Central Administrative Tribunal - Bangalore
M.R. Kirki vs State Of Karnataka And Anr. on 30 October, 2000
ORDER S.K. Ghosal, Member (A)
1. The applicant was appointed to the Indian Forest Service w.e.f. 1-12-1985. He was duly promoted to the selection grade w.e.f. 20-1 -94. Subsequently he was promoted as the Conservator of Forest (Vigilance) in the Super time Scale of Indian Forests under the Government of Karnataka (the Government for short) order dated 22-6-1996. During the year 1996-97 the applicant worked under the direct administrative control of the Principal Chief Conservator of Forests (P.C.C.F), one Shri K.S. Sadashivaiah, for the period from 1-10-1996. Through the confidential DO letter dated 22-9-1997 the Chief Secretary to the Government of Karnataka communicated the following adverse remarks to the applicant alongwith remarks on the same attributes which were favourable and not adverse.
1. The Officer needs to develop positive approach towards functions to be performed in different posts. If only he had positive approach, he could have contributed a great deal towards protection & infrastructure of department".
2. Knowledge of functions and related instructions is not lacking, "positive use of this knowledge to achieve the objective is wanting".
3. Leadership qualities, to make things happen, are yet to be developed to the required extent at senior level". Local environment and changes are not factors affecting his strategy towards achieving the objectives.
4. Willing to assume responsibility. "But limitations to-organise and motivate people around him affect the progress".....
5. Planning ability is fairly good. "Capacity building is necessary in effectively handling unforeseen situations. Proper understanding of his role is basic requirement to take on addition and new areas of work.
6. Relationship with superiors, colleagues and subordinates is fairly satisfactory. "Attitudinal change is necessary to make him develop good team spirit and contribute to optimise output.
7. "The officer appears to be dissatisfied with everything around him. Although he intends to do lot of good things, for want of single minded positive approach, the results of his efforts are not rewarding".
The applicant made a detailed representation dated 4/5-11 -97 in response to that communication dated 22-9-1997 available at Annexure A3 of the OA. In his representation the applicant pointed out the detailed facts and circumstances alongwith copies of documents in support of his contentions that there was no valid ground for the adverse remarks mentioned above, that the then reporting officer i.e., Shri A.S. Sadashivaiah, had made the adverse remarks based on malice and further that the adverse remarks were incorrect. However, the Government through their order dated 7-6-1999 seen at Annexure A4 rejected the representation made by the applicant for the expunging adverse remarks contained in ACR for 1996-97, mentioned above. This was explicitly stated to have been done in exercise of powers vested under Rule 10(1 )(a) of the Indian Service (Confidential Report) Rules, 1970 and after considering all the facts of the case.
2. The applicant is aggrieved by the said Annexure-A4 order rejecting his representation for expunging the above-cited adverse remarks and has sought the following reliefs:
"1, A direction to the respondents to produce before this Hon'ble Tribunal the entire records from the stage of Reporting Authority to the stage of Accepting Authority and also such other documents and files that led to passing of the impugned order No. DPAR/140/Sept'97 Bangalore dated 7-6-99 at Annexure A4.
2. To issue a writ of Declaration declaring that the alleged adverse remarks contained in the impugned order No. DPAR/140/Sept 97 Bangalore dated 7-6-99 at Annexure A4 issued by the respondents are not the liable to be looked into while considering the case of the applicant for promotion, deputation, foreign tour or such other service benefits.
3. To issue an appropriate writ in the nature of Certiorari quashing the impugned order No. DPAR/140/Sept 97 Bangalore dated 7-6-99 at Annexure A4 issued by the respondents and a consequent direction to the respondents to expunge the alleged adverse remarks from the Confidential Rolls/Records of the applicant for the financial year 1996-97.
3. The principal grounds urged by the applicant for the reliefs sought by him are that there has been no application of mind by the concerned authorities to the materials on record, that the reporting authority i.e., Shri A.S. Sadashivaiah, did not have the opportunity to observe his performance for the entire financial year of 1996-97, since he became the reporting officer admittedly only w.e.f. 1-10-1996 and retired from service on 30-6-1997, that the said reporting authority recorded the adverse remarks after his retirement i.e., subsequent to 30-6-1997, that the reporting authority had not set any targets/goals/ objectives right at the commencement of the reporting year i.e., April, 1996 as required under the Instructions No. 7 of the Instructions appearing at the bottom of the prescribed format i.e. the form of the confidential report for an All India Service Officer, that the applicant and the reporting authority did not have frequent interactions during the relevant period, which was in any case too short i.e., from 1-10-1996 to 31-3-1997, that the reporting authority failed to appreciate the fact that the remarks in an ACR are a vital input for assessing the performance of an officer and for his further advancement in the career, that he the Reporting Authority (R. A.) should have approached the task of recording in the ACR with a high sense of responsibility which he has failed to do, that some of the adverse remarks are contradictory with other remarks on the same attributes, that some of the adverse remarks are vague, that the Reviewing Authority has refused to exercise his power on the ground that he, i.e., the Reviewing Authority, was unable to comment on the report of the R.A. as he could not observe the work of the officer (here the applicant), that there is no remark recorded by the accepting authority i.e., the then Chief Secretary of the Government of Karnataka since he had already retired on 31-7-1997, that the adverse remarks cited above are in the nature of counselling/advice to the applicants since they do not reflect any defect in the performance on conduct of the applicant and therefore these remarks should not have been considered as adverse particularly because for the same year 1996-97 the overall performance of the applicant has been recorded as satisfactory, that there has been no material substance for arriving at the said adverse remarks or for justifying them, that the impugned order rejecting his representation for expunction of adverse remarks is not a speaking order nor does it reflect any application of mind to the material submitted by him in particular along with that representation, that the applicant had suffered from lack of adequate facilities like the Forest Mobile Squads and other infrastructure facilities despite representations made by him in that behalf as a result of which he had been placed in a disadvantageous position during that period, that despite such disabilities the applicant had discharged his functions to the best of his ability and satisfied the requirements of the post he held, that the applicant was instrumental in revealing Forest scams involving several crores of rupees, that though he had submitted to Shri Sadashivaiah i.e., the R.A., who was the then PCCF, investigation reports dated 29-11-96, 16-1-97, 25-2-97, 7-4-97 etc. requesting him to take suitable action against the departmental culprits to prevent repetitions of several Forest Scams involving several crores of rupees to the Government no action was taken by Shri Sadashivaiah and on the contrary certain adverse remarks were recorded by him in respect of the applicant in his ACRs 1996-97, that it is the investigation reports submitted by the applicant that annoyed the R.A., and prompted him to record the impugned adverse remarks, that the reporting officer was not justified in recording the adverse remarks, that other authorities similarly had no justification, and finally that the adverse remarks have been recorded by the R.A., only with a view to affecting the promotional prospects for the applicant and his career development on account of the ill will and vindictiveness and for the reason that the applicant had discovered several Forest Scams and had made reports thereon to the R.A., in his capacity as the PCCF.
4. At the stage of the arguments the learned Counsel for the applicant, inter alia, drew our attention in particular to Instruction No. 9 of the Instructions, mentioned above, which is reproduced as follows :
"9. Although performance appraisal is a year-end exercise in order that it may be a tool for human resource development the Reporting Officer and the Officer reported upon should meet during the course of the year at regular intervals to review the performance and to take necessary corrective steps".
(emphasis supplied).
It has been strongly contended on behalf of the applicant, and we find that this ground was in particular mentioned in his representation at Annexure A5, that no review took place at all during the relevant period. We also observe that under the same heading of Instructions in Instructions Nos. 1 to 4, following directions have been incorporated :
" 1. The Confidential Report is an important documents. It provides the basic and vital inputs for assessing the performance of an officer and for his/her further advancement in his/her career. The officer reported upon, the Reporting Authority, the Reviewing Authority and the Accepting Authority should, therefore, undertake the duty of filling out the form with a high sense of responsibility.
2. Performance appraisal through Confidential Reports should be used as a tool for human resource development. Reporting Officers should realise that the objective is to develop an officer so that he/she realise his/her true potential. It is not meant to be fault-finding process but a development one. The Reporting Officer and the Reviewing Officer should not shy away from reporting shortcomings in performance, attitudes or overall personality of the officer reported upon.
3. The columns should be filled with due care and attention and after devoting adequate time. Any attempt to fill the report in a casual or superficial manner will be easily discernible to higher authorities.
4. Performance evaluation by the Reporting Officer must not be done without having conducted at least one detailed inspection of the work of the subordinate unless the subordinate is one with whom his senior is inter-acting almost daily."
(emphasis supplied).
We also observe that the Central Government is competent to issue these Instructions under Rule 10.A of the All India Services (Confidential Rolls) Rules, 1970.
5. The learned Counsel for the applicant has next drawn our attention to the case laws laid down by the Hon'ble Gujarat High Court in Or. B.R. Kulkarni v. Government of Gujarat and Ors., reported in 1978(2) SLR Guj. Page 682, by the Hon'ble Delhi High Court in Union of India v. Shri Ranjit Singh Grewat and others, reported in 1980(3) SLR Delhi Page 256 and by the Hon'ble Supreme Court in P.K. Shastry v. State of MP and others, reported in AIR 1999 Supreme Court 3273. We observe that the Hon'ble High Courts and the Hon'ble Supreme Court have laid down the principles there that there should be an objective basis for recording the adverse remarks in an ACR and that the authorities in Government competent to record the remarks are required to follow the executive instructions regulating the recording of those remarks. We are of the considered view that those principles are therefore firmly established. Since it has been argued on behalf of the applicant that the said principles have been violated by the respondents while rejecting his representation against the impugned adverse remarks, it became necessary for us also to peruse the relevant records apart from considering the reply filed by the respondents and the arguments advanced by the learned Counsel for the respondents. The respondents have opposed the reliefs sought by the applicant. They have clarified the factual position that the then Reporting Authority recorded the remarks for the year ending 31-3-1997 on 28-6-1997 and not after his retirement which took place on 30-6-1997, that Shri Sadashivaiah, the then P.C.C.F. & R.A., had observed the performance of the applicant for a period of six months which was legally adequate to make a valid assessment and that neither the Reviewing Authority not the Accepting Authority rejected the assessment made by the Reporting Authority. They have contended further that the Reporting Authority did not have a "predisposition of being casual, irresponsible, defective or retaliatory", that the remarks communicated to the applicant were not of the nature of any advice or counselling and they were, therefore, treated as adverse, that even if the overall performance of the applicant was treated as satisfactory that assessment could not override other observations which were adverse in respect of certain specific attributes of the applicant, that the allegation that the adverse remarks were made without any application of mind or justification is not true, that the allegation that the representation submitted by the applicant for expunging the adverse remarks has been rejected and the adverse remarks retained on record without due application of mind is unfounded and incorrect, that, in fact, the confirmation of the adverse remarks has been done after due consideration of all relevant materials by means of a proper order of the 1 st respondent, i.e., the State of Karnataka acting through the Hon'ble Chief Minister, that the R.A., had evaluated the performance of the applicant taking into consideration all relevant circumstances including the alleged lack of adequate vehicular and other infrastructure facilities, that the allegation that the adverse remarks had been recorded by the R.A., due to the annoyance caused to him by the honest behaviour of the applicant is imaginary and untenable, that the applicant should have first availed the alternative remedy provided by Rule 25 of the All India Services (Discipline and Appeal) Rules, 1969, under which he could petition the President of India for relief against any order passed by the State or Central Government, and having failed to exhaust such an available alternative remedy, the applicant is not entitled to approach the Tribunal with the present O.A., that it is not required that before recording the adverse remarks, the applicant ought to have been given an opportunity of making a representation or of hearing, and finally that similarly there is no legal requirement for passing a speaking order detailing the reasons while rejecting the representation made by the applicant for expunging the adverse remarks communicated to him.
6. The learned Counsel for the respondents has also argued in particular that there is no legal requirement that before the adverse remarks are recorded by the R.A., for a particular period there should be placed on record the fact that periodical reviews with the participation of the Government Officer reported upon have been held and that on those occasions the performance of the said officer was reviewed and he was advised to take corrective steps. According to him, the Reporting Officer and the applicant used to interact frequently during the relevant period and that therefore in the present case it should be presumed that during those frequent interactions, the performance of the applicant was reviewed and he was advised to take necessary corrective steps to improve his performance particularly in respect of the matters covered in the adverse remarks recorded by the Reporting Authority. We must observe that in the face of the specific averment on the part of the applicant that such reviews did not take place even orally, that during the relevant period he was not asked to take necessary corrective steps to improve his performance and further that this particular ground was taken by the applicant even in his representation, which we find at Annexure-A3 in paragraph 2 thereof, the respondents have failed to produce any record to indicale that there was some indication that such reviews did in fact take place where the applicant was instructed to take necessary corrective steps or that while considering the said representation at Annexure A3 this particular ground was considered by the respondents at all. In our considered view, there can therefore be no basis for the presumption that there were such periodical reviews or that the applicant was advised to take corrective steps to improve his performance.
7. The respondents have made available to us the file bearing No. DPAR 140 SFP 97 which deals with the communication of the impugned adverse remarks, the examination of the representation filed by the applicant for expunging those remarks and finally the manner in which the decision was taken to reject the representation and to allow the adverse remarks to stand. We have carefully gone through the said file.
8. We have perused the material placed before us and heard the learned Counsel for the parties.
9. It is well established, based on the case law prescribed by the Hon'ble Supreme Court, that it is not necessary for the Government to pass a speaking and reasoned order while rejecting a representation for expunction of adverse remarks, since there are no such requirements under the rules governing the recording of the remarks in the ACR. and the disposal of the representations made against such adverse remarks. However, the Hon'ble Supreme Court has also laid down at the same breath that as a part of the judicial review of the process of decision-making leading on to the rejection of the representation, either in part or in whole, in respect of adverse remarks, the Tribunal and the Courts may examine the records leading to such a decision in the Government.
10. We notice in this context lhat while examining the representation, as a part of the process of decision making, upto a certain level in the Government the assessment was that in view of the grounds mentioned in the representation at Annexure-A3, the adverse remarks may have to be expunged. It is only at the next higher level i.e., at the level of the 1 st respondent, i.e., the Secretary, Department of Personnel and Administrative Reforms, Government of Karnataka, that, in the face of that assessment, it was cryptically recorded that it was difficult at the level of the Government to state whether the adverse remarks were correct or not, since the Reviewing Officer had not recorded any such views, obviously in the ACR, because the respondents did not consult the said Reviewing Officer on receipt of the representation. We have already noticed the said observation/views recorded by the Reviewing Officer which were merely to the effect that he was unable to make any comment on the report of the RA, since he could not observe the work of the applicant. It was based on that laconic observation that a further recommendation was made by the Chief Secretary equally cryptically that the adverse remarks should be allowed to stand. The then Chief Minister agreed with that advice. As the culmination of this process of decision making, the impugned communication at Annexure-A4 rejecting the representation made by the applicant, for expunging the impugned adverse remarks contained in his ACR for the year 1996-97, was issued. We also notice in this connection that inspite of repeated efforts made at the level of the Government, the comments of the Reporting Authority (Officer) could not be obtained and that the examination of the representation made by the applicant at Annexure-A3 proceeded in the absence of any comments on that representation either from the erstwhile P.C.C.F., i.e., Shri Sadashivaiah or of the then Reviewing Authority,
11. The impugned order at Annexure-A4 specifically states that the rejection of the representation made by the applicant at Annexure-A3 was done in exercise of the powers conferred under Rule 10(I)(a)of the All India Services (Confidential Report) Rules, 1970. We consider it necessary, therefore, to quota that Rule verbatim below :
" 10. Consideration of representation against adverse remarks--(1) The Government shall, and if it considers necessary, in consultation with the reporting authority, (the reviewing authority or the accepting authority) consider the representation made under Rule 9 by a member of the Service and pass orders as far as possible within three months of the date of submission of the representation.
(a) rejecting the representation, or
(b) toning down the remark, or
(c) expunging the remark :
Provided that where an order toning down or expunging the remark is passed a copy of such order, and if the order is passed beyond twelve months after the close of the financial year or calendar, as the case may be, to which the remark pertains, the reasons therefor, together with the certified true copies of the representation made and the remarks of the reporting authority and the reviewing authority, shall be endorsed to the Central Government or the State Government or both to the Central Government and the State Government according as the member of the Service is serving in connection with the affairs of a State on whose cadre he is borne or the Union or a State to which he has been deputed.
(2) The order so passed on the representation shall be final and the member of the Service concerned shall be informed suitably."
(Emphasis added)
12. It is evident from the provisions of the above cited rule that the Government, while considering the representation for expunction of adverse remarks should consult the concerned Reporting Authority/Reviewing Authority/Accept ing Authority when such consultation is considered necessary. As is obvious from a discussion of the facts of the present case, it is only the Reporting Authority who had recorded the adverse remarks and further that the Reviewing Authority in particular had declined to make any comments on the reports of the Reporting Authority for the specific reason that he, as the Reviewing Authority, had no opportunity to observe the work of the applicant and further that the Accepting Authority, i.e., the concerned Chief Secretary had already retired and therefore no remark was made by the Accepting Authority. It is also evident that neither of the two respondents i.e., the Secretary, DPAR and the Chief Secretary, who considered the representation had any knowledge of the work of the applicant. In these circumstances, the consultation with R.A. was obviously necessary. In fact at the Government level, efforts were made repeatedly to get the comments of Shri Sadashivaiah who had retired in the meanwhile, on the representation made by the applicant. As we have pointed out above, those efforts proved fruitless and the examination of the representation made by the applicant for expunging the impugned adverse remarks proceeded at theGovernment level without the benefit of any comments thereon from any of the three authorities, i.e., the Reporting Authority, Reviewing Authority and the Accepting Authority. We have also observed that upto a particular level in the Government based on an examination of the contents of the representation vis-a-vis the impugned adverse remarks, the assessment was that the adverse remarks should be expunged. Beyond that level based only on a routine statement that since the concerned Reviewing Authority (Officer) had not specifically assessed whether or not the adverse, remarks recorded by the Reporting Authority were correct or faulty, the Government cannot make such an assessment, a recommendation was made to allow the adverse remarks to stand before the final decision-making authority, i.e., the then Hon'ble Chief Minister of Karnataka. It is indeed strange that though it was open to the Government to consult the Reviewing Authority specifically in the context of the examination of the representation made by the applicant at Annexure-A3, no such consultation was made and yet at the same time, it was observed by the first respondent, i.e., the Secretary, DPAR that the Reviewing Authority had not made any comment as to the correctness or otherwise of the impugned adverse remarks. It is further evident that right at the stage when the then Reviewing Authority was required to record his remarks, he declined to do so and observed specifically that he was unable to comment on the remarks recorded by the Reporting Authority since he as the Reviewing Authority did not have any opportunity to observe the performance of the officer reported upon, i.e., the applicant herein. It is difficult, therefore, for us to appreciate the reason recorded by the Secretary, DPAR for his making the said assessment.
13. In these circumstances, we are unable to agree with the main defence advanced on behalf of the respondents that the rejection of the representation made by the applicant at Annexure-A3 was done validly in exercise of the powers conferred under Rule 10( 1 )(a) of the All India Services (Confidential Report) Rules, 1970. On the other hand, on a perusal of the materials, placed before us and referred to above, it is obvious that at the crucial levels, i.e., at the level of the then Secretary, Department of Personnel & Administrative Reforms and at the level of the Chief Secretary to the Government, there has been no application of mind and proper assessment as to whether there was any valid ground for rejecting the representation, while making the recommendation that the adverse remarks be allowed to stand. We feel that indeed it is sad that while dealing with a matter affecting the career prospects of an All India Service Officer, it was dealt with in such a cavalier manner.
14. As regards the plea of the respondents that the applicant has not exhausted the available alternative remedy, it is obvious that a petition or memorial which the member of an All India Services like the applicant can make to the President of India, cannot be considered as a statutorily prescribed alternative and efficacious remedy contemplated under Rule 20 of the Administrative Tribunals Act, 1985. Sub-section 3 of that Section specifically provides as follows :
"3. For the purposes of Sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant has elected to submit such memorial."
(Emphasis supplied) The objection raised on behalf of the respondents on this score, therefore, is obviously untenable.
15. For the reasons discussed by us above in some detail, we find that the respondents had no valid basis for rejecting the representation made by the applicant dated 4-11-1997 requesting for expunction of the impugned adverse remarks recorded in respect of the applicant for the year 1996-97. The decision-making process followed at the senior levels of the Government in this behalf, as indicated by us above, cannot therefore be sustained. It is also evident that as a part of the same decision-making process, the respondents clearly failed to satisfy themselves that there was indeed some objective basis for these adverse remarks which had been recorded by the concerned Reporting Authority in the said ACR. The respondents were required, under the (Executive) Instructions cited by us (sic) above, to ensure that such objective basis indeed existed in the present case, particularly in consideration of the material placed before them by the applicant along with his representation.
16. For these reasons, we have no hesitation to quash the impugned order of the Government rejecting the representation of the applicant for expunction of the adverse remarks in his ACR for the year 1996-97. Accordingly, the said order of the Government dated 7-6-1999 seen at Annexure-A4 is hereby quashed. We further direct that the impugned adverse remarks cited by us above should be treated as expunged from the ACR of the applicant for the year 1996-97 and should be treated as having had no effect for the purpose of any performance appraisal connected with the development of the career of the applicant since 1996-97.
17. With these directions, the O.A. is allowed. There shall be no order as to costs,