Central Administrative Tribunal - Delhi
Shri P.S. Verma vs Union Of India on 11 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 247/2013 Reserved On:25.11.2013 Pronounced on:11.12.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Shri P.S. Verma S/o Late Shri Ram Verma Aged 59 years Working Assistant Director, Directorate (Medical) Delhi ESI Dispensary Complex, Tilak Vihar, New Delhi. .Applicant By Advocate: Shri Lalita Prasad. Versus 1. Union of India Through Secretary, Ministry of Labour (Govt. of India) Shram Shakti Bhawan, New Delhi-110001. 2. Director General (Headquarter) Employees State Insurance Corporation, Panchdeep Bhawan, CIG Road, New Delhi-110002. 3. Director, Directorate (Medical) Delhi, Employees State Insurance Scheme, ESI Dispensary Complex, Tilak Vihar, New Delhi-110018. ..Respondents By Advocate: Shri Ankur Chhibber. ORDER
Honble Mr. G. George Paracken, Member (J) The Applicant in this Original Application is aggrieved by Annexure A-1 (colly) order dated 27.12.2011 by which the competent authority has considered and rejected his representation dated 05.12.2011 for upgradation of overall grading Average given in his APARs for the years 2007-08 and 2008-09 and the subsequent Annexure A-1 (colly) Office Order dated 29.12.2011 by which the competent authority has ordered the promotions of 68 officers in the grade of Dy. Director in PB-3 Grade Pay of Rs.5400/-.
2. The brief facts of the case are that the Respondent-ESIC proposed to fill up 68 posts of Dy. Director on the basis of seniority-cum-fitness. Applicant was also one of the candidates considered for the aforesaid post by the DPC on 29.12.2011. The Respondent No.3, vide its letter dated 25.11.2011, informed him that his APARs for the years 2007-08 and 2008-09 contained the below bench mark grading of Average and copies of them have been furnished to him with the direction to submit his representation against the, if any, within 7 days. Thus, the aforesaid APAR for the year 2007-08 was communicated to him after a delay of 3 years 1 months and 7 days and the APAR for the year 2008-09 was communicated to him after 2 years and 5 months. In the subsequent APAR for the year 2009-10, he was given the grading Very Good which is at par with the bench mark for the post of Dy. Director. The Applicant made representation against the aforesaid APARs for the years 2007-08 and 2008-09 on 05.12.2011 but the competent authority rejected the same vide the impugned order dated 27.12.2011 and communicated the same to him on 16.01.2012. In the said representation he has stated that after reading the APARs for the period 2007-08 and 2008-09 which were made available to him on 30.11.2011 he got surprised to see that in both of them he was given the Average grading and it was to mar his career at the behest of some other person. The said APARs have not been written after seeing his past record. But it was to take revenge on him by Mr. Din Dayal who was his Reporting Officer. He was in the habit of stopping payment of his bills. When Shri Din Dayal joined the office of Director (Medical) Delhi he took charge of Third Party Bills, Local Chemist Bills and Security Guard. He was also keeping the bills under his control which was earlier used to be dealt with by the Branch Officer. The Applicant has also submitted that he was given charge of only Accounts Section-I and Section-II. Accounts Section-III and IV were given to Mrs. Premlata Bajaj. Mr. Din Dayal used to clear the bills himself and create problem for the parties till he retired from service. This fact was known to all the persons working in the office of the Director (Medical) Delhi but no action was taken against him. The Applicant has also stated that in the APAR 2007-08, there is no indication when it was written but it was written after 30th June and it was reviewed on 23.10.2008 whereas it should have been reviewed by 31st August 2008. Moreover, the officer who reviewed the APAR for 2007-08 has done it as just formality as she was not aware about his work. In part 3 of the said report, in para 1K, it has been mentioned that he was in the habit of taking frequent leaves which was contrary to the facts whereas on many occasions when Mrs. Prem Lata Bajaj was on leave he had handled the work of all the four units independently. In Part B, paras 1 to 5, the following remarks have been given:-
Para 3 - He does not try Para 6 I Needs guidance Part-IV - Disciplined some extent Para 7 Not so good.
According to the Applicant, all the remarks given in the said APAR were not true and the reason for making such remarks was that as a Physically Handicapped person he refused to get posted in the Audit as ordered by Mr. Din Dayal. Hence all the entries made in his APAR are not true. For the APAR 2008-09 also the aforesaid facts are applicable. However, in the APAR for the year 2009-10 he was graded as Very Good keeping in view his performance. Had he not been doing his job sincerely, he would not have been given Very Good grading for the year 2009-10. Hence, his request was that the APARs for the years 2007-08 and 2008-09 also required to be upgraded. However, his representation was considered by Joint Director E-1, ESIC (HQ) who did not consider any of his aforesaid submissions. Moreover, when the Reviewing Officer for the aforesaid APARs was Director (F) HQ and Director (Medical), Delhi respectively, his representation against those gradings in the aforesaid ACRs has been considered by a lower functionary, namely, the Joint Director.
3. In this Original Application also, the Applicant has submitted that the aforesaid APARs were reviewed by incompetent authorities. His contention is that the Reporting Officer purposely and deliberately sent his APAR for the year 2007-08 to Headquarters Office which had no knowledge about his performance and conduct. As regards the APAR for the year 2008-09 is concerned, the same has been communicated to him along with APAR for the year 2007-08, i.e., after delay of 2 years and 5 months. The said APAR was reviewed by Ex-Director (Medical) Delhi, i.e., Dr. (Mrs.) K. Tyagi. She was there for only 3 months and subsequently retired. In terms of G.I.D.P. & A.R. OM No.51/3/74-Estt.(A) dated 22.05.1975 para (i) Reporting, reviewing and endorsing officer should have been acquainted with the work of official reported upon for at least 3 months during the period covered by confidential report. Thus both his two APARs for 2007-08 and 2008-09 were not reviewed by the competent Reviewing Authorities. Further, he has stated that those APARs were communicated to him as a formality just 28 days before the date of holding of the DPC and the Respondents hurriedly rejected his representation dated 05.12.2011 on 27.12.2011 and it was conveyed to him only on 16.01.2012. According to him, the competent authority was pre-determined to reject it, and he has not given any reasons for doing so.
4. The learned counsel for the Applicant has challenged the aforesaid action of the Respondents stating that it was against the principles laid down by the Apex Court in Dev Dutt Vs. Union of India and Others AIR 2008 SC 2513. The relevant part of the said order reads as under:-
41. In our opinion, non-communication of entries in the Annual Confidential Re-port of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Divi-sion Bench.
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the 'good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation.If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.
44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Com-mittee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.
45. With these observations this appeal is allowed. No costs.
5. He has also submitted that the aforesaid action of the Respondents was in violation of the principles laid down by the Apex Court in Abhijit Ghosh Dastidar Vs. U.O.I. and Another 2009 (16) SCC 146 wherein it has been held as under:-
8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case ((2008) 8 SCC 725: (2008) 2 SCC (L&S) 771: (2008) 7 Scale 403), SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
6. He has also referred to the common judgment of the Honble High Court of Delhi in W.P. (C) 5042/2002 - U.O.I & Another Vs. V.S. Arora and & Others etc., W.P. ( C) No.606/2012 Union of India and Another Vs. Govind Jha and Another, W.P. ( C) No.3298/2011 Union of India and Another Vs. R.N. Kurmi and Others and W.P. ( C ) No.3300/2011 Union of India and Another Vs. A.K. Verma and Others, wherein it was held as under:-
24.Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC shouldconsider the CRs of the years preceding the period in question and if in any case even these are not vailable, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above.
7. Union of India, Petitioner in one of the aforesaid Writ Petitions, namely, CWP No.3298/2011 challenged the aforesaid order before the Apex Court vide SLP ( Civil) 1857/2013 (CC 23481/2012) but the same was dismissed vide judgment dated 14.1.2013 having its operative part as under:-
Respondent No.1 joined service as Assistant Executive Engineer in 1977. He was promoted as Executive Engineer in 1987 and as Superintending Engineer in 2001. He was considered by the DPC held in 2008 for the post of Additional Chief Engineer against the vacancies of the year 2007-08 but his name was not included in the list of selected candidates apparently because he could not meet the prescribed benchmark in his ACRs.
OA No.847/2008 filed by the respondent was disposed of by the Central Administrative Tribunal (for short, 'the Tribunal') vide order dated 1.12.2008 by directing the concerned authority to communicate the ACR and consider his case afresh after disposal of the representation.
The issue was again considered by the three-Member Bench of the Tribunal and vide order dated 14.5.2010 the direction given earlier was reiterated. In the meanwhile, RA No.146/2009 filed by the respondent was allowed and the matter was revived for fresh consideration. After the disposal of matter by the three-Member Bench the Tribunal disposed of the original application of respondent No.1 and directed that his case to be considered as per order dated 14.5.2010.
The petitioners challenged the last mentioned order in Writ Petition No.3298/2011. They relied upon order dated 8.8.2010 passed by two- Judge Bench of the High Court in Union of India v. Krishna Mohan Dixit WP(C) No.6013/2010 and pleaded that the un-communicated remarks cannot be ignored while considering the case of an employee for promotion on the basis of merit.
By the impugned order the Division Bench dismissed the writ petition. While doing so, it took cognizance of the judgments of this Court in Dev Dutt v. Union of India (2008) 8 CC 725, Satya Narain Shukla v. Union of India 2006 (5) SCALE 627, K.M. Mishra v. Central Bank of India (2008) 9 SCC 120, Abhijit Ghosh Dastidar v. Union of India (supra) and order dated 24.11.2009 passed in Civil Appeal No.5319/2003 Union of India v. J.S. Garg, order dated 29.11.2010 passed in Union of India v. Ranjana Kale SLP(C) No.29929/2010 and order dated 16.3.2012 passed in Civil Appeal No.6937/2011 Union of India v. N.K. Bhola. The Division Bench also took cognizance of the fact that Sunil Mathur's case (SLP(C) No.7623/2011) was dismissed on 24.1.2012 in the light of the judgment in Abhijit Ghosh Dastidar (supra) and held that there is no valid ground to interfere with the order of the Tribunal.
In our view, after having accepted and implemented the judgment in Abhijit Gosh Dastidar's case (supra) and agreed for disposal of other similar matters in terms of the judgment of larger Bench, the petitioners cannot seek annulment of the order passed by the Tribunal.
The Special leave petition is accordingly dismissed.
However, six weeks' time is allowed to the petitioners to implement the order of the Central Administrative Tribunal, Principal Bench, New Delhi as modified by the High Court.
8. He has also relied upon the latest three Bench judgment of the Apex Court in C.A. No.5892/2006 Sukhdev Singh Vs. Union of India and Others decided on 23.04.2013. The relevant part of the said judgment reads as under:-
6. We are in complete agreement with the view in Dev Dutt particularly paragraphs 17, 18, 22, 37 & 41 as quoted above. We approve the same.
7. A three Judge Bench of this Court in Abhijit Ghosh Dastidar vs. Union of India and others followed Dev Dutt. In paragraph 8 of the Report, this Court with reference to the case under consideration held as under:
Coming to the second aspect, that though the benchmark very good is required for being considered for promotion admittedly the entry of good was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having very good in the previous year. In those circumstances, in our opinion, non- communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries good if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
8. In our opinion, the view taken in Dev Dutt that (2009)16 SCC 146 every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR poor, fair, average, good or very good must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others and K.M. Mishra vs. Central Bank of India and others and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.
10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law.
11. I.A. No. 3 of 2011 for intervention is rejected. It will be open to the applicant to pursue his legal remedy in accordance with law.
9. The Applicant has, therefore, prayed for a direction to the Respondents to ignore the APARs for the years 2007-08 and 2008-09 and pursuant to the judgments of the Apex Court as well as of the High Court of Delhi, to promote him also as Deputy Director from the date his juniors have been promoted. He has also sought a cost of Rs.1,75,000/- on the Respondents for pushing the Applicant who is a Physically Handicapped person to the court.
10. In reply, the Respondents have submitted that in the APAR of the Applicant for the years 2007-08 and 2008-09 the overall grading given by the Reporting Officer and Reviewing Officer was only Average. The post of Dy. Director, being a Group A in PB-3 Rs.15600-39100 with Grade Pay of Rs.5400/-, as per the Recruitment Rules, the mode of promotion is selection and in terms of DOP&T instructions issued vide OM dated 08.02.2002, the bench mark is Good. He has also stated that in terms of OM dated 20.05.1972, only adverse entries in the APARs were to be communicated to the officer concerned. Hence, there was no need to communicate the aforesaid grading in the APARs of the Applicant for the years 2007-08 and 2008-09. It is only vide OM dated 14.05.2009, the DOP&T has issued instructions that full APAR (previously ACR) including the overall grading and assessment of integrity shall be communicated to the concerned officer to provide opportunity to make any representation against adverse entries and final grading of the report within 15 days from the date of receipt of APAR. Thereafter, the DOP&T further issued instructions dated 13.04.2010, inter alia, stipulating that if an employee is to be considered for promotion in future DPC and his ACRs prior to the period 2008-09, which would be reckonable for assessment of his fitness in such future DPCs, contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. Further, according to the said Memorandum, 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 aforesaid instructions were circulated by the ESI Corporation vide letter dated 22.5.2009 and letter dated 14.05.2010 respectively. Accordingly, the copies of the APARs for the years 2007-08 and 2008-09 were given to the Applicant vide letter dated 17.11.2011 for making representation, if any. Applicant submitted his representation on 05.12.2011. The comments of the Reporting and Reviewing Officer of both the years were not called for as they had already retired from the service of ESIC. After careful analysis of the concerned ACRs of the Applicant, the competent authority disposed of the representation of the Applicant vide order dated 27.12.2011 by deciding that overall grading of Average given to the Applicant in the years 2007-08 and 2008-09 does not require any interference. On 28.12.2011, a meeting of the Screening Committee was held to consider the cases of officers in the grade of Assistant/Director/Manager Grade-I/section Officer for promotion to the cadre of Dy. Director on ad hoc basis. The Screening Committee considered the suitability of all officers for adhoc promotion to the post of Dy. Director including that of the Applicant. However, the Screening Committee assessed the Applicant unfit for the said post of Dy. Director.
11. The learned counsel for the Respondents Shri Ankur Chhibber has submitted that the law on the subject has been settled by the Honble Supreme Court in the case of Sukhdev Singh (supra) wherein all earlier judgments on the point of downgradation of ACRs has been considered and thereafter held as follows:-
8. In our opinion, the view taken in Dev Dutt that (2009)16 SCC 146 every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR poor, fair, average, good or very good must be communicated to him/her within a reasonable period.
12. He has also submitted that the Honble High Court of Delhi in an earlier judgment in Union of India and Others Vs. Swati S. Patil in W.P. ( C) No.4018/2011 decided on 01.04.2013 wherein the Honble Division Bench has held as follows:-
14. Our attention was drawn to an opinion dated May 31, 2012 in a batch of writ petitions, lead matter being W.P.(C) No.5042/2002 UOI & Anr. Vs. V.S.Arora & Ors. wherein a Division Bench of this Court has opined to the contrary i.e. the view taken by a Division Bench of this Court Krishna Mohan Dixits case.
15. The said decision by the Division Bench traces the chronology of decisions, which actually are orders, passed by various benches of the Supreme Court after the decision in Dev Dutts case and Abhijit Ghosh Dastidars case. With reference to the decision in Abhijit Ghosh Dastidars case the Division Bench opined, in para 15 of its opinion as under:-
15.. The Supreme Court did two things. First of all, it affirmed the view taken by Dev Dutt (supra) to the extent that non-communication of an ACR would be arbitrary and would be violative of Article 14 of the Constitution. Secondly, it concluded that such entries which are not communicated should not be taken into consideration for being considered for promotion to the next higher grade. Thus, while Dev Dutt (supra) has been affirmed by the Supreme Court in Abhijit Ghosh Dastidar (supra) on the first aspect, as regards what has to be done with a non-communicated below benchmark ACR, the Supreme Court in Abhijit Ghosh Dastidar (supra) took the view that such an ACR ought not to be considered.
16. We note that the Division Bench which has authored the opinion in V.S.Aroras case has overlooked para 37 of the opinion of the Supreme Court in Dev Dutts case. The Division Bench has overlooked that there is not conscious reasoning in Abhijit Ghosh Dastidars case as to what should happen when the Reporting and the Reviewing as also the Accepting Authority have retired. In fact, the decision in Abhijit Ghosh Dastidars case does not even record the fact that the Reporting, Reviewing or Accepting Authority had retired. Noting, in the brief order, which forms the decision in Abhijit Ghosh Dastidars case, that as per Dev Dutts case below benchmark ACR gradings were required to be communicated, noting further that Abhijit Ghosh Dastidar had superannuated from service, the Supreme Court directed his notional promotion from the date the person junior to him was promoted. Thus, to read into the decision of the Supreme Court in Abhijit Ghosh Dastidars case a reasoning that if the Reviewing and/or Accepting Officers have retired, the below benchmark ACR gradings have to be ignored, would be to read something into the decision which does not exist. And said imaginary reasoning would then result in an apparent head on conflict of the law declared in para 37 of the opinion in Dev Dutts case (supra) and the decision in Abhijit Ghosh Dastidars case (supra).
17. In ordinary course we would have settled the question of law and referred the matter to a larger Bench, for we note a presumptive reasoning read by the Division Bench while reflecting upon the law declared by the Supreme Court in Abhijit Ghosh Dastidars case and on said presumptive reasoning, read an opinion expressed contrary to the view expressed by a Division Bench in Krishna Mohan Dixits case as to the reading of the two decisions in Dev Dutts case (supra) and Abhijit Ghosh Dastidars case (supra), but we do not do so for the reason as regards the facts of the instant case we find that the law applicable is as declared by the Supreme Court in Kashi Nath Khers case (supra), which decision deals with the situation as to what should be done with incomplete ACR gradings i.e. where the ACR proforma has been filled up only by the Initiating/Recording Officer and not countersigned by the Reviewing and/or the Accepting Officer.
13. We have heard the learned counsel for the Applicant Shri Lalita Prasad and the learned counsel for the Respondents Shri Ankur Chhibber. As far as communication of the ACRs for the years 2007-08 and 2008-09 is concerned, we do not find any fault on the part of the Respondents as they were only following the law laid down by the Apex Court in the judgments in Dev Dutts case (supra), Abhijit Ghosh Dastidars case (supra) and the latest one in Sukhdev Singhs case (supra). But the other grievance of the Applicant is that the aforesaid APARs were reviewed by incompetent authorities. It is seen that during the year 2007-08, he was working as an Assistant Director (Finance). His Reporting Officer was Joint Director (Finance). The said ACR was reviewed by the Director (Finance) Headquarter. Again for the year 2008-09, the Reporting Officer was the same Joint Director (Finance). But this time, it was reviewed by another officer, namely, the Director (Medical) who was there for only just 3 months from 01.01.2009 to 31.03.2009. The Applicants contention is that since he was posted under the Director (Medical) during the period 2007-08, his ACR for the aforesaid period should have been reviewed by the said officer and not by the Director (Finance) Headquarter who was not at all acquainted with his work. As far as the ACR for the year 2008-09 is concerned, the Respondents have got it reviewed by the Director (Medical) under whom he worked only for 3 months from 01.01.2009 to 31.03.2009 and she was also not acquainted with his work during that short period. Therefore, the Respondents should have got his said ACR reviewed by the officer under whom he worked for the longer period of 9 months there should have been two separate ACRs for the said year, i.e., first for the first nine months and next for the subsequent three months. In any case, they should not have got it reviewed by an officer who was not acquainted with his work and conduct of the Applicant. We find merit in the aforesaid contention of the Applicant. His Reviewing Officer can be either Director (Finance) or Director (Medical). It cannot be both. The Reviewing Officers cannot be chosen by the Reporting Officers at their will. In this regard, the Applicant has made a detailed representation to the Director (Medical) Delhi on 05.12.2011. However, the said representation was considered by a comparatively lower rank officer, namely, Joint Director, ESIC. Moreover, the said officer has not considered any of the points raised by the Applicant in the said representation. We also observe that when the Reviewing Officer of the Applicant for the year 2008-09 was Director (Medical) Delhi, he should have addressed his representation to a higher officer. When the said representation was received by the Respondents, at least, it should not have been got considered by a lower functionary. They should have either advised the Applicant to submit his representation to the higher authority or they should have forwarded it to the higher authority. In para 37 of the judgment in Dev Dutts case (supra), the Apex Court has emphasized the need for considering the representation of the employee concerned by an authority higher than the one who were his Reporting and Reviewing Officers. Otherwise it would amount to a representation against Caesar to Caesar. The said paragraph may be profitably reproduce as under:-
37. We further hold that when the entry is communicated to him the public ser-vant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair man-ner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the like-lihood is that the representation will be summarily rejected without adequate con-sideration as it would be an appeal from Caesar to Caesar. All this would be condu-cive to fairness and transparency in public administration, and would result in fair-ness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
14. In view of the aforesaid facts and circumstances, we are of the considered view that the Respondents have not treated the Applicant in a fair manner. If the Applicants contention that he was working under the Director (Medical), Delhi during the year 2007-08 is correct, his APAR for the said period should not have been reviewed by the Director (Finance) Headquarters who did not have any knowledge about the work and conduct. Further, it is seen that the APAR for the entire period of 2008-09 was reviewed by the Director (Medical), Delhi whereas she was there only for 3 months. There was no review of the work done by him for the earlier 9 months of the year. The Applicant has also made allegations against his Reporting Officer for the aforesaid two years. None of the aforesaid submissions made by the Applicant have been considered by the Respondents in the impugned letter dated 27.12.2011. There is no explanation as to how only for the two years in question the performance of the Applicant was below bench mark. Moreover, we observe that the said impugned order is cryptic one without containing any valid reasons. We, therefore, remit this case to the Respondents with the direction to place the representation of the Applicant before the appropriate higher authority, i.e., an authority above the Director (Medical) Delhi. The Applicant is also at liberty to make a comprehensive representation addressed to competent authority within one month from the date of receipt of a copy of this order. Thereafter, the competent authority shall reexamine the case of the Applicant and take appropriate decision in the matter under intimation to him within one month thereafter. In case, after reconsideration, the aforesaid APARs are upgraded to the bench mark or above, the Respondents shall take the consequential action as required under the rules.
15. With the aforesaid directions, this OA is disposed of. No costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh