Central Administrative Tribunal - Delhi
Dr. Kuldip N. Sharma vs State Of Gujarat Through on 7 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.49/2011 This the 7th day of April, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Kuldip N. Sharma, IPS, Managing Director, Gujarat Sheep and Wool Development Corporation Limited, Block No.18, 5th Floor, Udyog Bhawan, Gandhinagar-382011. Applicant ( By Shri I. H. Syed with Shri Varinder Kumar Sharma, Advocates ) Versus 1. State of Gujarat through Additional Chief Secretary, Government of Gujarat, Home Department, Sachivalaya, Gandhinagar-382010. 2. Shri Amit Anilchandra Shah, Minister of State (Home), Government of Gujarat, Home Department, Sachivalaya, Gandhinagar-382010. 3. Shri Narendra Damordas Modi, Chief Minister, Government of Gujarat, Sachivalaya, Gandhinagar-382010. 4. Director General of Police, Gujarat State, Police Bhawan, Gandhinagar-382010. 5. The Union of India through Secretary, Government of India, Ministry of Home Affairs, North Block, New Delhi-110001. Respondents ( By Shri Tushar Mehta, Additional Advocate General with Shri Arun Bhardwah for Respondents 1 & 4; Shri Bhupender Yadav for Respondents 2 & 3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Dr. Kuldip N. Sharma, an officer of the Indian Police Service of Gujarat Cadre (1976 batch), the applicant herein, through present Original Application filed by him takes strong exception to downgrading of his Annual Confidential Reports (ACRs) for consecutive four years from 2003-04 to 2007-08 from outstanding to very good on one single day by his accepting authority, who happens to be the Chief Minister of the State. Before we may advert to the pleadings made by the parties in the Original Application and the counter replies filed on behalf of the respondents, we may briefly mention the background of the case and the reason why it came to be transferred from the Bench in Gujarat at Ahmedabad to the Principal Bench.
2. The applicant filed Original Application No.45 of 2010 in the Bench at Ahmedabad seeking multifarious reliefs. He complained of his posting as Managing Director, Gujarat Sheep and Wool Development Corporation Limited, Gandhi Nagar, taking him from the main stream and posting him out of his cadre. He also called in question the departmental enquiry initiated against him vide memorandum dated 14.12.2009, and in the process denying him vigilance clearance for Central deputation. He also challenged the downgrading of the overall assessment in his ACRs for the period from 2003-04 to 2007-08. An objection came to be raised by the respondents as regards maintainability of one petition with multifarious reliefs unconnected with each other. This objection prevailed with the Tribunal. Aggrieved, the applicant filed a writ petition, which was dismissed with the observation that the OA could be confined to one relief, whereas, as regards other reliefs, he could file separate OAs. That being so, the applicant confined OA No.45/2010 to challenge to the charge memo dated 14.12.2009, whereas with regard to downgrading of his ACRs for the period aforesaid he filed OA No.331/2010 in the bench at Ahmedabad. One of the Members, i.e., Administrative Member, and there being only one at the relevant time available, recused himself from dealing with the cases filed by the applicant. Justice Wajahat Ali Shah, Honble Judicial Member presiding over the Bench, vide order dated 24.11.2010 referred the matter to the Chairman for constituting a Bench. Meanwhile, the counsel representing the applicant, Shri I. H. Syed, addressed a letter to one of us (V. K. Bali, Chairman) to hear the matter in the Principal Bench at Delhi, as the only Administrative Member available in the Bench at Ahmedabad had expressed his inability to hear the matter. The letter was taken on judicial side as a misc. application seeking transfer of the matter from Ahmedabad to the Principal Bench, and after issuing notice to the respondents, an order dated 10.12.2010 came to be passed transferring both the Original Applications from the Bench at Ahmedabad to the Principal Bench. Whereas OA No.45/2010 after transfer to the Principal Bench came to be re-numbered as OA No.48/2011, OA No.331/2010 on such transfer has been re-numbered as OA No.49/2011. Against the order transferring the OAs to the Principal Bench, a writ came to be filed by the respondent State of Gujarat, which was dismissed as withdrawn, with liberty to the State to file representation on administrative side. Such representation was indeed filed but was rejected as an order passed on judicial side could not be changed on administrative side. The respondent State thereafter filed an application seeking review of the order transferring the matter to the Principal Bench, which, vide detailed order dated 2.2.2011, came to be dismissed.
3. The applicant in OA No.49/2011 pleads that he is a decorated officer of the Indian Police Service of the Gujarat cadre, and for his meritorious and distinguished services, the Government of India has awarded him the Police medal and Presidents Medal. It is his case that he has an overall outstanding service record. A summary of his overall ACR gradings from 1995-96 to 2007-08 has been placed on records as Annexure A-2, from which it would be seen that almost all his reporting, reviewing and accepting authorities have consistently rated the applicant as an outstanding officer in the overall grading, and since 1995, all his ACRs have been put up to the Chief Minister for assessment. It would be seen that all the Chief Ministers till 2002-03 have rated the applicant as outstanding. We may not reproduce Annexure A-2 in the judgment, but would only say that we have gone through the same and that does show that the applicant has been graded as outstanding by all reporting, reviewing and accepting authorities, except for the ACR of 1998-99 wherein he has been assessed as good by the reporting officer, but that was upgraded to outstanding by the reviewing authority, which upgradation was accepted by the Chief Minister, i.e., the accepting authority. The applicant was assessed as very good in 2000-01, but this report could not be assessed by the reviewing and accepting authorities, inasmuch as, whereas the reviewing authority had retired, the accepting authority had demitted the office. All other ACRs of the applicant are indeed outstanding, of course, except those downgraded in respect of which present OA has been filed.
4. While giving the background of the case, the applicant pleads that he found from the website of the Ministry of Home Affairs in September, 2007 that his ACRs for the years 2003-04, 2004-05 and 2004-06 had not been forwarded, as per rules, to the Government of India by the State Government. He addressed a letter dated 19.9.2007 to the Principal Secretary (Home), requesting him to expedite the same. He also enclosed a copy of the website of the Ministry, which revealed the status of his pending ACRs. It is pleaded that since the work pertaining to writing of ACRs for the years 2003-04, 2004-05 and 2005-06 had to be completed as per rules by 31.12.2004, 31.12.2005 and 31.12.2006 respectively, the time-limit stood grossly violated in the case of the applicant, and, therefore, vide letter dated 22.10.2007 the applicant drew attention of the 1st respondent to the directions of the Government of India, Department of Personnel & Training (DOP&T), requesting that his ACRs for the aforesaid years be retrieved from the office of the Chief Minister without his making any remarks as the accepting authority, and the same be forwarded to the Government of India at the earliest. It is the case of the applicant that he was given to understand that the ACRs of three years mentioned above along with the ACR for the year 2006-07, were all finally received in the Home Department from the CMs office on or about 30/31.12.2007. This was after the previous Government had demitted the office and the new one was sworn in on 25.12.2007. The ACRs were sent to the Government of India in January, 2008 in one bunch. The applicant applied to the State Government under the Right to Information Act asking for copies of his ACRs for the last twelve years. On perusal of the information so received, the applicant found that the 3rd respondent, in one go, had downgraded his overall grading in four ACRs pertaining to the period from 2003-04 to 2007-08 from outstanding to very good. The applicant submitted a representation dated 12.3.2008 to the Chief Secretary, Government of Gujarat, pointing out that the downgrading of ACRs by the 3rd respondent was in violation of the All India Services (Confidential Rolls) Rules, 1970 (hereinafter to be referred as the Rules of 1970), as also the directives issued by the DOP&T. In the said representation, the applicant inter alia pointed out that the action of the Chief Minister in downgrading his ACRs would be improper and would deserve to be set aside for the reasons mentioned therein. The representation of the applicant was rejected after keeping the same pending for one year and nine months by the 1st respondent, vide letter/order dated 11.12.2009. The applicant had applied on 12.11.2009 under RTI Act to Home Department, Government of Gujarat for information in respect of the timing and the channel of submission of the above mentioned ACRs, besides copies of noting section of the files on which his ACRs were submitted to the Chief Minister, as also the noting section of the file on which his representation dated 12.3.2008 was dealt with. The Public Information Officer (PIO) of the Home Department provided information vide letter dated 11.12.2009. As per the reply of the PIO, the ACRs in question were, in chronological order, put up to the Chief Ministers office on 24.5.2005, 22.8.2005, 27.9.2007 and 11.10.2007. The PIO, however, did not supply to the applicant copy of the note sheet on which his ACRs were submitted to the CMs office, on the ground that ACRs of other officers were also submitted on the same file. It is the case of the applicant that this was not a valid reason for denying to him copies of note sheets because gradings are not recorded on the note sheet, and thus no other officers interest would be involved, and that it was very important for him for verifying the date of CMs signature on it in view of the rule about demitting office, as well as for checking on discriminatory treatment meted out to him, and this was because (i) the date on which the CM signed the ACRs was not recorded by the CM on the body of the ACRs; (ii) the information given to the applicant by the PIO that the ACRs were received in the Home Department from the CMs office on 20.12.2007, was found suspicious by the applicant, as no basis for that had been provided; and (iii) the note sheets should have the stamp of the CMs office as to when they had sent it to the Home Department, which would also show whether the CM kept all ACRs put up on the file inordinately pending or the applicant was singled out for it. The applicant again wrote to the 1st respondent vide letter dated 5.1.2010 for providing the above and other relevant information. He, however, received no reply. It is the case of the applicant that copies of note sheet received from the PIO would show that the PS (Home) initiated the note on 2.4.2008 on his representation dated 12.3.2008. It is pleaded that normally, notes are initiated not by the Head of the Department but by the subordinate officers in-charge of the concerned branch, which is the depository of the relevant rules and records in the department, and further in his note the PS (Home) negated the grounds of the applicants representation, viz., that inordinate delay in the CMs office, and no specific fact or reason cited by the CM for downgrading, were such as could be explained or remarked upon by the CM himself. However, the PS (Home) did that by ex post facto applying his mind on behalf of the CM. After a query dated 9.4.2008 of the MoS (H) was answered by the GAD, the Chief Secretary had put up the file of the applicants representation to the MoS (Home) on 18.4.2008, and the MoS (Home) wrote on the file on 21.4.2008 for discussion with the ACS (GAD) and PS (H). Thereafter, the next note on the file is only after one and a half year on 12.10.2009 by MoS (H) himself, the 2nd respondent, wherein he has recorded that let us agree with the GAD, with nothing else about the discussion that he wanted to hold. The CM had only signed below this note in the month of November, 2009, whereupon the applicants representation was rejected on grounds provided by the PS (H). It is pleaded that this ex post facto justification by the PS(H) of the delay in the CMs office and of the downgrading done by the CM is not permissible, and moreover, it is clear that for no stated reason, on account of motives best known to him, the MoS(H) kept the representation pending for 18 months and activated it only in October, 2009. The timing of it around the applicants posting as MD, GSSWCL and thereafter issuing him with the charge memo would be difficult to brush aside as a mere coincidence because the growing unhappiness of the 2nd and 3rd respondents, is unmistakably palpable in it, further avers the applicant. The applicant sent a memorial dated 20.11.2009 to the President of India through the 1st respondent, with a request to set aside the remarks and grading of the 3rd respondent in his ACRs for the four years as mentioned above. He would not know as to what has happened to the memorial and believes that the same may still be pending.
5. The applicant avers that downgrading of his four years ACRs would deserve to be declared as illegal, arbitrary and mala fide for the reason that the ACRs were remarked upon by the Chief Minister after the prescribed time limit was over, which would be against the mandatory provisions contained in rule 6A of the Rules of 1970, whereby the accepting authority is required to record its remarks within one month of the review of the ACR. The Cabinet Secretary, Government of India, vide his DO letter dated 21.6.2005 addressed to the Chief Secretary, Government of Gujarat, had enclosed instructions regarding completion of the ACRs of All India Service officers, which contain a time schedule and the downgrading of ACRs is far beyond the period mentioned in the letter aforesaid, and that the downgrading of ACRs from outstanding to very good was done in violation of DOP&T letter dated 19.4.2005, which states that In any case where an entry is downgraded or upgraded, the authority downgrading or upgrading the remarks and overall grading should state, as part of the entry, the reasons for downgrading or upgrading with adequate justification in accordance with the instructions on writing of the ACR. There also have to be specific reasons for downgrading of the ACRs of the applicant from outstanding to very good. All that has been mentioned while downgrading the ACRs of the applicant is that In view of the overall performance of the officer, he may be graded Very Good. It is the case of the applicant that for four years his reporting and reviewing authorities were different and all of them have graded him as outstanding and there were no reasons at all to downgrade him to very good, and if that was to be done, there ought to have been reasons for the same. It is also his case that he has reasons to apprehend that the Chief Minister had made the remarks on his ACRs for the four years mentioned above not on 20.12.2007, as informed by the 1st respondent, but has made the same after he demitted the office on 24.12.2007, a function which he could not perform as per rule 6A of the Rules of 1970, vide which he would not be competent as the accepting authority to accept and countersign any such confidential report, and where the accepting authority is a Government servant, after he retires from service, and in other cases, after he demits office. It is the case of the applicant that Assembly election results were declared on 23.12.2007. The following day the Chief Minister demitted the office and the Government led by the same very Chief Minister was sworn in on 25.12.2007. The Council of Ministers was formed on 4.1.2008. It is pleaded that the ACRs in question reasonably seem to have been written after the Chief Minister had demitted the office. The reasons as to why the applicant apprehends as mentioned above, have been given by him as follows:
(a) The ACRs in question were, the applicant believes, received in the Home Department on or around 30/31.12.2007.
(b) Copies of these ACRs were sent to the Government of India in January, 2008.
(c) In none of the Annual Confidential Reports the Chief Minister put a date indicating when he accepted them.
(d) If the Annual Confidential Reports in question were indeed accepted on 20.12.2007, they would have certainly been sent to the Home Department, as the latter had sent several reminders to the Chief Ministers office. Normally files which have been dealt with, are never kept pending in the Chief Ministers office, especially when the tenure of the Government is ending. Well before the election, the same are returned to the concerned department. The applicant also finds it odd that Respondent No.3, had the time or the mindset to accept ACRs on 20.12.2007 in the atmosphere of general election and forthcoming results. In any case, the information and records sought by the applicant vide his letter dated 5.1.2010 will make the things clear. This Honble Tribunal may also call for the files and records from Respondent No.1.
6. From the facts as mentioned above, the applicant pleads that the same would disclose abuse of power by the 3rd respondent, assisted by the 1st and 2nd respondents, in the manner and substance of the disposal of the representation of the applicant. It is further the case of the applicant that it is quite obvious that the CM could not have reasonably remembered the objective facts of his performance during the last four years when he made his remarks en bloc on his ACRs in the month of December 2007. The applicant also reasonably believes that the CM singled him out by sitting on his ACRs during the entire tenure of the previous Government headed by him, and that he did so to compel the applicant to accept his and 2nd respondents dictates, rather than to follow the law as a senior police officer. The applicant has given details of some investigations made by him, and it is pleaded that as he was not conducting investigations in the criminal matters as per the desires of the respondents, he was victimized. There would be no need to give details of the instances given by the applicant, as during the course of arguments Shri I. H. Syed, learned counsel representing the applicant, states that the applicant would not press at this stage personal mala fides of the respondents in downgrading his ACRs, even though he would press for legal mala fides.
7. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed separate replies. Initially, the reply came to be filed on behalf of the respondents in the OA filed by the applicant containing all reliefs, but after the applicant filed a separate OA calling in question downgrading of his ACRs, separate replies have been filed by the respondents.
8. In the reply filed on behalf of the 1st respondent, a preliminary objection has been raised. It is pleaded that the applicant has invoked jurisdiction of this Tribunal under the provisions of the Act of 1985, and that this Tribunal is yet to adjudicate, inquire into and take a decision as to whether the Application contains issues fit for either adjudication or trial, and is yet to admit the same. The Tribunal, it is further pleaded, would have jurisdiction to summarily reject the Application filed under the Act, and that the affidavit in reply is being filed praying for exercise of powers by the Tribunal to summarily reject this Application. Maintainability of the Application is also questioned on the ground that the applicant has filed a statutory memorial before Her Excellency the President of India, and if the OA is admitted, such proceedings would abate. The learned Additional Advocate General representing the respondents would contend that when the applicant has filed a memorial, on which comments of the State Government has also been called for, the present OA would not be maintainable, and it would be premature and, therefore, needs to be dismissed. There are objections with regard to maintainability of the OA on the ground of personal mala fides the pleadings having not been supported by proper affidavit, but inasmuch as the applicant has not pressed mala fides in seeking the relief, there would be no need to make any mention of such averments made in the counter reply. On merits, after reproducing the grounds pleaded by the applicant in challenging the downgrading of his ACRs, it is inter alia pleaded that the main contention of the applicant on interpretation of statutory rules is with regard to alleged non-compliance with rule 6A of the Rules of 1970. The time limit mentioned in the rule, it is stated, is not mandatory, and that the very object and purpose for which the concept of writing, reviewing and accepting ACRs is evolved, is to ensure that irrespective of the cadre, the performance of each officer is evaluated at three different levels, and that depending upon the remarks made in the ACRs, an officer can take the satisfaction of his good work appreciated or can get an opportunity to improve his performance and can utilize his full potential which is necessary for efficient governance and administration. It is pleaded that considering the object and purpose for which the ACRs are framed, the time limit stipulated not only in rule 6A of the Rules aforesaid, but the time limit in other rules is more directory than mandatory in nature. Even though, the term used in the rule is shall, but the same would not be mandatory as the consequences of not adhering to the time schedule have not been provided in the rules. It is pleaded that the expression shall by the rule making authority exercising the delegated powers would not, per se, make the provision mandatory, violation whereof renders the proceedings, actions or orders passed non est, and that whenever either a competent legislature or a rule making statutory authority intends to provide for a mandatory provision, with the clear intention for compliance mandatorily and intends the term shall to be interpreted in the mandatory form, such piece of legislation or subordinate legislation provides for consequence of non-compliance of the said provision. The term shall as used in rule 6A, is intended to be understood as a guiding principle and requires to be read as may, not capable of being given a mandatory character resulting into a situation where a delay of one day after thirty days, as stipulated in rule 6A, disentitles the accepting authority to look into the confidential remarks of the reporting authority and the reviewing authority. It is pleaded that it is an experience not only with respect to the State of Gujarat, but with respect to other State Governments as well as Central Government also that rule 6A, insofar as the prescription of time limit is concerned, has been understood, interpreted, implemented and applied as a directory provision, and in most of the cases the reporting, reviewing and accepting authorities have recorded their respective remarks after the time limit stipulated in the aforesaid rules, and that the delay which has occasioned in the case of the applicant is neither an isolated case nor an action of discrimination even as per the case of the applicant, in view of the fact that along with him, 77 ACRs of other 23 IPS officers were also pending before the accepting authority, i.e., the 3rd respondent, with respect to different years, which were decided after the prescribed period stipulated in the aforesaid provision. As regards demitting of the office by the Chief Minister on 24.12.2007, it is pleaded that 77 ACRs of 23 IPS officers were received from the office of CM in the Home Department on 20.12.2007, including that of the applicant, which fact is contemporaneously recorded in the official records of the State Government. The remarks of the accepting authority in the aforesaid ACRs were, therefore, clearly recorded/made by the 3rd respondent prior to 20.12.2007. The Chief Minister, it is pleaded, after declaration of the results of the elections to the Legislative Assembly, on 23.12.2007 submitted his resignation on 24.12.2007 and formed new Government as per the new mandate and took oath of the office of Chief Minister on 25.12.2007, and, therefore, it would be factually incorrect to contend that the remarks of the accepting authority are made after he demitted the office. A copy of the contemporaneous endorsement made at the time of receiving the ACRs from the office of the Chief Minister on 20.12.2007 has been placed on record and marked as Annexure R-2 to the reply. It is further pleaded that on the same very day and simultaneously, the office of the 1st respondent received ACRs of other 22 senior level IPS officers, and, therefore, the allegations made with reference to the 3rd respondent having made the remarks under rule 6A of the Rules of 1970 after demitting the office, are based on mere surmises and conjectures and would be thus incorrect and false as per the record of the State Government. It is further pleaded that even if the case of the applicant is examined hypothetically accepting it to be true for the sake of argument to the effect that the Chief Minister gave accepting remarks after he demitted office, then also the action would not be contrary to rules, inasmuch as, as per explanation under rule 6A(2) of the Rules of 1970 he cannot be treated as having demitted the office if he continues to be a minister in the council of ministers within a different portfolio or in the council of ministers immediately reconstituted after the previous council of ministers of which he was minister with the same or a different portfolio. As regards the downgrading of the ACRs and there being no reasons therefor, it is the case of the respondent that it is a question of law, and there is no statutory or other provision which requires the accepting authority to record elaborate reasons; what is statutorily required of the accepting authority is to record its remarks on the confidential reports; and in case of All India Service officers holding senior positions, when the administrative elected head of the State viz. Chief Minister himself is the accepting authority, he may make his assessment based upon his personal experience and objective overall assessment of the concerned officer and may not give elaborate reasons which may have the potential effect of demoralizing an officer. Secondly, D.O. letter dated 29.4.2005 is neither a statutory provision, being part of any Act of competent legislature, nor is a piece of delegated legislation being part of the Rules. Nonetheless, the said D.O. letter also merely says that the respective authorities should not merely write I agree or I disagree. The accepting authority in the instant case, it is pleaded, has considered the overall performance of the applicant based upon which the said authority has recorded its remarks as required under rule 6A(1) of the Rules of 1970, and, therefore, it would not be correct to contend that no reasons are assigned. It is then pleaded that by changing the remarks from outstanding to very good would not make any difference to the case of the applicant, as for promotion the benchmark is very good. Receipt of the representation made by the applicant against the downgrading of his ACRs is accepted, and in that regard, it is pleaded that the same was put up before the 1st respondent who put up a note dated 2.4.2008. After perusing the said note, the Joint Secretary, GAD, made his observations. The MoS (Home) also sought further clarification from the GAD (General Administration Department), the department which deals with service matters of AIS officers. GAD thereafter clarified the points vide its note dated 10.2.2008, and ultimately both 2nd and 3rd respondents, considering the views expressed by the concerned department, concurred with the view of the GAD. As per the Gujarat Government Rules of Business, 1990 and orders of channel of submissions, all matters thereunder affecting the All India Services and posts have to be put up before the Chief Minister through GAD, and the representation of the applicant had to be decided by the Chief Minister as per the doctrine of necessity. The allegation of personal mala fides said to be entertained by respondents 2 and 3 have been denied, but there would be no need to make a mention of the same.
9. Respondents 2, 3 and 4 have filed separate replies, but as nothing based thereon has been urged during the course of arguments, there would be no need to make a reference of the pleadings made therein.
10. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Even though, it has been pleaded that the Tribunal would have jurisdiction to summarily reject the Application filed under the Act of 1985, and the same needs to be summarily rejected, no arguments in that regard have been raised during the course of hearing. The preliminary objection as regards maintainability of the present OA, the same being premature, as the memorial filed by the applicant, for which provision exists in the Rules, to the President of India, is yet to be decided, is, however, seriously pressed. Shri Tushar Mehta, learned Addl. Advocate General would contend that this Tribunal may dismiss this OA as the applicant under the statutory rules has availed the remedy of filing memorial against the downgrading of his ACRs, which is pending. It is urged that this Tribunal may not entertain the OA and rather dismiss the same for the applicant having exhausted the alternative remedy which has not culminated into any order as yet, and as such the OA would be premature.
11. We have given our anxious thoughts to the contention raised by the learned Addl. Advocate General, but find no substance therein. In view of provisions contained in Section 19 of the Act of 1985, a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal may make an application to the Tribunal as to redressal of his grievances. As per sub-section (4) of Section 19, when the application is admitted by the Tribunal, all proceedings under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate, and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules. Even though, technically, the OA may not have been admitted by specifically so saying, but once the same has not been summarily rejected and notice has been issued, it shall be deemed to have been admitted. The Tribunal has jurisdiction to summarily reject an application after recording its reasons, in view of sub-section (3) of Section 19. Surely, the Tribunal has not dismissed the OA summarily and has rather issued notice, which would be admission of the OA, even though not so specifically stated. Lengthy arguments have been heard from both sides. The proceedings initiated or taken by the applicant under the relevant service rules as to redressal of his grievances in relation to subject-matter of the present OA, which would include, memorial to the President as well, immediately pending before the admission, shall, therefore, abate in view of provision contained in sub-section (4). No doubt, the Tribunal could direct disposal of the memorial, but it is not necessary to do so. Pendency of the memorial would be of no meaning and consequence, as on admission of the OA, the same shall abate. In view of provisions contained in Section 20 of the Act, the Tribunal is not to ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. There is no bar as such so as not to entertain an application if the applicant may not have exhausted the remedy provided to him under service rules as to redressal of grievances. The word used in the statute is ordinarily. That apart, the downgrading of the ACRs of the applicant was done on 24.12.2007. The applicant filed the memorial on 20.11.2009, which has not been decided till date. In view of provisions contained in Section 20(2)(b), a person shall be deemed to have availed all remedies available to him under the relevant service rules as to redressal of his grievances, if he has filed an appeal or made a representation and the same has not been decided for a period of six months. Indeed, the memorial filed by the applicant has not been decided for a period of six months and, therefore, he can well be said to have exhausted all alternative remedies before approaching this Tribunal by filing the OA. In view of provisions contained in Section 21, if the applicant was not to prefer the present OA within a year of expiry of six months from the date he made the memorial, the same would have been barred by limitation. The memorial, as mentioned above was preferred by the applicant on 20.11.2009. The same, as mentioned above, has not been decided till date. If the applicant was to await the decision of the memorial and then to file the OA, the respondents would have raised an objection that the same would be barred by time. In view of provisions contained in the Act of 1985, as mentioned above, and in the facts and circumstances of the case, present OA cannot be dismissed for the applicant not to have exhausted alternative remedies available to him, or for the reason that it is premature.
12. Before we may touch upon the core controversy in issue, we may mention that Shri Mehta, the learned Addl. Advocate General, urged that the applicant cannot be an aggrieved person so as to knock at the doors of this Tribunal, as, at the most, his ACRs have been downgraded from outstanding to very good, and inasmuch as, there cannot be any embargo for the applicant in the matter of his further promotion, as even the very good ACRs would entitle him to any promotion, and, therefore, he is not adversely affected, the OA needs to be summarily rejected. The fact that the ACRs of the applicant have been downgraded from outstanding to very good is not in dispute. Learned counsel representing the applicant would dispute the benchmark for promotion as only very good. In that regard, reference is made to a representation dated 29.7.2009 made by one Vinod K. Mall, Secretary, IPS Association, which is addressed to the Additional Chief Secretary, Home Department, Government of Gujarat, wherein it is inter alia mentioned that by convention, the requirement has now become to obtain at least three outstanding ACRs for promotion of IPS officers. On the basis of the representation aforesaid, it is said that the requirement for promotion of IPS officers is now to obtain at least three outstanding ACRs, whereas others may be only very good. We would not like to go into this question for lack of adequate material before us. However, the contention of Shri Mehta as noted above, in our considered view, has no merit. It is indeed true that the first anxiety of every Government employee is to get promotions in time and supersession by junior becomes a matter of great heart burning, the pangs of which may not go for the rest of the life of the employee. However, promotion is not the only desire of a Government servant. Since we are dealing with the case of an IPS officer, we will make a mention of avenues open to them, in addition to their promotion in the ordinary channel. Before we may, however, do that, we may mention that in the case of the applicant himself, the Central Government had informed the State Government that he was being considered for appointment at the level of Joint Secretary in the Government of India. If the applicant was to go to the Centre, he would have gone on deputation. The state Government wrote a letter to the applicant on 17.3.2008 informing him that he was being considered for Central deputation and asked for his willingness. The applicant intimated to the State Government his willingness to be appointed at the level of Joint Secretary on 13.4.2008. The Principal Secretary (Home) endorsed that the applicant may be considered for Central deputation on 24.4.2008. A similar endorsement was made by the Chief Secretary when the file was put up to the MoS(Home) on 30.4.2008. The applicant was called by the Principal Secretary (Home) and the then DGP, who, it is the case of the applicant, persuaded him to decline Central deputation, on 10.6.2008. The applicant, however, sent a reminder on 16.6.2008 to the State Government to convey his consent to the Central Government. It is thereafter that the applicant received a show cause notice proposing to chargesheet him on 16.6.2008 itself. These facts we have picked up from OA No.48/2011. We may now proceed to mention that an IPS officer may be desirous, and in fact and indeed, the applicant was desirous of going on Central deputation at Joint Secretary level. That is not the only avenue open to an IPS officer. He can be deputed to organizations like, IB, CBI, RAW etc. as well. Number of IPS officers would desire their deputation in these organizations. Such officers who may come on deputation to RAW are also considered and deputed even against some foreign assignments. Those who come to RAW are even eligible to become First and Second Secretaries in Indian Missions abroad. There are number of assignments within and out of the country where an IPS officer may be eligible and where be may be desirous to go. For Central deputation, the same benchmark as may be applicable for promotion, is not the criteria. As per convention in vogue, we are given to understand that out of ten, nine ACRs have to be outstanding. Further, it is the comparative merit of a candidate vying for such posts which becomes the deciding factor. Surely and definitely, one with the outstanding record would be preferred over those who may have only very good or good record. The applicant with downgraded ACRs would not be preferred over those who may have better record than him, thus impeding his deputation to these prestigious institutions/organizations, or to the Centre. An overall outstanding record would be relevant even after retirement of an IPS officer. We would not know as to in what Commissions or Tribunals IPS officers are eligible for appointment during or after their retirement. What immediately comes to our notice is that a high ranking IPS officer who may come at the level of Secretary or Additional Secretary would be eligible to be an Administrative Member of the Central Administrative Tribunal. Selection in such Commissions or Tribunals goes by merit by considering the comparative merits of the candidates and not by the benchmark of very good as may be required for promotion in the hierarchy of the posts in the service. Downward service graph of the applicant would be an impediment in his way for Central deputation as also deputation in organizations as mentioned above, as also for foreign assignments, and for selection on prestigious posts in Commissions and Tribunals. It cannot, therefore, be said that the applicant is not aggrieved from downgrading of his ACRs from outstanding to very good.
13. Downgrading of the ACRs of the applicant for the years 2003-04 to 2007-08 has admittedly been done on the same day, i.e., 24.12.2007. It is not in dispute that the applicant has outstanding service credentials. All his ACRs from 1995-96 onwards are outstanding, except only one which is very good, recorded only by the reporting officer. The said report never came to be assessed by the reviewing and accepting authorities as already mentioned above. The ACRs of the applicant for consecutive four years as mentioned above have been downgraded on the same day, i.e., 24.12.2007. The main plea raised in support of the OA is that the accepting authority as regards the ACRs has necessarily to review and record its remarks on the confidential report, which may be accepted/modified, as is considered necessary, and the report has to be countersigned within one month. Rule 6A(1) of the Rules of 1970 reads as follows:
6A. Acceptance of the confidential report-
(1) The accepting authority shall within one month of the review, record his remarks on the confidential report and may accept it, with such modifications as may be considered necessary, and countersign the report.
Provided that this requirement may be dispensed with in such cases as may be specified by the Government, by general or special order:
Provided further that where the accepting authority has not seen the performance of any member of the Service for at least three months during the period for which the confidential report has been written, it shall not be necessary for the accepting authority to accept any such report.
NOTE.An entry to this effect shall be made in the confidential report. The applicant, in addition to rule 6A of the Rules of 1970, also places reliance upon a letter dated 21.6.2005 written by the Cabinet Secretary, Government of India to the Chief Secretary, Government of Gujarat, accompanied by instructions for completion of ACRs of All India Service officers. In the letter aforesaid, it has been mentioned that DOP&T had prescribed a time schedule for furnishing the ACR forms to the members of the Service reported upon, completion of self-assessment and writing of report by the reporting/reviewing and accepting authorities, vide letter dated 26.5.1988, but the ACRs are frequently received considerably late. It is mentioned that there is need for timely completion of ACRs of members of the Services in order to streamline the process of recording of the ACRs, and that the existing instructions have suitably been revised. We would make a mention of the instructions hereinafter.
14. Whereas, the learned counsel representing the applicant would contend that the provisions contained in rule 6A of the Rules of 1970 followed by instructions dated 26.5.1988 conveyed vide letter dated 21.6.2005 are mandatory, Shri Mehta, the learned Addl. Advocate General representing the respondents, would contend that even though the word shall may have been used in the rule, and the instructions may also suggest a time limit, the same would be directory.
15. The All India Services (Confidential Rolls) Rules, 1970, came into being in exercise of the powers conferred by sub-section (1) of Section 3 of the All India Services Act, 1951. Member of the Service means a member of an All India Service as defined in Section 2 of the Act of 1951, in view of rule 2(d) of the Rules aforesaid. Admittedly, the applicant is a member of an All India Service as defined in Section 2 of the Act of 1951, and, therefore, the Rules of 1970 are applicable to him. These Rules are exclusively as regards maintenance, custody and recording of confidential reports by different authorities. In view of provisions contained in rule 5(1), a confidential report assessing the performances, character, conduct and qualities of every member of the Service shall be written for each financial year, or calendar year, as may be specified by the Central Government ordinarily within two months of the close of the said year. Proviso to the said sub-rule may not be relevant as the same deals with such members of the Service whose confidential reports may not be recorded for the time being. Even in case of a member of the Service who may relinquish the charge of the post, his ACR has to be recorded ordinarily within one month thereafter, as per provisions contained in rule 5(2). In view of rule 5(5), where the authority writing the confidential report under sub-rule (2) or sub-rule (4) of rule 5, retires from service, the confidential report shall be written not later than one month of the date of such retirement. In view of provisions contained in rule 6, the reviewing authority shall, within one month of the receipt of the confidential report, record his remarks on the said report. Sub-rules (1), (2) and (5) of rule 5 and rule 6, are reproduced below:
5. Confidential reports(1) A confidential report assessing the performances, character, conduct and qualities of every member of the Service shall be written for each financial year, or calendar year, as may be specified by the Government ordinarily (emphasis supplied) within two months of the close of the said year. 5(2) A confidential report shall also be written when either the reporting authority or the member of the Service reported upon relinquishes charge of the post, and, in such a case, it shall be written at the time of the relinquishment of his charge of the post or ordinarily (emphasis supplied) within one month thereafter:
Provided that a confidential report may not be written in such cases as may be specified by the Central Government, by general or special order. 5 (5) Where the authority writing the confidential report under sub-rule (2) or sub-rule (4) of this rule retires from service, the confidential report shall (emphasis supplied) be written not later than one month of the date of such retirement. 6. Review of the confidential report 6(1) The reviewing authority shall (emphasis supplied), within one month of the receipt of the Confidential Report, record his remarks on the said report.
Provided that this requirement may be dispensed with in such cases as may be specified by the Government, by general or special order.
6(2) Where the report is written by the reviewing authority under sub-rule (4) of rule 5, or where the reviewing authority has not seen, and the accepting authority has seen, the performance of a member of the Service for at least three months during the period for which the confidential report is written, the confidential report of any such member for any such period shall be reviewed by the accepting authority, ordinarily (emphasis supplied) within one month of its being written.
6(3) It shall not be competent for the reviewing authority, or the accepting authority, as the case may be, to review any such confidential report unless it has seen the performance of the member of the Service for at least three months during the period for which the report has been written, and in every such case an entry to that effect shall be made in the confidential report.
6(4) Notwithstanding anything contained in sub-rules (1) and (2), it shall not be competent for the reviewing authority or the accepting authority, as the case may be, to review any such confidential report-
(a) where the authority reviewing the confidential report is a Government servant, after one month of his retirement from service, and
(b) in other cases, after one month of date on which he demits office.
Explanation:For the purpose of this rule, a Minister shall not be treated as having demitted office if he continues to be a Minister in the council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was Minister with the same or a different portfolio.
16. The instructions issued by the Cabinet Secretary vide his covering letter dated 21.6.2005, which have been sent to all Chief Secretaries, including Chief Secretary of Government of Gujarat, prescribe a time schedule for furnishing ACR forms to the members of the Service reported upon, completion of self-assessment and writing of report by the reporting/reviewing and accepting authorities. The revised instructions accompanying the letter aforesaid clearly stipulate that if an ACR relating to a financial year is not recorded by 31st December of the following year, no remarks shall be recorded thereafter, and the member of the Service will be assessed based on the overall record and self-assessment of the year concerned, if he had given his self-assessment in time. Suffice it to say at this stage that a time-schedule for self-assessment, reporting, reviewing and acceptance has been specified.
17. From the provisions of rules it would be made out that there is a clear distinction in the rules as regards the time-schedule for everything. Different language has been used in different rules as reproduced above. Whereas, with regard to some areas, adherence to the time-schedule is ordinarily, as regards others it is not later than the specified time or have to be or shall be within the prescribed time. Prima facie it may appear from reading of different rules that wherever there is scope for going beyond the stipulated period, the same is mentioned, and that being so, it would appear that wherever the words shall or not later than have been used, there would be no scope to go beyond the stipulated period. However, the contention raised by Shri Mehta may yet have merit inasmuch as, there are no consequences provided for not sticking to the time-schedule mentioned in the rules, and, therefore, use of words like shall or not later than may not be treated as mandatory and be treated as directory. We may also accept the contention of Shri Mehta that the use of words may and shall to be directory or mandatory, is not conclusive, and in the context of the facts and circumstances of the case, the word may may be read as shall and shall may be read as may. In that regard, Shri Mehta places reliance upon some judicial precedents, which may need reference.
18. The Honble Supreme Court in Madhya Pradesh State Electricity Board & another v S. K. Yadav [(2009) 1 SCC (L&S) 353] held that it is well settled principle of law that where a public authority is required to pass an order in terms of the statute within a period stipulated therefor, non-compliance would not vitiate the ultimate order. The facts of the case reveal that the workman had gone on leave. Para 8(b) of the standing order required order to be passed as regards grant or refusal of leave, which was required to be communicated without delay. Para 8(b) of the standing order reads as follows:
8. (b) An employee who desires to obtain leave of absence shall apply to the manager or the officer authorized by him. It shall be duty of the manager or the officer to pass orders thereon on two days in a week fixed for the purpose; provided that, if the leave asked for is of an urgent nature i.e. commences on the date of the application or within three days thereof, orders for the grant or refusal of leave shall be communicated without delay. While dealing with para 8(b) of the standing order, it was observed that the application filed by the workman was required to be considered and order thereon should have been passed within the period specified therein. There were no consequences provided in the standing order if the order was not to be passed within the stipulated time, and that being so, the time stipulated would be only directory and not mandatory. We may quote the relevant observations made by the Honble Supreme Court, which read as follows:
19. It is now a well-settled principle of law that where a public authority is required to pass an order in terms of the statute within a period stipulated therefor, non-compliance wherewith would not vitiate the ultimate order, must be held to be directory in nature and not imperative. In Dinesh Chandra Pandey v High Court of Madhya Pradesh & another [(2010) 11 SCC 500], it was held that the use of the words shall and may not always be decisive; it would depend upon facts of the case, conjunctive reading of the provision with other provisions, purpose sought to be achieved and object behind implementation of the provision. The facts of the case reveal that it was a case of departmental enquiry, where in view of rule 14(8) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, a government servant could take the assistance of any other government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the disciplinary authority was to be a legal practitioner. The expression may, it was held, could not be read as shall. While dealing with the issue, it was observed as follows:
15. The courts have taken a view that where the expression shall has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved, and the object behind implementation of such a provision. This Court in Sarla Goel v Kishan Chand (2009) 7 SCC 658, took the view that where the word may shall be read as shall would depend upon the intention of the legislature and it is not to be taken that once the word may is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in the light of the settled principles, and while ensuring that intent of the Rules is not frustrated. The Supreme Court while holding so, also took into consideration its judgment in Malaysian Airlines Systems BHD (III) v Stic Travels (P) Ltd. [(2001) 1 SCC 509].
19. We have given our thoughtful consideration to the rival contentions raised by the learned counsel representing the parties. It appears to us that depending upon the facts and circumstances of the case, the language of the statute and the purpose of legislation, whereas, the word may used in the statute may be mandatory, the use of the word shall may be directory. Normally, when consequences of non-compliance are not provided in the statute, the word shall may not be interpreted as mandatory. Further, as mentioned above, as also held by the Honble Supreme Court in Dinesh Chandra Pandey (supra), as to whether the use of the word shall in the statute may be directory or not, would depend upon the facts of a given case, conjunctive reading of the provision with other provisions, purpose sought to be achieved and the object behind implementation of the provision. Insofar as, the rules are concerned, the consequences of not adhering to the time schedule for reporting, reviewing and accepting the ACRs have not been provided. In view of the instructions that have, however, been issued, adverted to above, CR form is to be given to the officer reported upon by 1st April. The time schedule for the officer reported upon for completing part-II of the CR form has been fixed as 30th April, whereas the said schedule for the reporting officer to complete the CR is 31st May. The time schedule for the reviewing authority to complete the CR is within one month of receipt, whereas the same for the accepting authority is also within one month of its receipt. The completed ACRs have to reach the cadre controlling authority by 31st August. If the same are not received, the said authority would prepare a list of ACRs not received and follow up the matter with the Secretaries of the concerned Ministers and the Chief Secretaries of the respective States. Nodal officers have to be appointed to ensure that the ACRs of the members of Service, duly completed, are sent to the cadre controlling authority within the stipulated time, i.e., 31st August every year. The State Governments are to designate Principal Secretary/Secretary in charge of Personnel/General Administration Department as nodal officers. They shall send a list each of the members of Service whose ACRs are to be written/reviewed and accepted to the concerned reporting/reviewing/accepting authorities by 15th April every year to enable them to ensure completion of ACRs within the time schedule. Nodal officers have to also ensure that ACRs of the earlier years, which are presently pending with the reporting/reviewing/accepting authorities, are completed and sent to the cadre controlling authorities by 30th June, 2005 positively. This part of the instructions, i.e., pertaining to earlier ACRs which may not have been completed, would exhaust in the year 2005, as the instructions came into being in the said year. Insofar as the ACRs for the years subsequent to 2005 are concerned, the time schedule has been prescribed as mentioned above. If an ACR relating to a financial year is not recorded by 31st December of the following year, no remarks shall be recorded thereafter, and the member of the Service will be assessed based on the overall record and self-assessment of the year concerned, if he had given his self-assessment in time. The reporting officer has to record his comments in the ACR of the officer reported upon within the stipulated time and send it to the reviewing officer, and in case the reporting officer fails to submit the ACR to the reviewing officer within the stipulated period, the nodal officer shall send a copy of the self-appraisal direct to the reviewing officer authorizing him to initiate the ACR, and shall also keep a note of the failure of the reporting officer to submit the ACR of his subordinate in time for an appropriate entry in the ACR of such reporting officer. If the reviewing officer may also fail to submit the ACR to the next higher authority within the stipulated period, the nodal officer shall send a copy of the self-appraisal alone or the self-appraisal along with the assessment of the reporting officer, as the case may be, to the accepting authority, and will also keep a note of the failure of the reviewing officer to record his entries in time for the purpose of recording the same in the ACR of the reviewing officer. The nodal officer has to evolve a suitable mechanism to ensure that the remarks of the reporting, reviewing and accepting authorities are recorded without fail by the 31st December of the year following the year of assessment. If an ACR relating to a financial year is not recorded by 31st December of the following year, no remarks shall be recorded thereafter, and the member of the Service will be assessed based on the overall record and self-assessment of the year concerned, if he had given his self-assessment in time.
20. Purposes of recording the ACRs are manifold. Surely, the first and the most important purpose of recording ACRs is to afford an opportunity to the government servant concerned to make amends to his remissness if any; to reform himself; to mend his conduct and to be disciplined, to do hard work, to bring home the lapses in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require an objective assessment of the work and conduct of a government servant reflecting as accurately as possible his sagging inefficiency and incompetence. The defects and deficiencies brought home to the officer are means to the end of correcting himself and to show improvement towards excellence. The confidential report, therefore, would contain the assessment of the work, devotion to duty and integrity of the officer concerned. This is the basic purpose of recording ACRs of an officer. However, the purpose of adhering to the time-schedule would be different. The main purpose of making timely assessment of an officer, as appears to us, would be that if there are some adverse remarks as regards integrity and efficiency of the officer, he must be informed of the same in time so that he may start improving immediately. The other object of recording timely ACRs would be that if there are some adverse remarks or even the overall grading is below benchmark as required for promotion, the officer, if he may be of the view that the same are not justified, may by representation seek expunction of the adverse remarks or upgradation of his ACR, as the case may be. If the ACRs are recorded after years and years, it may not be possible for the officer to make a meaningful representation, nor for the concerned authorities, like reporting, reviewing and accepting authorities, to even remember as to why there were adverse remarks recorded in the ACR of the officer, or why they had assessed his overall grading below benchmark. Yet another, purpose of recording timely ACRs is that the superior officer may not hold his subordinate to ransom by keeping the Democles sword hanging over his head for years to come. There are indeed some unscrupulous officers who may want their subordinates to dance to their tunes and thus misuse them for their ulterior motives till such time they record their ACRs. Cases are not lacking where this has actually happened. Further, if timely ACRs are not recorded in time or in reasonable time, it may create administrative chaos; timely promotions of officers may become a distant dream, thus thwarting the rightful claim of the employees to go to higher echelons; DPCs may not be able to function for making promotions of the officers to higher echelons without knowledge as to work and performance of the officers; promotions may come about after years, resulting into non manning of the promotional posts.
21. In consideration of the Rules of 1970, instructions dated 21.6.2005, as also the purpose of recording timely ACRs, we are of the considered view that non-recording of the ACRs by reporting, reviewing and accepting authorities within the time schedule, as mentioned in the rules, may not be fatal, inasmuch as the self-assessment of the applicant shall have to be taken as correct. If, however, the time stipulated for the authorities mentioned in the instructions may travel beyond 31st December of the following year, and there be no reasonable explanation for delaying the matter beyond 31st December, the self-appraisal of the officer shall have to be accepted. Likewise, if the reviewing officer may not be able to do the duty enjoined upon it under the statutory rules and instructions by 31st December, the ACR recorded by the reporting officer shall have to be accepted, and so shall be true if the accepting authority may not do its part of the duty by 31st December of the following year. The CR form has to be given to the officer reported upon by 1st April, and he has to complete part-II by 30th April. Whereas, the reporting authority has to complete his part of duty by 31st May, the reviewing and accepting authorities have to do their duty within a month from receipt of the ACR from reporting and reviewing authorities respectively. If the ACR is recorded by all the authorities within the stipulated time, one months margin thereafter has been given for receipt of the ACR by the cadre controlling authority, the stipulated time being 31st August every year. The instructions clearly stipulate that if the ACR relating to a financial year is not recorded by 31st December of the following year, no remarks shall be recorded thereafter. If for instance, therefore, the ACR for the year 2006-07, which is required to be sent to the cadre controlling authority by 31st August, 2007, is not even received by 31st December, 2007, no remarks are to be recorded thereafter. The play in time for the upper limit is provided under instructions itself, and the consequences of the same are also provided. Despite this, considering the purpose of recording the ACRs, as mentioned above, one may still say that consequences of not adhering strictly to the instructions may not be fatal, but surely and definitely, if there be a delay beyond 31st December of the following year, there has to be cause for the same, and if there be no reasonable explanation, the consequences mentioned in the instructions shall have to follow. If the respondents may be unable to state reasons what caused the delay in finalizing the ACRs despite the time stipulated under the instructions, they must come up with causes of the delay, and such causes have to be made justiciable.
22. If the stand taken by the learned Addl. Advocate General is to be accepted, reporting, reviewing and acceptance may be done at any time, like in the present case, for four years, three years and two years respectively, then the Rules of 1970 and instructions issued thereunder shall become nugatory, as if they do not exist at all. In the present case, no reason other than that the Chief Minister being a busy person, has been given. We appreciate that the Chief Minister of a State is indeed a busy person, but once, statutory duty has been enjoined upon him, he cannot abdicate it for years to come, and that he is a busy person would also not be a ground to clothe him with the power to report an officer at his discretion and will. On facts, we may only mention that we required the learned Addl. Advocate General representing the State of Gujarat to state as to when the applicant was reported upon by the Chief Minister, whether other officers were also reported by him on the same day as regards their ACRs for more than a year. The learned counsel sought adjournment, and in all fairness, stated on the basis of a chart prepared by him that 21 officers were reported by the learned Chief Minister on the same day when the applicant was reported upon, but their ACRs were of the year concerned, or, at the most, a year earlier. There was no officer out of the 21 whose ACRs may have been reported upon after four years. Inasmuch as, the delay in the present case in reporting upon the applicant is wholly reasonably, downgrading done by the Chief Minister shall have to be ignored, and the ACRs of the applicant for the concerned years shall have to be termed as outstanding as reported both by the reporting and reviewing authorities.
23. The applicant has yet another grievance. It is his case that once, downgrading is done, it must contain reasons. Reference in this connection by the learned counsel representing the applicant has been made to instructions dated 19.4.2005 issued by DOP&T. These instructions have been specifically issued under the Rules of 1970 with the caption, AIS (CR) Rules-1970 Instructions under Rule 8(2) of AIS (CR) Rules, 1970 regarding adverse remarks. After making a mention of rules 8, 9 and 10 of the Rules of 1970, and keeping in view the suggestions and representations received by DOP&T from members of the Service, the Government took a decision to lay down the criteria in regard to writing of confidential reports and communication of adverse remarks under proviso below rule 8(2). The criteria that may be relevant for the purpose of deciding the controversy in issue, as enumerated in clauses (iii) and (iv) of para 2 of the instructions aforesaid, read as follows:
(iii) In any case where an entry is downgraded or upgraded, the authority downgrading or upgrading the remark and overall grading should state, as part of the entry, the reasons for downgrading or upgrading with adequate justification in accordance with the instructions on the writing of the ACR.
(iv) Where the authority has upgraded/ downgraded the overall grading without giving sufficient reasons, the Government shall treat such an exercise as non-est/invalid. General terms, such as I agree or disagree with the Reporting Officer/Reviewing Officer used by the Reviewing/Accepting Authority shall not be construed as sufficient reason for upgrading/downgrading the overall grading given by the Reporting Authority/Reviewing Authority. These instructions are now being followed even by the DPCs while evaluating ACRs of the officers for finding that they are fit or otherwise for promotion. Wherever the reporting and the reviewing officers may have downgraded ACR of an officer without describing any reasons, the same are being ignored. Number of such cases have come before us from time to time, but we may make a mention of a recent decision recorded by us in OA No.2833/2009 in the matter of Mrs. Parminder v Union of India & Others, decided on 8.3.2011. We observed in the order aforesaid that despite the fact that the reviewing officer in the case of one Shri Sugar Lal Meena had downgraded him, but since there were no reasons for doing so, the DPC had ignored such downgrading and found the officer fit for promotion, and the ACC accepted the recommendation of the DPC. We were dealing with the case of Mrs. Parminder, an Additional Commissioner of Income Tax, in whose case the DPC had found her fit for promotion to the post of Commissioner of Income Tax, but the ACC did not accept the recommendation of the DPC as the DPC had not specifically, in her case, ignored the below benchmark grading given by the reviewing officer. We need not mention as to why relief was given to the applicant as that may not be relevant, but suffice it may to say that the DPC had not gone by the downgrading done by the reviewing officer, which was sans any reasons.
24. Downgrading has to contain adequate justification and when the downgrading is done without giving sufficient reasons, the Government shall treat such exercise as non est/invalid. The alleged justification in the present case is that the overall performance was reviewed by the Chief Minister. The remarks contained in all four ACRs of the applicant while downgrading them from outstanding to very good, read as follows:
In view of the overall performance of the officer, he may be graded Very Good. This is too general and cannot be called an adequate justification for downgrading the ACRs of the applicant. If what the Chief Minister has observed is to be accepted as adequate justification for downgrading an officer, then in every case, what has been mentioned with regard to the applicant, would be mentioned. This general assessment would be against the instructions as sufficient reasons have to be recorded. Before we may part with this aspect of the case, we may mention that Shri Tushar Mehta has cited some judicial precedents in his endeavour to show that when the grading of an officer may be very good, the same may not be communicated only because other officers may have better gradings. We need not refer to any such judgment because the question that is raised by the applicant is that downgrading of his ACRs is without reasons and for that reason as well it needs to be set aside. Learned counsel representing the applicant has also urged that the Chief Minister downgraded the ACRs of the applicant after demitting office, but it appears that inasmuch as, from the records the respondents have established that the downgrading was done before the Chief Minister demitted office, and, in any case, once he again came back as Chief Minister after Assembly elections, therefore, he could do it after demitting the office as well, no serious arguments have been raised on this issue.
25. The applicant, even though has given up, for the time being and has not pressed factual mala fides, he still insists, for the desired relief, on legal mala fides and arbitrariness. Legal malice, as defined in the Blacks Law Dictionary (Fifth Edition, p.806), would mean, thus:
Such consists of either an express intent to kill or inflict bodily harm, or of a wickedness of disposition, hardness of heart (emphasis supplied), cruelty, recklessness of consequences and a mind regardless of social duty which indicates an unjustified disregard or for the likelihood of death or great bodily harm and an extreme indifference to the value of human life (emphasis supplied). Arbitrary has been defined therein (p.96) to mean as follows:
Means in an arbitrary manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic; Corneil v. Swisher County, Tex.Civ.App., 78 S.W.2d 1072, 1074. Without fair, solid, and substantial cause; that is, without cause based upon the law, U.S. v. Lotempio, D.C.N.Y., 58 F.2d 358, 359; not governed by any fixed rules or standard. Ordinarily, arbitrary is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and one not founded in nature of things (emphasis supplied). Huey v. Davis, Tex.Civ.App., 556 S.W. 2d 860, 865. The delay, of course, which in the present case is massive, would still not come within the definition of legal malice as per Blacks Law Dictionary reproduced above. The same may, however, come within the definition of arbitrary, as the accepting authority has to do the exercise as enjoined upon him statutorily within the stipulated time and not at his pleasure. We may not delve on this issue any more and would rather leave it at that, as the applicant would succeed on other grounds raised by him, mentioned above.
26. For the reasons as mentioned above, downgrading done by the Chief Minister of the ACRs of the applicant for the years 2003-04 to 2007-08 from outstanding to very good is set aside. All the ACRs of the applicant, as mentioned above, shall be treated to have graded the applicant as outstanding, and the present Original Application would thus be allowed accordingly. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/