Dev Dutt versus Union of India (supra), inter alia, provides for communication of all below benchmark ACRs to employees concerned for making their representations, if they so desire. We also take note of para 8.2 of the General Guidelines for filling up the PAR Form, which provides as under:-
8.2 Representation The officer reported upon may have the option to give his comments on the PAR. Such comments may be restricted to the specific factual observations contained in the Performance Appraisal Report leading to the assessment of the officer in terms of attributes, competency and output. If comments are submitted, the competent/Reviewing Authority would have the option to accept them and modify the PAR accordingly. If the comments are not accepted, the views of the Reporting/Reviewing/ Competent Authority would be communicated with reasons to the officer reported upon. Thereafter, only if the officer reported upon so desires, he may request for the matter to be forwarded to the Referral Board. The representation shall be confide to errors of facts and nothing else. The Referral Board shall give clear findings on the representation and take a final decision on the assessment, including the overall grading in regard to the parameters affected thereby. The decision along with details, in case an entry is upgraded, reasons for same may be recorded in the PAR and the same be communicated to the officer reported upon. The decision of the Referral Board shall be final. Para 8.3 of the Guidelines further provide constitution of the Referral Board, which reads as under:-
8.3. The referral board shall be constituted as under:-
xxx xxx xxx
(f) In case of Group A Officers whose reviewing officer is any member other than Chairman, CBDT:
(i) Chairman, CBDT Chairman
(ii) Two senior most members Member Of the Board other than the Reviewing officer.
33. We find that there are number of conflicting OMs/Circulars, claims and counter claims. The basic issue here is as to how representations of officers are to be decided. It is a basic principle of law that when the APAR is being written under the Guidelines provided in the APAR form itself, the Guidelines have to prevail unless otherwise deleted by a specific reference made by the Competent Authority. Paras 8.2 and 8.3 of the aforesaid Guidelines are quite clear as to what procedure would be adopted in case of Group A officers whose reviewing officer is any Member other than the Chairman, CBDT and a constitution of the Referral Board has also been invited. On the other hand, the recruitment rules provide for consideration of representations of officers regarding upgradation of ACARs by the Selection Committee. We further find that OM dated 13.04.2010 provides for consultation with the reporting and reviewing authorities before deciding representations. However, OM dated 16.06.2010 provide that the instructions contained in OM dated 13.04.2010 are only applicable for promotion within the Department. As a consequence of this, the responsibility for considering the representations devolves upon the Selection Committee.
34. Now the only question that we are faced with is that whether the deliberations of Selection Committee made in the minutes of the meeting dated 14.02.2011 would have an overriding effect upon the provisions of APAR. In our opinion, the provisions of APAR had been issued to all at large and, therefore, constitute a provision in rem. The persons filling up APAR form are aware and confident that this is the manner in which their representations, if any, will be disposed of. In the instant case, the Selection Committee has taken a decision to delegate powers to the Revenue Secretary for disposing of representations. This contradiction can only be reconciled by holding that the representations relating to APAR have to be decided as provided in para 8.3 of APAR guidelines. The Selection Committee has no right to annul the provisions in the APAR form and if at all it is to be decided that representations against the APAR for upgradation are to be decided by the Revenue Secretary, then the change has to be incorporated and provided in the APAR form. Moreover, it has also to be incorporated in the communication to the concerned officers by which the last ten ACRs are conveyed. However, we also take note of the fact that the main prayer of referring the matter to the Referral Board is missing from the prayer clause. However, the Tribunal is free to take a logical construct flowing from the provisions under any other clauses of the prayer. We choose to strongly apply the decision in the matter of Bhavnagar University versus Palitana Sugar Mills Pvt. Ltd. and Others [2003(2) SCC 111] wherein the Honble Supreme Court has held that the statutory interdict of use and enjoyment of the property must be strictly construed. 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 creatures of statute. They must act within the four-corners thereof. This is supported by the decision in the case of Raja Ram Pal versus Honble Speaker, Lok Sabha & Others [2007 (3) SCC 184]. We, therefore, deem it proper that the Competent authority would construe what has been provided in para 8.3 (f) of the APAR form.
35. In view of our above discussions and on the basis of the above decisions, we can safely hold that consideration of representations of the applicant dated 19.12.2012 is without due application of mind, arbitrary and capricious particularly in context of the ACR for the period 2008-09 and the same would run through all other ACRs in respect of which representations filed have been considered and disposed of by the same or the successive transactions. Therefore, we dispose of the instant Original Application with the following directives:-
(i) Impugned orders dated 20.03.2013, 25.04.2013 and 28.09.2010 passed by respondent no.1 communicated vide letters dated 01.04.2013, 03.05.2013 and 08.08.2013 respectively are quashed.
(ii) We direct that the representations filed by the applicant in respect of his ACRs under challenge, which have been rejected by the respondents vide the impugned orders, be considered afresh as per the guidelines provided under provision 8.3 (f) of the APAR form.
(iii) The exercise, as ordained above, be completed within a period of three months from the date of receipt of a copy of this order.
(iv) There shall be no order as to costs.
(Dr. B. K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/