Central Administrative Tribunal - Delhi
S.P. Shakarwal vs Central Public Works Department on 20 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3022/2012
New Delhi this the 20th day of August, 2015
Honble Mr. A.K.Bhardwaj, Member (J)
Honble Mr. V.N.Gaur, Member (A)
S.P. Shakarwal,
Superintending Engineer,
Central Public Works Department,
R.K.Puram, New Delhi. Applicant
( By Advocate Mr. Naresh Kaushik )
VERSUS
1. Central Public Works Department
Through Director General of Works,
CPWD, Nirman Bhawan,
New Delhi.
2. Ministry of Urban Development,
Through its Secretary (U.D),
Nirman Bhawan, New Delhi. Respondents
(By Advocate Dr.Chaudhary Shamsuddin Khan )
O R D E R
(Honble Mr. A.K.Bhardwaj, Member (J):
The prayer made in the present OA filed under Section 19 of Administrative Tribunals Act read thus:-
(1) Allow the present OA.
(2) Direct the respondents to upgrade the applicants below benchmark gradings for the period of 6.08.2007 to 31.03.2008 and 1.08.2008 to 31.01.2009 and accordingly consider him for promotion to the next higher post as per his seniority in the Seniority List dated 02.07.2012, in accordance with law and with all consequential benefits, flowing therefrom.
(3) Pass any other order or orders as this Honble Tribunal deems fit. Mr. Naresh Kaushik, learned counsel for the applicant espoused that while rejecting the representation made by applicant against the grading in the ACRs for the period 6.08.2007 to 31.03.2008 and 1.08.2008 to 31.01.2009, the concerned authority did not take into account the comments of the Director General, CPWD (Accepting authority) and passed a non speaking order. The further submission put forth by the learned counsel is that when the ACRs of the applicant for the previous years i.e. 22.09.2000 to 31.03.2007 were very good the grading in the ACRs in question could not be good.
2. On the other hand, Dr. Chaudhary Shamsuddin Khan, learned counsel for respondents espoused that for the period from 6.08.2007 to 31.03.2008, the officer had not furnished details of duties, targets and achievements in his self appraisal and the report of three authorities, i.e. reporting, reviewing and accepting is same. Regarding the grading for the period 1.08.2008 to 31.03.2009, he submitted that again for the said period also in his self appraisal, the applicant did not mention any target or achievements and whatever he could state in part-2 of the report was partially agreed by the reporting officer while the professional and technical competence had not been commented upon. According to the respondents, the self appraisal of the applicant about himself regarding his attributes was hardly impressive. It is also the stand taken by respondents in their reply that the decision taken in the representation of the applicant is quite fair as the grading in the ACRs of the applicant for the period 1.04.2005 to 31.08.2005 and 1.11.2006 to 31.3.2007 has been upgraded. With reference to certain judicial precedents laid by Honble Supreme Court, the respondents submitted that the Courts are not expected to play the role of an appellate authority or umpire in the acts and proceeding of the DPC and could not sit in judgment over the selection made by the DPC unless the selection is vitiated by malafides or arbitrariness. Para 9 (iii) to 14) of the reply filed by the respondents read thus:-
9. After receipt of requisite information, the representation of the applicant was examined by the Competent Authority DG, CPWD & Secretary, Ministry of Urban Development for respective period on the basis of available material facts with reference to the (i) grounds in the representation (ii) self appraisal and assessment in Annual Performance Assessment Report (APAR) (iii) other applicable instruction in an objective manner. After going through all the material facts the Competent Authority took into consideration, inter alia, aspects mentioned in preceding para 6:-
xxx xxx
(iii) Period 6.8.2007 to 31.3.2008 ( 8 months) The officer has not furnished details of duties, targets and achievements in the self-appraisal. Though Reporting and Reviewing Officer is same but the Report has been seen and accepted by the Accepting Authority. The assessment of attributes are indicative of satisfactory/good performance only. The grounds submitted for upgradation are insufficient.
(iv) Period 1.8.2008 to 31.3.2009 The self appraisal by the officer does not mention any targets or achievements. Whatever stated by him in part-2 has been partially agreed by the Reporting Officer. Professional technical competence has not been commented upon. The assessment of attributes is hardly impressive. The Reporting and Reviewing authority was having good personal knowledge of officers performance. Though Reporting and Reviewing authority was same but the assessment has been seen and accepted by the Accepting Authority. The grounds submitted for up gradation are insufficient.
10. The Reviewing officer who has good knowledge of the officer reported upon has fully agreed with the assessment of the reporting officer. The Countersigning Officer has also Countersigned the report.
11. Since reporting, reviewing, countersigning officers were acquainted with the work, conduct, performance of the officer reported upon under their control, they were in better position to assess the officer. Their assessment is found to be in conformity and no apparent contradictions noticed.
12. Keeping in view the facts mentioned in foregoing paras the competent authorities decided to upgrade the ACRs for the period 1.4.2005 to 31.8.2005 & 1.11.006 to 31.3.2007 to very good and not to interfere with the gradings for the periods 6.8.2007 to 31.03.2008 and 1.8.2008 to 31.1.2009 which was duly communicated to the applicant vide letter No.11/10/2010/SE(CE)/CR Cell dated 10.4.2012.
13. That the Honble Supreme Court has held in number of judicial pronouncements that having regard to the limited scope of judicial review of the merits of selection made for appointment to a service or a civil post, the courts are not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the DPC and that it could not sit in judgment over the selection made by the DPC unless the selection is assailed as being vitiated by malafides or on the ground of being arbitrary. Even otherwise, the law is well settled that the DPC is not merely guided by the grading of the ACR and it can devise its own methods of assess the performance of the applicant. Hence, in view of the legal and factual position as explained herein above, the present OA is without any merit and the same is liable to be dismissed with costs.
14. The Honble CAT (PB) in its order dated 18.8.2011 in OA No.2948 of 2011 titled Rajiv Kumar Vs. UOI (Annexure R3) while dismissing the application seeking to quash and set aside order vide which his representation for upgradation of his two ACRs which were not commensurate to the benchmark for promotion was rejected have observed:
In a matter like the one in hand, there is very little scope for interference by way of judicial review. It is not possible for us to substitute our views with that of Reporting, Reviewing and Countersigning authorities consistently grading the officer as only Good. The mere fact that the Reporting Officer agreed with the self-appraisal of the applicant would not automatically mean that the applicant deserves to be graded as Very Good.
A copy of the Honble CAT (PB)s order dated 18.8.2011 in OA No.2948 of 2011 titled Rajiv Kumar Vs. UOI is attached herewith and marked as Annexure R-3.
3. We heard counsel for parties and perused the record. It is true that Courts/Tribunal cannot sit in appeal over the remarks/grading in ACR/APR of a Government servant. It is also stare decisis that it is not for the Tribunal to assume the role of DPC/Selection Committee and the scope of judicial review of the assessment made by the DPC/ Selection Committee is quite limited. Nevertheless in exercise of its power of judicial review, the Courts/Tribunal needs to see, whether the executive/administrative decision assailed before it satisfy the test of fairness and adherence to the principle of natural justice or not. The executive decision not in consonance with the relevant rules/instructions on the subject cannot stand the test of judicial scrutiny. When in terms of the G.I., Dept. of Per. & Trg., O.M.No.21011/1/2010-Estt.A dated 13.04.2010, the decision on the representation need to be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers, if they are still in service, in the present case the representation made by the applicant regarding the grading in the ACR in question could be rejected without taking into account the comments of the accepting officer and by a non speaking order. The general instruction (ibid) read thus:-
Below bench-mark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the Competent Authority against remarks in the APAR or for upgradation of the final grading.- Prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any, to be considered by the Competent Authority. The question of treating the grading in the ACR which is below the bench-mark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a 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 bench-mark 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. It may be noted that only below bench-mark ACR for the period relevant to promotion need to be sent. There is no need to send below bench-mark ACRs of other years.
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the Competent Authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the Competent Authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the Competent Authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing Officer if they are still in service on the points raised in the representation vis-`-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the Competent Authority does not give specific reasons for upgrading the below bench-mark ACR/APAR gradings at par with the bench mark for next promotion.
3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officer if they are still in service and in case of upgradation of the final grading given in the APAR specific reasons therefore may also be given in the order of the Competent Authority. Apparently the order passed in the representation is non-speaking and the comments of the Director General are not taken into account in the said order. The comments of the Director General (Accepting Authority) and the relevant excerpt of the decision in the representation are:-
Sub: Representation against below bench mark APAR for the period 01.04.2005 to 31.08.2005, 01.11.2006 to 31.03.2007, 06.08.2007 to 31.03.2008 and 01.08.2008 to 31.01.2009 in respect of Shri S.P.Shakarwal, SE (E).
xxx xxx 6.8.2007 to 31.3.2008 & 1.8.2008 to 31.1.2009. The reasons adduced by the officer are not convincing enough to accept his request for upgrading the assessment in the ACR for the period 06.08.2007 to 31.03.2008 and 01.08.2008 to 31.1.2009 also
keeping in view his performance as Fair and Good for different preceding periods and as such his representation is rejected by the competent authority. xxx xxx The following is submitted for consideration by the Secretary MOUD while deciding on the issue of upgrading the 2 ACRs (pages 73-74 of the true typed copy) SL.1- (C) as an np 10 - 6.8.07 to 31.3.08 Sl.2- (D) as an np 10 - 1.8.08 to 31.1.09 (1) The officer reported upon has worked as SE (Coordination) Electrical under ADG (NR) directly and hence there is no level of CE to report upon.
(2) The job profile of SE (coordination) is such that it is very difficult to assess in form of quantum or amount as is generally due in case of SEs posted in field or planning.
(3) Kindly see facts on NP 8 & 9 for periods of ACR marked C &D respectively. Please observe ACR Portion C ( 6.8.07 to 313-08)
(i) Self appraisal states that he has done all the works (Transfer and posting, court cases, etc.) within time which has been agreed to by the reporting officer.
(ii) Quality of output- effective
(iii) Professional competence- competent
(iv) Attitude- dedicated - motivated
(v) Decision making-considers Pros and cons of alternatives.
(vi) Initiative - willing to take additional
responsibility.
(vii) Obtain support- from his subordinates
ACR portion D ( 1-8-08 to 31-1-09)
(i) The self appraisal states that he has played active role for completion of special recruitment Drive for ST. He has done all works in time.
(ii) The reporting officer states at 3.9 that he is Very Good at interpersonal relations which is very essential in Coordination Circle.
(iii) The reporting officer at 3.12 under Coordination Ability has stated The officer is able to coordinate his work with various functionaries.
The above read with further accomplishments by the officer as stated at-NP-9 reinforces the character and performance of Shri Shakarwal.
For the facts and reasons stated above, I strongly recommend that the ACR of Shri S.P.Shakarwal SE (al) Coordination for the above said periods i.e. (i) 6-8-07 to 31-03-08 and (ii) 1-8-08 to 31-1-09 be upgraded to be Very Good.
Sd/- 31/1 Sd/-Director General 28/1/12 Even in the reply filed by the respondents it has been admitted that the representation need to be decided after taking into account the views of the accepting officer. Para 3 of the reply read thus:-
3. As per existing instructions Annual Performance Assessment Report (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officers/Countersigning/Accepting Officer if any. While considering the representation, the competent authority decides the matter objectively on the basis of material placed before it taking into account the contentions of the officer, the view of the Reporting and Reviewing Officer/ Countersigning/ Accepting Officers if they are still in service on the points raised in the representation vis-`-vis the remarks/gradings given by them in the Annual Performance Assessment Report (APAR). Besides, as has been viewed by Honble Supreme Court in Jal Nigam and Others Vs. Prabhat Chandra Jain and Ors (JT 1996 (1) SC 641), if the graded entry is going a step down, like falling from 'very good' to 'good', that is not ordinarily an adverse entry; both are positive grading but what was required from the authority recording the ACR is to issue show cause notice for such down grading in personal file of the officer concerned, and inform him of the change in the form of an advice. The relevant excerpt of the judgment read thus:-
As we view the extreme illustration given by the High Court may reflect and adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. Yet recently in Bishwanath Prasad Singh etc. v.State of Bihar & Ors reported in JT 2001 (1) SC 161, the law has been laid down in the following terms:-
33. A number of decisions dealing with the object and purpose of writing confidential reports and care and caution to be adopted while making entries in the confidential records of government officers have been referred to in the cases of Sarnam Singh (supra, vide para 31, 32) as also in the case of Ishwar Chand Jain (supra). We need not repeat the same. Suffice it to observe that the well-recognised and accepted practice of making annual entries in the confidential records of subordinate officials by superiors has a public policy and purposive requirement. It is one of the recognized and time-tested modes of exercising administrative and disciplinary control by a superior authority over its subordinates. The very power to make such entries as have potential for shaping the future career of a subordinate officer casts an obligation on the High Courts to keep a watch and vigil over the performance of the members of subordinate judiciary. An assessment of quality and quantity of performance and progress of the judicial officers should be an ongoing process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. An annual entry is not an instrument to be wielded like a teachers cane or to be cracked like a whip. The High Court has to act and guide the subordinate officers like a guardian or elder in the judicial family. The entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of ? superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance where need be; to admonish him with the object of removing for future, the shortcoming found; and expressing an appreciation with an idea of toning up and maintaining the immutable qualities by affectionately patting on the back of meritorious and deserving. An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total of the impressions formulated by the inspecting Judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls. In view of the authoritative pronouncement of the Supreme Court, there cannot be any manner of doubt whatsoever that strict compliance of the said guidelines are necessary.
For the reasons aforementioned, there cannot be any doubt that the ACRs for the year 1987-88 and 1989-90 could not have been considered at all by the DPC. It was also necessary for the concerned Reviewing Authority to make such enquiry as was necessary so as to enable them to properly assess the work of the petitioner, where he had no opportunity to oversee the work of the officer for a period of 3 months or more.
4. In the wake, we quash the impugned order limited to the extent it nixed the up-gradation of ACRs of the applicant for the period 6.08.2007 to 31.03.2008 and 1.08.2008 to 31.03.2009. The matter is remitted back to the competent authority to take fresh decision in the representation of the applicant regarding the grading in aforementioned ACRs, after taking into account the comments of the accepting authority (ibid). Needful should be done within eight weeks. If the ACRs are upgraded, the applicant will be entitled to the consequential benefits in accordance with the relevant rules and instructions on the subject.
OA stands disposed of. No costs.
(V.N.Gaur) ( A.K.Bhardwaj) Member (A) Member (J) sk