Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary To The ... on 3 April, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Order reserved on: 03.03.2017
Order Pronounced on: 03.04.2017
ORIGINAL APPLICATION N0. 520-HR-2013
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
Sunil Kumar Gulati, IAS, (1984 Batch Haryana Cadre), aged 52 years, s/o late Sh. Dyal Parshad Gulati, R/o 7/5, Bhagwan Dass Road, New Delhi, presently working as Chief Vigilance Officer, Delhi Development Authority, Ministry of Urban Development, Govt. of India, New Delhi.
...Applicant
Argued by: Shri R.K. Sharma , Advocate
VERSUS
1. Union of India through Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi.
2. State of Haryana through Chief Secretary to Government of India, Haryana Civil Secretariat, Chandigarh.
..Respondents
By Advocate: Shri Ram Lal Gupta for respondent No. 1.
Shri Samarveer Singh, DAG, Haryana for State of Haryana (Respondent No. 2.
ORDER
BY HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) The applicant in this OA is a 1984 batch IAS officer of Haryana cadre. He has filed this OA to seek his empanelment as Joint Secretary/Additional Secretary in Government of India, which he has been denied during the initial process of empanelment in 2005 followed by first review of the process in 2008 and the second review in 2010. He claims that he has been unsuccessful in getting empaneled on account of below benchmark ACR gradings of the year 1991-92 and 1992-93 and part of the year 1994-95.
2. The reliefs he has sought in this OA are reproduced below: -
i) Quash order No. 30/02/2013-351 dated 29.03.2013, copy Annexure A-1, whereby representation of the applicant for review/ up-gradation of the ACR of the applicant for the year 1991-92, 1992-93, 1994-95 have been rejected by passing a non-speaking and cryptic order.
ii) Declare the down graded entry in the ACR for the year 1991-92, 1992-93 and second part of ACR for the year 1994-95 without recording reasons, as non-est and first part of ACR for the year 1994-95 to be OUTSTANDING with further directions to the Respondent No. 1 to conduct a special review for empanelment of the applicant, after completion of his record for central deputation to the post of Additional Secretary or Additional Secretary equivalent in the Government of India, ignoring the non-est entries for the year 1991-92, 1992-93 and 1994-95, by taking into consideration his ACRs for the last 12 years i.e. 1999-2000 to 2012-13.
3. During the course of the hearing of this OA, several interlocutory orders were passed for just and proper adjudication of the matter. On 01.012.2015 the following order was recorded by this Tribunal: -
1. Controversy involved in this O.A is with regard to the ACRs remarks for the year 1991-1992, 1992-1993, 1993-1994, 1994 -1995. It is one of the contentions at the hands of the applicant that those ACRs were never communicated to him. Learned counsel for the applicant submitted that it was only when the case of the applicant was considered for empanelment to the post of Joint Secretary, then for the first time, he came to know that he was having below bench marks ACRs for those years.
2. Learned counsel for the applicant submitted that through out the service career of the applicant, his service record was out standing except three years and also for subsequent years too. For the year 1992-93, when he made the representation against the adverse remarks, those were expunged by the reviewing authority and a communication was made to the Government of India for upgrading those ACRs.
3. Sh. R.K. Sharma, learned counsel for the applicant submitted that there is no provision under Rule formulation for seeking approval from Government of India, once competent authority has decided to upgrade the ACRs. With regard to the years i.e. 1991-92, 1993-1994 & 1994-1995, he submitted that since it was not earlier communicated, in view of the latest law laid down by their lordship in case of Devdutt Vs. Union of India and others, (2008) 8 SCC 725, subsequently followed in case of Sukhdev Singh v. Union of India and others, 2013(9) SCC 566, the applicant has a right to make a representation against those below bench marks ACRs.
4. Counsel for the respondent-State of Haryana submitted that since they have already communicated the decision with regard to the year 1992-1993 and same couldnt be challenged by the applicant at this stage; therefore, his contention is to be rejected. He submitted that since there was no provision under law for conveying the below bench mark at that time, therefore, it was not communicated but now because of change of law if those below bench mark entries are not shown to the delinquent officer, then, he has a right to make a representation against those. In view of the changed law, certainly, applicant has the right to make representation against those ACRs.
5. Considering the above submission and the law on the subject that case of the applicant was not approved by the Government of India for empanelment as Joint Secretary solely on the ground that he was having below bench remarks in ACR for noted three years and in terms of the law laid down in case of Dev Dutt (supra), subsequently followed by this court in various orders i.e. O.A No. 060/00315/2014 (titled Krishan Kumar Vs. U.O.I & Ors. decided on 30.04.2015), serving officer has a right to make representation against those ACRs, therefore, if the applicant wishes to make a representation for the ACRs of 1991-1992, 1993-1994 & 1994-1995 years he may do so within period of one week from today, then, the respondents are directed to decide the same within a period of four weeks thereafter by considering the same objectively in accordance with law and same may not be dismissed on the ground of delay.
6. With regard to the up-gradation of ACRS of the year 1992-1993, the State of Haryana is directed to show the provision under the law for referring the matter to the Government of India for approval for up gradation of ACRs and also shows that there is no provision under the All India Services for upgradation of ACRs after making representation.
7. Let Government of India also clarify the issue on the communication dated 15.12.1997 whereby Deputy Secretary, Government of India, Ministry of Department of Personnel and Training, (office of the Establishment officer) has rejected the request of the State of Haryana for up-gradation of ACRs.
8. Dasti.
9. List on 19.01.2016. On 25.04.2016 the following order was passed:
1. Learned counsel for respondent No.2 seeks and is allowed to place on record documentation relating to disposal of request of the applicant for upgradation / expunction of ACR gradings/ remarks. He submits that in furtherance of the orders of this Court dated 1.12.2015 the competent authority, after providing an opportunity of hearing to the applicant, has upgraded the ACR gradings for the years 1991-92 and 1992-93 from Good to Outstanding and declared the ACR for the year 1994-95 as Nonest and in that view of the matter, this O.A. has been rendered infructuous.
2. However, learned counsel for the applicant submitted that he has also prayed for issuance of directions to the Government of India for empanelment of the applicant as Additional Secretary and therefore, such relief may also be granted to him. The learned counsel opposed this for the respondents pleading that applicant can take separate recourse for such relief.
3. Learned counsel for the applicant submitted that in any case the relief qua empanelment would be a D.B. matter and cannot be adjudicated upon by a Single Bench.
4. List on 27.5.2016. On 23.08.2016, the following order was recorded:
1. Learned counsel for the applicant very fairly submitted that in view of the decision by the Government of Haryana to upgrade ACR of the applicant for the years 1991-1992, 1992-1993, 1994-1995, his first prayer has become infructuous. The sole prayer which remains is for issuance of a direction to respondent No. 1 i.e. Government of India to conduct special review for empanelment of applicant to the post of Additional Secretary or Additional Secretary equivalent in the Government of India, in view of the changed circumstances.
2. Sh. Ram Lal Gupta, learned counsel for respondents seeks four weeks time so that he can have the instructions from the concerned quarter as to when they will consider the case of the applicant for empanelment in Government, as per procedure established by the Government of India. Granted.
3. List on 23.09.2016.
4. Dasti.
4. On 19th August, 2016, respondent No. 2, Government of Haryana wrote to respondent No. 1, Department of Personnel, Government of India informing them that the Government of Haryana has decided to upgrade ACRs of the Officer for the year 1991-92 and 1992-93 from Good to Outstanding and declare the ACRs for the year 1994-95 as non-est. The relevant part of this letter is reproduced below: -
On 21.12.2015, Shri S.K. Gulati, IAS filed representation as per directions of the Honble Tribunal with the request he may be given special hearing before the Honble Chief Minister, Haryana who is the competent authority in the matter and the officer was heard by the Honble Chief Minister, Haryana on 21.04.2016 and decided to upgrade ACR of the officer for the year 1991-92 and 1992-93 from Good to Outstanding and declare the ACRs for the year 1994-95 as non-est. This action was conveyed to the officer on 22.04.2016 with a copy to EO, GOI, DOPT.
5. In view of this letter the relief to the extent that related to up gradation of his ACRs was redressed by respondent no 2 i.e. the State of Haryana. Accordingly the applicant amended his OA and confined his relief to holding a special review of his case for empanelment as Joint Secretary/Additional Secretary in Government of India i.e. respondent no 1 taking into account his now upgraded and non-est ACRs, which the applicant claims entitles him to be empanelled as Joint Secretary and Additional Secretary for a posting in Government of India.
6. These interlocutory orders were neither contested nor challenged by the respondents.
7. In view of the above fact that the Haryana Government has upgraded the ACRs in question, it is unnecessary to discuss the details of this part of prayer and no useful purpose will be served by elaborating on the background of the officer, his career record and the reasons for his getting adverse entries, or below bench mark gradings etc. which would have had a bearing on his claim of up gradation of ACRs.The fact remains that following the Haryana Governments decision to upgrade his ACRs of 1991-92 and 1992-93 and declaring the entry in 1994-95 the officer has as of now no below bench mark ACR grading in his service record. The issue that needs adjudication now is whether in the light of this development, his claim for a special review to consider his case for empanelment as Joint Secretary/Additional Secretary is legally tenable and should be granted?
8. Respondent No. 1 (UOI) has refuted the claim of applicant for holding special review for empanelment of applicant as Joint Secretary/ Additional Secretary or equivalent post of Additional Secretary in the GOI by filing counter affidavits dated 02.02.16, 07.11.2016 and 16.02.2017. It is stated in these affidavits that the up gradation of grades in the ACRs of applicant for the period 1991-92 and 1992-93 from Good to Outstanding and declaring ACRs for the period 1994-95 as non-est by the State Govt is against the rules. It is stated that there is no provision in the All India Service (CR) Rules, 1970 that govern writing of these ACRs, for up gradation of ACRs. As per Rule 8(1) of the AIS (CR) Rules, 1970 (Annexure MA R-1) only the adverse remarks recorded in the ACRs together with substance of the entire CR was to be communicated to the concerned officer. It may be seen therein that there is no provision for up gradation of grading. Subsequently this department vide instructions dated 19.4.2005 (Annexure MA R-2) had clarified that where an adverse entry in the ACR was communicated to the member of the service, the overall grading was not to be communicated. It was further clarified that even if the entire adverse remarks of the Reporting/Reviewing/Accepting Authorities were expunged by the Government, the overall grading was to remain unchanged. In view of the CAT, Hyderabad Benchs order dated 4.12.2008 in O.A. No. 665 of 2006; DOPT issued a letter letter dated 4.12.2009 (Annexure MA R-3) that provides that where an entry is adverse it should be communicated to the member of the service along with the overall grading. It was further provided in the letter dated 4.12.2009 that if the adverse remarks of Reporting/Reviewing/Accepting authorities are expunged by the Govt. the overall grading be kept blank for appropriate re-grading by the Empanelment Committee/ DPCs. Thus, basically only expunction of adverse remarks was provided in the rules and there was no provision for upgradation of overall grading.
9. It is further stated that completion of ACRs (renamed as Performance Appraisal Report (PARs) w.e.f. the financial year 2007-08) of IAS Officers was governed by All India Service (Confidential Rules) 1970 till the year 2006-07 when the revised AIS (PAR) Rules, 2007 came into effect. The AIR (CR) Rules, 1970 had statutory status and were applicable to all IAS officers including those working in their cadre in various states. It is established legal position that any amendment to the statutory rules, unless specifically provided in the amending rules, the relevant period are governed by the AIS (CR) Rules, 1970, which were in force at the material time. The provision of communicating ACRs/PARs grading to the concerned officer has been introduced w.e.f. Financial year 2007-08 vide notification dated 14.03.2007 issued by DOPT. The case of applicant for appointment as Joint Secretary was initially considered in 2005 when the ACRs up to 2001-02 were considered and he was not empanelled. On availability of two more ACRs after 2001-02, his case was again taken up for 1st review in 2008 when the ACRs in respect of the officer up to 2003-04 were considered, however, he was not empanelled. The applicant earned two more ACRs after 2003-04. His case was again taken up for 2nd review in 2010 when the ACRs up to the period 2006-07 were considered and not found suitable for empanelment. The said ACRs were for the period during which AIS (CR) Rules, 1970 were applicable. It is submitted that unlike promotion, empanelment is done on the basis of inter-se- merit of the officers of a batch based on their suitability subject to some ceiling and also subject to adequate representation to different categories. As such empanelment is not a promotion but more of suitability of a candidate for the post. Further there is a mechanism for assessment of ACRs by an expert Panel that recommends upgrading/downgrading of an ACR based on achievements of the officer during the particular period and the comments/grading given by Reporting Officer/Reviewing Authority/Accepting Authority. The applicant has been considered thrice by the Experts Panel i.e. at the initial stage and then at the review stage twice, however, he has not been found suitable for empanelment at Joint Secretary level. Thus all available opportunities of initial consideration with the entire batch, 1st review and 2nd review have been provided to him. As per the empanelment guidelines for additional Secretary/equivalent, if an officer is not empanelled as Joint Secretary he cannot be considered for Additional Secretary/equivalent empanelment. It is also stated that as per Para 11 of the Central Staffing Scheme, a special review may be made in case his ACRs undergo any material change. Since the State Govt.s order upgrading the ACRs of the applicant is in contradiction to the AIS (CR) Rules, 1970, the respondent No. 1 has humbly submitted that the ACRs have not undergone any material change, and therefore, the question of special review in respect of the petitioner does not arise.
10. The applicant filed rebuttal to the counter affidavit filed by respondents dated 07.11.2016 reiterating the grounds and relief claimed in the O.A. It is pleaded that decision making authorities of the State Govt. have considered the representations received after 2007 and taken a view by applying their mind based on the new rules and hence it cannot be said that their decisions are/will be covered by the old Rules. The applicant relied upon Apex Court judgments in U.P. Jal Nigam & Others Vs. Prabhat Chandra Jain & Ors. JT 1996 (1) S.C. 641 and State of U.P. Vs. Yamuna Shanker Misra and Another, JT 1997 (4) SC 1 regarding downgrading and writing of the ACRs in the present case. There cannot be two sets of Rules i.e. one for case originating before 2007 and one for new cases. Even the Govt. of India cannot ignore the orders of State Govt. of April 2016 and August September 2014 which are very much in line with the new rules and they cannot be declared ultra-vires simply because they pertain to cases before 2007. It is pleaded that the ACRs of the applicant have been upgraded in the year 2014 & 2016 necessitating the conducting of the special review of empanelment and the interpretation of the respondent No. 1 is not legally sustainable. It is submitted that the case of the applicant was earlier considered on the basis of old record, which has undergone a material change now and thus necessitating the special review for the post of Additional Secretary.
11. The applicant in his submissions before us has placed reliance in support of his claim on the following judgments in addition to judgments indicated herein above by him.
i). Dr. Parveen Chopra Vs. Union of India and Ors. O.A. No. 253-HR-2010 decided on 13.10.2010 (Annexure A-9 with the O.A.)
ii). Tejdeep Kumar Menon Vs. UOI & Another O.A. No. 665 of 2006 decided on 04.12.2008 by CAT Hydeabad Bench.
iii) Dev Dutt VS. Union of India & Ors. JT 2008(70SC 463)
iv) Anil Kumar Sharma Vs. UOI & Ors. O.A. No. 98 of 2012 decided by Principal Bench of CAT
v) Rakesh Behari, IAS Vs. UOI & Another WP (C) 5663/2012 decided on 23.05.2013 and
vi) Rakesh Srivastava Vs. UOI & Ors. O.A. No. 4080/2011 decided CAT, Principal Bench, New Delhi.
12. The respondent No. 1 has filed additional affidavit dated 12.02.2017 by way of rebuttal to rejoinder filed by the applicant, controverting the pleas taken by the applicant in the rejoinder and O.A. and have largely reiterated their position stated in their earlier affidavits.
13. We have heard the learned counsel for the parties, perused the case file and given our thoughtful consideration to the matter.
14. The issue that needs adjudication now is whether in the light of the fact that respondent No. 2 i.e. Government of Haryana has upgraded his ACRs pertaining to the years 1991-92 and 1992-93 as outstanding and declared the ACR of 1994-95 as non-est, the applicants claim for a special review to consider his case for empanelment as Joint Secretary/Additional Secretary is reasonable, in conformity with the rule position in this regard and in consonance with the law on this subject and therefore should be granted?
15. Respondent no 1 have resisted the applicants prayer and have raised three major issues opposing his prayer. Their first major objection is that they consider the up gradations effected by Haryana Government in the applicants ACRs for 91-92 and 92-93 in contravention of the Government of Indias instructions in this matter, which they claim has a statutory status. As has been discussed in earlier paragraphs, their stand is that there is no provision either in the All India Service (CR) Rules, 1970 or in the instructions issued thereon through which the ACRs of IAS officers are governed, to upgrade the grading in the ACR of the applicant for the period 1991-92 from Good to Outstanding and declaring ACRs for the period 1994-95 as Non-est by the State Government. Further, in so far as the ACR for the period 1992-93 is concerned, as per Rule 8(1) of the AIS (CR) Rules, 1970 (Annexure MA-R-1/1), only the adverse remarks recorded in the ACRs together with the substance of the entire Confidential Report was to be communicated to the concerned officers and that there is no provision for up gradation of grading. Subsequently, this Department vide instructions dated 19.04.2005 (Annexure MA-R-1/2) had clarified that where an adverse entry in the ACR was communicated to the member of the Service, the overall grading was not to be communicated. In view of the order of Hyderabad Bench of this Tribunal dated 04.12.2008 in OA No. 665 of 2006, DOPT Vide its letter dated 04.12.2009 (Annexure MA-R-1/3), it was further clarified that even if the entire adverse remarks of the Reporting/Reviewing/Accepting Authorities were expunged by the Government, the overall grading was to remain unchanged. It was further provided in the letter dated 04.12.2009 that if the adverse remarks of Reporting/Reviewing/Accepting Authorities are expunged by the Government, the overall grading be kept blank for appropriate re-grading by the Empanelment Committee/DPCs. Thus, it is their clear view that the ACRs of the applicant have been upgraded in contravention of rules in this regard.
16. Their second objection is that the case of the applicant cannot be taken up for a fresh review as he has already exhausted the three opportunities available in the empanelment guidelines. They have stated that the Joint Secretary level empanelment process is held at initial stage for all officers in a batch eligible for consideration as per guidelines. The first review of this process takes place after addition of two more ACRs for those not empanelled at the initial stage and second review after addition of two more ACRs for those not empanelled at first review stage. The 1984 batch of IAS Officers was assessed for Joint Secretary level at initial stage in 2005 as per empanelment guidelines prevailing at that time and accordingly, the applicant like his batch mates, was assessed for Joint Secretary level empanelment and was also considered for empanelment under old procedure of empanelment on three occasions, initial, first and second review. But he was not approved for Joint Secretary level empanelment as he had secured less than three Very Good grading from the Screening Committee on each occasion. It is the submission of respondent No. 1 that as the applicant has exhausted all the three chances of assessment available under the empanelment guidelines, thus, there can be no dispute that he was given a fair chance and therefore, his prayer for a fresh review for empanelment is not acceptable. As regards the empanelment of the applicant as Additional Secretary since he was not found eligible for being empanelled as Joint Secretary, which is a pre-requisite for empanelment as Additional Secretary, he could not be empanelled as Additional Secretary.
17. The third objection that the respondent no 1 has raised is that for a special review, there must occur material changes in the ACRs of the officer. Since in this case, the up gradation of ACRs is ab initio wrong and unacceptable being against the rule position in this regard, therefore, these up gradations do not amount to material changes in the applicants ACRs and consequently not permissible under empanelment guidelines.
18. The most significant objection raised by respondent no 1, thus, is that the up gradation of the ACRs of the applicant is in violation of the 1970 rules and instructions emanating from these rules. The other objections, in fact, flow from this objection.
19. We do not, in the light of the law on this issue, accept the arguments of the respondent no 1 in support of these objections and do not agree with their stand in this matter. To begin with, the aforestated stand of respondent No.1 completely disregards two significant and material aspects. Firstly they have not taken into account the fact that the consideration for applicants up gradation has taken place following the Tribunals directives. These directives have not been questioned, contested, opposed or challenged by respondent no 1 even though they were party to all the interlocutory orders including the one giving the direction for considering the up gradation of his ACRs. They cannot now raise the issue that such up gradation was against the rules and therefore impermissible. If they were certain that the up gradation cannot be done as it is against the 1970 rules and instructions flowing out of the same, they should have raised this objection when this order was being passed or soon thereafter.
20. Next, and this, in our view, is the more significant omission on the part of respondent no 1 to declare these up graded ACRs against the rules and therefore not acceptable and thus justifying not holding a fresh review, is to completely disregard the ratio of law laid down by the Apex Court in C.A. No. 7631 of 2002, Devdutt Vs. Union of India and others, (2008) 8 SCC 725. In their judgment dated 12.5.2008. Therein, the Court had held as follows: -
48. 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 Committee (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. This judgment followed by more judgments including the judgment in Sukhdev Singh v. Union of India & Others, (2013) (9) SCC 566 have in the years following these judgments changed the practice of not communicating below bench-mark entries in the ACRs and profoundly altered the way ACRs were considered for promotions. Now, the communication of below bench mark entries in the government servants service record became mandatory if such ACRs were to be considered for his promotion. As mentioned above, several judgments following the Dev dutt judgment have further crystallized and strengthened the above ratio of law enunciated in Dev Dutt case. This judgment came in 2008. The Government of India by their own admission introduced the practice of communicating ACR gradings from the year 2007-08. Therefore, for the review conducted in 2010, irrespective of the rule position with regard to permitting any up gradation, respondent no 1 should have followed the law of the land established by then, and all below benchmark entries to be considered in the 2010 review should have been communicated to the applicant. This was not done. The applicant had to come to this Tribunal and pray that the Government of Haryana be directed to decide his representation for up gradation of his ACRs whose grading he has come to know after his unsuccessful consideration of empanelment as Joint Secretary. And now that these gradings fulfill the bench mark criterion, respondent no 1 is raising the issue of these up gradations not being as per the rules. To allow such a stand will be clearly violative of the law on this issue. As a matter of fact, the second review held in 2010, much after Dev Dutt judgment is liable to be set-aside only on the ground that this review took into account those ACRs of the applicant, which were below benchmark but were not communicated to the applicant.
21. The other legal question that arises in this context is whether under the rules, the Government of India can question a certain up gradation made by the state government in the ACRs of the officer belonging to that state cadre and declare the same as violative of rules and therefore, not accept the same. Undisputedly, the applicant belongs to Haryana Cadre, which is his parent cadre, and for all intents and purposes, he is covered by All India Service Rules and such Rules of Haryana Government, which are applicable to officers belonging to IAS. The writing of ACRs, their acceptance etc. take place as per guidelines existing in this regard and when the officer is working in the cadre, the accepting officer for the ACRs of IAS Officers is usually the Chief Minister. At no point of time, the reporting officer/reviewing officer/accepting officer is required to consult Government of India at the time of recording of the remarks.
22. In their affidavit dated 2.2.2016 on the specific issue of the authority of GOI to refuse or not accept such up gradation, the Director in DoPT Shri Anand Madhukar has stated as follows: -
That it is humbly submitted that the State Government refers the ACRs of IAS officers to the DoPT only for taking them on record and placing them on the ACR dossier of the officer concerned as the Department of Personnel & Training, being the Cadre Controlling Authority for IAS officers, is the custodian of their ACRs/PARs. It is at this stage that DoPT, Government of India, being the custodian of ACRs of IAS officers & the competent authority to frame Rules, scrutinizes & point out deficiencies, if any, in the orders passed by various State Governments. The communication dated 15.12.1997 by the DoPT to the Government of Haryana was accordingly to point out that the upgradation done by the State Government was not permitted under the rules extant at the material time and was therefore not in order. Being the custodian as well as the authority to frame rules for IAS officers, the DoPT was well within its rights to point out to the State Government that the upgradation carried out by them in the ACR of Shri Gulati for the year 1992-93 did not have the sanction of the rules in force at that time. (emphasis added) The question then arises is whether following the communication dated 19th August, 2016 sent by Haryana Government bringing to the notice of DoPT the fact of the up gradation of applicants ACRs pertaining to 91-92 and 92-93 as also declaring the grading in his 94-95 ACR as non-est, the DoPT has responded by pointing out to Haryana Government that such up gradation is against the rules and therefore not acceptable? The subsequent affidavits filed by respondent no 1 on 7.11.2016 and 16.2.2017 do not seem to suggest that any such communication has been sent to Haryana Government. If, as mentioned by the respondent no 1 in its affidavit of 2.2.2016 that such a communication was, in deed, sent to Haryana Government in 1997 when the up gradation in the ACR of two officers namely the applicant and Shri Y.S. Malik was objected to on the same ground and the state government was advised to restore the original grading.
23. By their own admission, the respondent no 1 is a mere custodian of the ACRs. The dictionary meaning of the word custodian is a person who has responsibility for taking care of or protecting something. The Cambridge Dictionary defines custodian as a person with responsibility for protecting or taking care of something or keeping something in good condition. In none of the definitions of the word custodian a right is vested in the custodian to sit in judgment on the contents of the records assigned to him for safe keeping. It can certainly point out to the owner of the document, in this case Haryana Government, about the rules prevailing in this regard but it cannot on its own decide to take the ACR grading as unacceptable because it feels that it is against the rules. It is up to the Haryana Government to decide what the final gradation in the ACR should be and whether the same has been done as per the rule in this regard. In this case the Haryana government has clearly stated that the ACRs stand upgraded and therefore, there is no way DoPT can now sit in judgment and refuse to accept and process it further.
In our considered view, an up gradation or expunging an adverse remark or expunging an overall grading of an officer of IAS while working with the State Government is entirely in the domain of State Government. In our understanding, in the existing scheme of things, the Government of India cannot reject or overrule any such up gradation. However, it is certainly open to the Committee of experts, which deliberates over the empanelment of officers as Joint Secretaries/Additional Secretaries to evaluate the ACRs and take a decision with regard to their propriety and correctness or otherwise. It is certainly open to the Committee considering the empanelment to observe that certain up gradation of ACRs or expunction of remark or expunction of an overall grading has been done by the State Government in contravention of the existing rules. Even the instructions dated 19.04.2005 (in paragraph 2(ii)) pointedly indicate that the discretion of accepting, upgrading or downgrading the ACRs must rest with the Empanelment Committee. This para is reproduced as under: -
2(ii) Even if the entire adverse remarks of Reporting/Reviewing/Accepting Authorities are expunged by the Government, the overall grading shall remain unchanged. However, the Empanelment Committee or the Departmental Promotion Committee, as the case may be, shall take due note of such expunction and may re-determine the overall grading for the period in question if it considers that the expunction of the adverse remarks has so altered the quality of the ACR as to merit regarding.
24. Therefore, we do not think that DoPT can sit in judgment over the validity of ACRs including their up gradation of IAS Officers who are in the State Cadre and on their own, decide that any such up gradation is acceptable or otherwise, and therefore not process it for further consideration where required. It should be left to the discretion of the Empanelment Committee to take a view in this matter, which the Committee is bound to do keeping the law and court rulings on this issue.
25. The respondent No. 1 has rejected the prayer of the applicant for a fresh review because three opportunities have already been granted to the applicant, but the fact remains that on all these three occasions, the ACRs available to the Committee deliberating over empanelment, have been subsequently upgraded. It is our view that an Officer cannot be penalized for the delay by the Government in taking a final view on the up gradation of ones ACR. If the ACRs on account of which the officer was declared Unfit for empanelment, have subsequently been upgraded and this deficiency has been made good by the process of this up gradation, it should be in the interest of justice to consider his case afresh for empanelment. The practice of holding first and second review is part of administrative process and is not sanctified by any rules. As has been pointed by the applicant in his OA, there are a plethora of cases that this administrative practice of first and second review has been relaxed. Many of these have happened because of judicial intervention but many have happened entirely as an administrative decision. Therefore, this plea that once the first and the second reviews have taken place, no more reviews can take place, is not acceptable.
26. The affidavits of the respondent no 1 repeatedly state that the up gradation of grading in the ACRs of Shri Gulati in question done by the State Government is not in consonance with the AIS(CR) Rules, 2007 and the instructions dated 19,04.2005 and dated the 4th December, 2009. Special Review as stated above is not a routine exercise and is limited to cases where some material change is recorded in the ACRs included in the assessment as a result of officers representation being accepted. Since the up gradation of gradings of ACRs of Shri Gulati recommended by the State Government is not in accordance with the AIS (CR) Rules, 2007 and the instructions dated 19.04.2005 and dated 04.12.2009, therefore, they do not qualify for being considered as material change. If we accept this line of logic of respondent, there is, in deed, no change in the ACRs in question, let alone a material change. But this line of logic is obviously in complete disregard of the law in this matter. Respondent No 1 are still claiming that Haryana Government has recommended the up gradation of ACRs as if GOI, under the rules, approves and carries out the up gradation. As discussed above, GOIs stand that they are the ultimate arbiter in any matter regarding the ACRs of IAS officer and that the decision of the state governments in this matter can be unilaterally brushed aside and rejected is not in accordance and consonance of law and rule position in this regard. The up gradations as carried out in respect of ACRs of the applicant is clearly material and offer a convincing justification for a Special Review. Since the respondents have rejected the case of empanelment as Additional Secretary on the ground that he has not been empanelled as a Joint Secretary, once his case for empanelment as Joint Secretary is to be reconsidered by way of a special review, there is full justification for consideration of his empanelment as Additional Secretary as well, if the special review considers him fit for empanelment for the position of Joint Secretary in GOI.
27. In view of the discussion above, the OA is allowed. We direct respondent No. 1 to conduct a special review for empanelment of the applicant as Joint Secretary/Additional Secretary taking into consideration his ACRs and their gradings as they exist today. This review shall be carried out by the respondent no 1 within a period of three months from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(UDAY KUMAR VARMA) MEMBER (A) (SANJEEV KAUSHIK) MEMBER (J) Dated: 03.04.2017 ND* 23 OA No. 520/HR/2013