Central Administrative Tribunal - Delhi
Shri Ajay Kumar Singh vs Union Of India on 30 March, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 1105/2014 Reserved on: 03.11.2014 Pronounced on:30.03.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri Ajay Kumar Singh S/o late Shri D.S. Singh, R/o Flat No.6, Type 5, DCP South Office Complex, Hauz Khas, New Delhi. Applicant (By Advocate: Sh. Ravi Prakash with Sh. Nitish Gupta) Versus Union of India, Home Secretary, Ministry of Home Affairs, North Block, New Delhi. Respondent (By Advocate: Sh. Rajeev Kumar) O R D E R By Dr. B.K. Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 impugning the order dated 14.03.2014 passed by the respondent to the effect that the Screening Committee in its meeting held on 27.02.2014 found the applicant unfit for promotion to the higher grade and the competent authority accepted the recommendation of the Selection Committee.
2. The applicant has prayed for the following relief(s):-
(i) Quash/set aside of Order No.14040/16/2013-UTS-I (Pt.I) dated 14.03.2014 passed by respondent;
(ii) Direct the respondent to convene a review DPC and consider the applicant for promotion to the rank of Additional Director General of Police [hereinafter referred to as ADGP] from the date his immediate junior was promoted, and pass a reasoned other thereto;
(iii) Award consequential reliefs;
(iv) Award cost of litigation; and/or
(v) Pass any other order (s) or direction(s), which this Honble Tribunal may deem fit and proper in the light of the facts and circumstances if the instant case as well as in the internet of justice.
3. The case of the applicant, in brief, is that he is an IPS officer of 1984 batch allocated to AGMUT cadre, and is presently posted as Joint Commissioner of Police at Delhi. The applicant submits that he has distinguished career of 29 years behind him, and insofar as he is aware, his ACRs are above benchmark. It is his case that in the year 2011, the DPC considered him along with four of his batch-mates for promotion to the rank of ADGP. His name figured at sl. No.3 in the list of seniority list. However, while three of his batch-mates including juniors in terms of inter se seniority were promoted to the rank of ADGP, he was ignored. It was informally disclosed to the applicant that some of his ACRs were missing. It is further the case of the applicant that in the year 2012, two DPCs were held for promotion to the rank of ADGP wherein the applicants case was considered but he was again not promoted whereas his juniors from 1985 and 1986 batches were promoted. On 15.04.2013, fourth DPC was convened for promotion to the rank of ADPG which again overlooked the case of the applicant to favour IPS officers of 1987 batch, several years junior to the applicant.
4. Aggrieved, the applicant filed OA No. 2729/2013 before this Tribunal, which was allowed vide order dated 24.12.2013 with a direction to the respondents to conduct an in-house enquiry and to hold a review DPC. The case of the applicant is that the Screening Committee in its meeting dated 27.02.2014 considered his case and found him unfit for promotion.
5. The applicant has challenged the impugned order on the following grounds:-
(i) The applicant has been an outstanding officer throughout his career. Most of his ACRs have been either Very Good or Outstanding to the best of his knowledge. No adverse remarks have been communicated to him to the date of filing of the instant OA. Though he has been commanded for his work by various authorities, yet he has been superseded repeatedly in the years 2011, 2012 and 2013 when officers, admittedly several years junior to him, have been promoted over his head.
(ii) No reasons have been assigned for his being declared unfit for promotion in all the DPCs.
(iii) Even if there was something adverse against the applicant, the same should have been communicated to him and in absence of communication, such adverse ACRs as per the decision in Dev Dutt versus Union of India & Others [2008 (8) SCC 725] cannot relied upon in the DPC.
(iv) The applicant has relied upon the decision of the Honble Supreme Court in Balkishan versus Delhi Administration [AIR 1990 (SC) 100] to contend that no junior shall be confirmed or promoted without having considered the case of the senior.
(v) The applicant is clear from vigilance angle.
6. The respondent has filed counter affidavit stating that the applicant was considered in the DPC held on 30.03.2011 but was not recommended on account of deferred for want of ACARs. The applicant was again considered on 23.02.2012 and his case was again deferred for want of ACRs. The Screening Committee in its meeting held on 18.04.2013 again considered the applicant along with officers of 1987 batch and noted that though the ACRs for the year 2008-09, 2009-10 and 2011-12 had been received but ACRs for the period 2006-07 and 2007-08 were still missing. It has been further averred that the ACRs for the period from 01.04.2006 to 31.03.2007 and 01.04.2007 to 21.11.2007 were received from Government of Mizoram on 24.05.2013, but the Part-I of the above mentioned ACARs were found to be incomplete as there was no page having signatures on behalf of the Home Department. It was also found that neither the officer reported upon nor the reporting, reviewing and accepting authorities had put the date while recording their remarks. In this regard, the respondent Ministry had sought clarification from Govt. of Mizoram on 29.05.2013 regarding date of supplying the ACR to the officer reported upon, the date of submission of ACR by the officer reported upon and dates of recording of remarks by the reporting, reviewing and accepting authorities. It is the case of the respondent that the case of the applicant was again considered in compliance to the orders of this Tribunal dated 24.12.2013 by the Screening Committee held on 27.02.2014, but he was found unfit for promotion, which has been accepted by the respondent Ministry as communicated vide the impugned order.
7. The applicant has relied upon the following cases in support of his claim:-
(i) Badrinath versus Government of Tamil Nadu & Others [2001 (1) SCC 13];
(ii) Union of India and Another versus A.K. Narula [2007 (11) SCC 10];
(iii) Syed T.A. Naqshbandi and Others versus State of Jammu & Kashmir and Others [2003 (9) SCC 592];
(iv) Union of India & Others versus Lt. Gen. Rajendra Singh Kadyan and Another [2000 (6) SCC 698].
8. We have carefully gone through the pleadings available on record as also the documents submitted by rival parties. We have also considered the oral arguments advanced by the learned counsel for both the parties. In our view, the only issue to be determined in the instant OA is as to whether the case of the applicant for appointment as ADGP has been considered properly in the review DPC held on 27.02.2014?
9. In this regard, it is well accepted that the applicant has a right to be considered for appointment as per the decision in Union of India & Others versus Hemraj Singh Chauhan & Others [2010 (4) SCC 290]. However, it is not that the Tribunals/Courts are totally barred from going into the proceeding of DPCs and determining as to whether the consideration has been fair consideration. The Honble Supreme Court in Union of India versus A.K. Narula (supra) held as under:-
15. The guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court will not interfere (vide State Bank of India v. Mohd. Mynuddin [1987 (4) SCC 486], Union Public Service Commission v. Hiranyalal Dev [1988 (2) SCC 242] and Badrinath v. Government of Tamil Nadu [2000 (8) SCC 395]). The review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R S Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1.4.1987 to 31.3.1988 from 'good' to 'very good', the overall grading of the respondent continued to remain as 'good'. There was no question of moving him from the block of officers with the overall rating of 'good' to the block of officers with the overall rating of 'very good' and promoting him with reference to the DPC dated 13.6.1990. In the absence of any allegation of mala fide or bias against the DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to respondent, as was done in the case of R. S. Virk.
10. In yet another case titled as Badrinath versus Government of Tamil Nadu & Others (supra), the Honble Supreme culled out the basic principles on the basis of which the courts/tribunals are to consider prayer for intervention, relevant portion whereof is extracted hereunder:-
59. From the above judgments, the following principles can be summarised :
(1) Under Article 16 of the Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideration' for promotion that is important but the consideration must be 'fair' according to established principles governing service jurisprudence.
(2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury Principles or was it mala fides.
(3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.
(4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.
(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed. In this very judgment, the Honble Supreme Court held that it is not within the ambit of Tribunals/Court to issue mandamus either to promote the employee to super-time scale or to assess his gradings. However, relying upon the decision in Comptroller & Auditor General of India versus K.S. Jagannathan [1986 (2) SCC 679], the Honble Supreme Court upheld the powers of the High Courts while exercising their jurisdiction under Article 226 to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on relevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring discretion or the policy for implementing which such discretion has been conferred. In such cases and any other fit and proper case, the High Court can, in the exercise of its jurisdiction under Article 226, issue a writ and direct the authority to perform in a proper and lawful manner of the discretion conferred upon it.
11. In Syed T.A. Naqshbandi and Others versus State of Jammu & Kashmir and Others (supra), it is provided that judicial review is permissible only for finding whether the process in reaching the decision has been observed correctly or the discretion has been exercised equitably in respect of all the members considered.
12. It is to be noted that the Government have carefully provided the time schedule for preparation/completion of APAR(Reporting Year-Financial Year), which is being extracted hereunder:-
TIME-SCHEDULE FOR PREPARATION/COMPLETION OF APAR (Reporting Year-Financial Year) Sl.No. Activity Date by which to be completed 1 Distribution of blank APAR 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 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 accepting authority.
(b) Disclosure to the officer reported upon where there is accepting authority 1st 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 6th 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
13. In the instant case, as not much was emerging from the pleadings as to why the case of the applicant was found unfit in the meeting of the DPC held on 27.02.2014, the records of the case were summoned from the respondent Ministry and have been duly considered. It appears from perusal of the official file that the gradings of the ACRs of the applicant are as given below:-
ACR YEAR PERIOD OF ACR REPORTING REVIEWING ACCEPTING REMARKS 1986-87 25.08.86 to 31.3.87 Not received Not received Not received 1987-88 01.04.87 to 27.07.87 NA NA NA 1987-88 28.07.87 to 31.03.88 Very Good 12.5.1988 Very Good 13.05.1988 Good
-
1988-89 01.04.88 to 31.03.89 Good 19.05.1990 Good 12.06.1990 Good
-
1989-90 01.04.89 to 31.03.90 NRC
-
NRC
-
NRC
-
1990-91 01.04.90 to 31.03.91 Very Good
-
Very Good 27.9.1995 Very Good 08.01.1996 1991-92 01.04.91 to 15.10.91 Very Good
-
Very Good 27.09.1995 Very Good 28.04.1995
-
1991-92 16.10.91 to 31.03.92 Very Good
-
NRC 10.03.2000 NRC 13.06.2000 1992-93 01.04.92 to 31.03.93 NRC
-
NRC
-
NRC
-
1993-94 01.04.93 to 31.03.94 Good 13.10.1998 Good 26.10.1998 Good
-
1994-95 01.04.94 to 05.10.94 Good 13.10.1998 Good 26.10.1998 Good
-
1994-95 06.10.94 to 31.03.95 Very Good 08.01.1996 NRC
-
Very Good
-
1995-96 01.04.95 to 18.09.95 NRC
-
NRC
-
NRC
-
NIC 1995-96 19.09.95 to 31.03.95 Good
-
Good 22.06.1997 Good
-
1996-97 01.04.96 to 31.03.97 Very Good 08.05.1998 Very Good 06.06.1998 Very Good 07.11.1998 1997-98 01.04.97 to 31.03.98 NRC NRC NRC NIC 1998-99 01.04.98 to 31.03.99 NRC NRC NRC 1999-00 01.04.99 to 26.12.99 NRC NRC NRC 1999-00 27.12.99 to 31.03.00 NRC NRC NRC NIC 2000-01 01.04.00 to 31.03.01 NRC NRC NRC 2001-02 01.04.01 to 31.03.02 NA
-
Good 09.06.2004 NRC 25.06.2004 2002-03 01.04.02 to 30.06.02 NA
-
Good 09.06.2004 Very Good 03.09.2004 2002-03 01.07.02 to 10.02.03 NRC NRC NRC 2003-04 01.04.03 to 20.07.03 Very Good 03.02.2004 Very Good 26.06.2004 NRC
-
2003-04 21.07.03 to 31.01.04 Outstanding 01.07.2004 Very Good 01.07.2004 NRC 2004-05 01.04.04 to 01.09.04 Very Good
-
Very Good 28.06.2006 Very Good
-
2004-05 02.09.04 to 31.03.05 Outstanding
-
Very Good 28.06.2006 Very Good 28.06.2006 2005-06 01.04.05 to 01.08.05 Outstanding 20.06.2006 Very Good 22.06.2006 Very Good
-
2005-06 06.09.05 to 31.03.06 Very Good 19.06.2006 Very Good 21.06.2006 Very Good
-
2006-07 01.04.06 to 31.03.07 Very Good (Time Barred) 26.09.2013 Very Good (Time Barred) 26.09.2013 Very Good (Time Barred) 26.09.2013 Remarks recorded by the reporting, reviewing & accepting authorities are treated as non est. 2007-08 01.04.07 to 21.11.07 Very Good (Time Barred) 26.09.2013 Very Good (Time Barred) 26.09.2013 Very Good (Time Barred) 26.09.2013 Remarks recorded by the reporting, reviewing & accepting authorities are treated as non est. 2007-08 22.11.07 to 31.03.08 Not Received
-
Not Received
-
Not Received
-
2008-09 01.04.08 to 31.03.09 Time Barred
-
Time Barred
-
Time Barred
-
Time Barred as the officer had submitted his self appraisal late 2009-10 01.04.09 to 31.03.10 (08) Time Barred 16.12.2012 NRC 01.02.2013 Time Barred 12.02.2013 Remarks recorded by reporting is non est, reviewing & accepting demitted. Self appraisal late submitted. 2010-11 01.04.10 to 31.03.11 (08) Time Barred 16.12.2012 NRC 01.02.2013 Time Barred 12.02.2013 Remarks recorded by reporting is non est, reviewing & accepting demitted. Self appraisal late submitted. 2011-12 01.04.11 to 31.03.12 (07) Time Barred 12.12.2012 (07) Time Barred
-
Time Barred 12.02.2013 Accepting Section is treated as time barred. Self appraisal late submitted. 2012-13 01.04.12 to 08.10.12 9
-
NRC 31.12.2012 NRC 19.08.2013 Reviewing and accepting authority has demitted office 2012-13 19.10.12 to 31.03.13 7
-
717.10.2013 NRC 04.12.2013 Time barred for acceptance
14. It appears from the above gradings that in the year 2012-13 the applicant secured 7 points - equivalent to Very Good category, but in the remarks column it is mentioned time barred for acceptance by the accepting authority. It is to be noted from the additional column, which has been introduced by us in the above table while examining the case of the applicant, that though the applicant had submitted his CRs in time in the year 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12 and 2012-13 still they have been treated as time barred at one level or the other. It is to be remembered in this regard that the employee is only responsible for submission of his ACRs in time but he cannot compel his assessing officers to review or accept the same in time. It is the responsibility of the employer to have the self-appraisal assessed by the reviewing and accepting authorities.
15. From the above narrative, we find that the DPC has not laid down any guidelines under which the cases are to be considered. For instance, the number of ACRs to be considered; in case the ACRs have been marked as time barred whether they were submitted in time but the reporting, reviewing and accepting authorities defaulted in recording their assessment; What were the parameters considered in each of these cases; and on what grounds the case of the applicant has been rejected while we find that some of the officers considered have been found fit. We reiterate that normally in DPC proceedings, the DPC lays down the parameters/yardsticks on the basis of which it is going to consider the cases before it. This has not been done in the instant case. Therefore, we have no hesitation in holding that consideration of the case of the applicant has not been either good or proper. However, since other cases are not before us, we only confine ourselves to the applicants case.
16. We find that the Ahmedabad Bench of this Tribunal in A.P. Srivastava versus Union of India & Ors [OA No.673/2004 decided on 09.01.2007] has culled out the following principles on the issue of writing of ACARs, which are extracted hereunder for better clarification:-
(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.
17. The Screening Committee held the applicant unfit but no specific reasons have been assigned as to why he has been declared unfit. The respondents have already been reprimanded by this Tribunal vide order dated 24.12.2013 passed in OA No.2729/2013 with cost of Rs.5,000/- to the applicant. The order of the Tribunal reads as under:-
14. We have found in the continuous stream of events that in three years consecutively, the applicant was considered and rejected on the same ground, i.e., non-availability of ACR. It is the duty of the respondents to provide the ACRs to the DPC. Therefore, there had been consistent failure on part of the respondents. We, therefore, direct the respondents to conduct an in-house enquiry and find out the reasons for failure and to take appropriate action. In cumulatively, the OA is allowed with the above directions with a cost of Rs.5,000/-.
18. Though not stated, it appears from the DPC proceedings conducted on 15.04.2013 that it was ACR which acted as the main hindrance to promotion of the applicant. It further appears from perusal of the Chart that the entire service period of the applicant was being considered for his next promotion. In this regard, we have carefully scrutinized his ACR/APAR position as has been summed up in the Chart in para 12 of this order. We find that for some of the years, for instance, for the year period 01.04.2003 to 20.07.2003, the reporting and reviewing authorities have rated the applicant Very Good while the report of the accepting authority is not available. Likewise, for the period 21.07.2003 to 31.01.2004, he was graded Outstanding and Very Good by these two authorities and for 01.04.2004 to 01.09.2004, he was graded Very Good by the reporting, reviewing and accepting authorities whereas for the period 02.09.2004 to 31.03.2005, he was graded Outstanding by the reporting authority and Very Good by the reviewing and accepting authorities; for 01.04.2005 to 01.08.2005, he was graded Outstanding by the reporting authority and Very Good by the reviewing and accepting authorities whereas for the period 06.09.2005 to 31.03.2006, he was graded Very Good by all the three authorities; for the period 2006-07,we find that he had been graded Very Good by all the three authorities but his ACRs had been received on 26.09.2013 and has been recorded as time barred. However, we find that the remarks of the reviewing and the accepting authorities have been treated as non est without having stated the reasons. Likewise, for the period 01.04.2007 to 21.11.2007, he had again submitted his ACR forms on 26.09.2013 and, therefore, his entire ACR had been treated as time barred while for the remaining period of 2007-08, no self-appraisal form had been received and the same is the case pertaining to the period 2008-09. However, for the period 2009-10, again his ACRs were received on 16.12.2012 and had been treated as time barred as is the case in respect of 2010-11 and 2011-12. For the period 01.04.2012 to 08.10.2012, he was given 9 points, which is equivalent to Outstanding by the reporting authority but his ACRs were not recorded. At the same time, the dates had also been given when it was submitted to the reviewing and accepting authorities that being 31.12.2012 and 19.08.2013 respectively. Likewise, for the period 19.10.2012 to 31.03.2013, the applicant was awarded 7 points, which is equivalent to Very Good which was maintained by the reviewing authority but the accepting authority, who received the ACRs on 04.12.2013, had given NRC and it had been recorded time barred for acceptance.
19. This practice appears highly iniquitous and being against the employee. Assuming that the employee defaults in submission of his self-appraisal, the question that arises is that will his ACRs be considered to be non-reporting or the department has option to record their remarks in respect of the employee on the basis of his ACRs alone.
20. We find that in such an eventuality, there are four options open to the employer. We proceed to deal with them one by one. In the first instance, where the employee fails to submit his self-appraisal, the reporting authority will issue a reminder to him. Where he fails to submit his self-appraisal even within the period stipulated in the reminder, the reporting authority can call for a fresh ACR form and record his assessment without having the benefit of the statistical supplements and self-appraisal. Likewise, this benefit will also be available to the reviewing authority where there is no reporting authority. The DOP&T OM dated 23rd September, 1985 also provides the same instructions. However, for the sake of greater clarity, the relevant portion of the OM is reproduced hereinbelow:-
2. In regard to Item 2 in the time-schedule, it is clarified that a reporting officer should not wait till the expiry of the time-limit for self-appraisal of the officer to be reported upon. After the expiry of the first week, if self-appraisal is not received by that time, the reporting officer should take it upon himself to remind the officer to be reported upon in writing, asking him to submit the self-appraisal by the stipulated date. It should also be made clear in the reminder that if the officer to be reported upon fails to submit the self-appraisal by the stipulate date, the report will be written without self-appraisal. If no self-appraisal is received by the stipulated date, the reporting officer can obtain another blank CR form and proceed to write the report on the basis of his experience of the work and conduct of the officer reported upon. While doing so, he can also point out that the failure of the officer reported upon to submit his self-appraisal within the stipulated time. xxx xxx xxxx
4. The Administration or CR Section/Cell should not wait till the expiry of the time allotted to the reviewing officer for the completion of his part of the report. They shoud remind the reviewing officer at least 5 days before the expiry of the stipulated date for completing the CRs, if the completed CRs are not received by that time. If in spite of such reminders, the complete CR is not received by the stipulated time, the fact may be brought to the notice of the officer superior to the reviewing officer for taking appropriate action. xxx xxx xxxx
7. It shall the duty of the Administration or CR Section/Cell to keep a regular watch on the progress in the completion of CRs at different stages. If no intimation is received from the reporting officer regarding the submission of the CRs by him to the reviewing officer within 5 days after the expiry of the stipulated date for completion of his part of the CR, the matter should be taken up immediately with the reporting officer so that the report is submitted by him to reviewing officer without any further delay. Similar action should be taken if the complete report is not received from the reviewing officer. Any delay on the part of the reporting/reviewing officer, in spite of their being reminded as above, should be brought to the notice of the reviewing officer/officer superior to the reviewing officer, as the case may be.
21. In the second instance, where an employee submits his self-appraisal late, and if the reporting/reviewing/accepting authorities record their remarks, it is our considered opinion that it is within the power of the DPC to consider such ACRs. In the instant case, to treat this as time barred would imply that for the period there would be no ACR on record despite the fact that it has been recorded. Insofar as our experience goes, in most instances self-appraisals are submitted late yet ACRs are continued to be recorded and relied upon by DPCs/Selection Committees. In the instant case, this option was there with the DPC. However, the DPC has not applied itself and has merely relied upon the opinion of the Department that these periods are to be treated as no APAR period. The DPC would be fully competent to go into this factor and determine as to whether the ACR is to be taken on record or not if it has been treated as non-est or time barred.
22. In the third instance, where ACR has been submitted within time but the superior authorities have recorded their assessment after the dead line, it is for the accepting authority to take note of this fact and decide as to whether the ACRs should be placed on record or not. There is no hard and fast rule that any ACR being submitted or recorded after the due date will necessarily be treated as non est. The fourth option, of course, is that the entire ACR or part of it should be treated as non-est on account of late submission/late recording by the reviewing and accepting authorities. In such cases where the ACRs are not being taken on record, reasons have to be recorded.
23. Thereafter, what could have been done is that the Screening Committee should have considered the case of the applicant and passed a speaking order. We have already taken note of the fact that whereas the applicant has submitted his ACRs in time but could not be recorded by his assessing officers, it is not the fault of the applicant and, therefore, he cannot be penalized for the same. We find that continuously right from the year 2010 to 2013, i.e., on four different occasions, the case of the applicant has been considered but found unfit on account of his ACRs/APARs not being available as is evident from the minutes of the meeting of the Screening Committee held on 27.02.2014. In light of the fact that the applicant in majority of the cases had submitted his self-appraisal in time, we find that it acts like malice in law. In this regard, the Honble Supreme Court in State of Gujarat and Another versus Justice R.A. Mehta (Retired) and Others [2013 (3) SCC 1] held as under:-
58. Bias can be defined as the total absence of any pre-conceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to expect a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and submerge any private feelings with respect to each aspect of the case The apprehension of bias must be reasonable, i.e., which a reasonable person would be likely to entertain. Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim - nemo debet esse judex in causa propria sua. It applies only when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias.
24. In view of the afore discussions, we find that the decision of the Screening Committee held on 27.02.2014 is attended by lack of transparency and is not supported by reasons. Therefore, we have no hesitation in quashing the same with a direction that a fresh DPC should be convened to consider the case of the applicant for promotion to the post of Additional DGP. We have already noted that while dealing with the ACRs, the respondents have not followed the instructions for writing ACRs, inasmuch as if the ACRs were submitted late, they had the liberty to record the same, even if the statistical supplements were not supplied by the applicant. We find that the respondents have defaulted in their duty, for which the applicant cannot be held responsible. If the applicant had not submitted his ACRs within the stipulated time, it was the duty of the respondents to take appropriate action in accordance with rules. While considering the case of the applicant, the review Screening Committee, as have been directed to be convened, will also consider these facts as to what extent the ACRs submitted by the applicant have received a fair consideration, and whether the ACRs should have been placed on record in the light of observations made in this order. The meeting of the DPC should be held within a period of two months from the date of receipt of certified copy of this order and the respondents shall issue a final order within a further period of one month which shall be a speaking and reasoned order.
25. In the above terms, the OA stands disposed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/