Central Administrative Tribunal - Delhi
Daya Krishna Sharma vs Union Of India on 21 March, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4028/2011 Order reserved on 04.02.2013 Order pronounced on 21.03.2013 Honble Shri George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Daya Krishna Sharma R/o 383, Laxmi Bai Nagar, New Delhi Previously working as: Deputy Secretary, CPWD, Nirman Bhawan, New Delhi. Applicant (By Advocate: Sh. Sewa Singh) Versus 1. Union of India Through: Secretary, Department of Personnel & Training, North Block, New Delhi-110001. 2. Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi-110 001. 3. Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi. 4. Director, Staff Inspection Unit (SIU), Ministry of Finance, 5th Floor, Lok Nayak Bhawan, New Delhi. 5. Mr. James Thomas, Additional Director (SIU Retd., R/o Edathum Prayil House Pension Kunnu P.O.: Phiruvalla, Kerala-689101. 6. Mr. V.C. Tiwari, Director (SIU) retd., Flat No.234, East End Aptts. Mayur Vihar, Phase-I Extn., New Delhi-110096. 7. Mr. Manoj Sahay, Accountant General, Jharkhand, Ranchi-834002. ..Respondents (By Advocate: Shri R.N. Singh) O R D E R
Honble Sh. G. George Paracken:
The grievance of the applicant in the instant application under Section 19 of the Administrative Tribunals Act, 1985 is that the denial of promotion to him to the post of Deputy Secretary from the year 2003 for which the Selection Committee was held in December 2008 was against the existing rules and the various judgments of the Apex Court on the subject.
Brief facts of the case:
2. The Applicant started his career with the Central Government joining the post of Assistant on 16.7.1995. Subsequently, he was promoted as a Section Officer and then as Under Secretary in the years 1980 and 1994 respectively. In July, 2003, he became eligible for consideration for promotion to the post of Deputy Secretary.
3. While working as Under Secretary, the Applicant was transferred to Department of Expenditure (Ministry of Finance) and posted with the Staff Inspection Unit (SIU for short). There he was placed under the 5th respondent Mr. James Thomas, Additional Director (Retd.) who was a promotee from the rank of SIU cadre who wrote his ACRs for the years 1998-1999 and 1999-2000 and reviewed by the 6th Respondent Smt. V.C. Tiwari, Director, SIU (Retd.). In Part I of the ACR form of 1998-1999, the Applicant narrated the resume of duties and studies undertaken during the year. In his self appraisal under Part II of the ACR, he pointed out the difficulties faced by him in discharge of the duties, as under:
Unavailability of a room, messenger (peon) and almirah etc. makes me dependent on a couple of team mates who are quick to extract their pound of flesh, thereby hampering my freedom to work in my independent way. During the year 2000-2001, he was placed under the control of another Reporting Officer and the 6th respondent continued to be his Reviewing Officer. During 2001-2002, he was again put under the control of the 5th Respondent. According to the Applicant, there were no ACRs for the years 2001-2002 as the 5th and 6th respondents deliberately did not write his ACR. On 12.08.2002, his appointment as Under Secretary was regularized w.e.f. 1.7.1994 and on his request he was transferred from SIU to the Ministry of Health in February, 2003. For year 2002-2003 also, there was no ACR due to withdrawal of work from him by the 5th and 6th respondents during the aforesaid period.
4. In January, 2000, the 2nd respondent invited applications to fill up the post of Joint Director in SIU on deputation basis from those who had put in five years of regular service as Under Secretary or equivalent. The Applicant also applied for the said post. However, in February 2002, the 2nd respondent appointed one Shri Nirmal Chander who was junior to him in service as Assistant and also as Section Officer but got regularized in the Defence Civilian cadre as Under Secretary, earlier than him due to the reason that Defence Civilian cadre was a small non-CSS cadre. According to the Applicant, though the 6th respondent, was aware of the aforesaid facts, yet to harass and humiliate him, he was posted under him and declined to put under a Deputy Secretary. He has therefore, made a written representation to the 6th respondent on 22.4.2002 that he was intending to submit an appeal to the President of India under Rule 23 (iv) of the CCS (CCA) Rules, 1965 against being asked to work under him. As a result, according to the Applicant, the 6th Respondent got annoyed with his aforesaid letter and started harassing and demoralizing him. He also threatened him with dire consequences if any such representations were made.
5. Meanwhile, on 20.3.2002, the 6th respondent assigned the work study of L&DO in the Ministry of Urban Development at New Delhi to the Applicant. On 9.4.2002, the L&DO nominated a Liaison officer to deal with the study team and allocated room No.629-A in L&DO office at Nirman Bhavan for functioning of the study team and informed the 6th respondent by sending a copy of the order. Soon after on 2-5-2002, the 6th respondent, acting with vengeance, issued an order declaring him and his entire team on unauthorized absence from headquarters and ordered to show cause as to why the functioning of the entire team from the L&DO office since 16-4-2002 be not treated as unauthorized absence from duty, despite the fact that not only he had the prior information of the teams working from the L&DO office as per L&DO Office letter dated 9.4.2002 but also he and the Joint Director were in contact with him directly. Later on, the 6th respondent, vide order dated 27.5.2002 singled out the applicant and declared him on unauthorized absence from duty from 16-4-2002 to 3-5-2002 and imposed the punishment of 15 days loss of pay on him without any charge sheet or disciplinary proceedings and deducted his 15 days salary from the salary of May 2002 itself. The said illegal order of the 6th respondent was later on set aside by DoP&T vide order dated 23.3.2004.
6. In due course, the 1st respondent, vide its order dated 2.3.2007, appointed the applicant to the post of Deputy Secretary on ad hoc basis and posted to Ministry of Urban Development. Thereafter, the Selection Committee held in November 2008 considered the regular Under Secretaries for preparation of the Select List for the post of Deputy Secretary for year 2003 but in the Annexure A-5 Select List of Deputy Secretaries issued by the Department of Personnel and Training on 26.12.2008, his name was not included. The Selection Committee met again during December, 2008 and January, 2009 to consider the select lists for promotions to the post of Deputy Secretary for the years 2004, 2005, 2006 and 2007. His name was again not included in the select lists of 2004 to 2007 issued by the DoP&T vide their Annexure A-7 and A-8 OMs dated 7.1.2009 and 30.01.2009. The Applicant has, therefore, made the Annexure A-24 application dated 10.01.2009 under the Right to Information Act to know the reasons for not promoting him and Ist respondent vide its Annexure A-25 letter dated 02.02.2009 informed him that his exclusion was due to below benchmark ACRs but the details/years of such ACRs were refused to be divulged to him citing them as secret documents under the Official Secrets Act. But on appeal, the CPIO vide its Annexure A-28 letter dated 31.03.2009 disclosed that it was the ACRs for the years 1998-99 and 1999-2000 he was given the below benchmark grading and the Reporting and the Reviewing Officers were Mr. James Thomas, Joint Director (5th Respondent) and Mr. V.C. Tewari, Director (6th Respondent) respectively. On 27.04.2000 the Applicant again moved an application under Right to Information Act requesting for photocopies of the ACRs for 1998-99 and 1999-2000. The Ist Respondent- DOP&T vide note dated 01.05.2009 again rejected his request. However, on persistent and protracted representation, the DOP&T at last supplied him the copies of the aforesaid ACRs vide the Annexure A-33 letter dated 27.07.2010 and those ACRs are impugned in this OA and their copies have been annexed as Annexures A-3 and A-4 respectively.
7. According to the Applicant, the respondents No.5 and 6 have tampered both those ACRs. He has also stated that there were no ACRs for the year 2001-2002 and 2002-2003. But the gradings in his ACR for the year 2003-2004 was Very Good. The ACR for 2004-2005 has two parts and in the first part he was graded Very Good and in the second part Outstanding. The gradings in the ACR for the year 2005-2006 was Very Good and that of the year 2006-2007 Outstanding. For the years 2007-08, 2008-09 & 2009-10 he was graded Very Good. For the year 2010-11, his ACR grading was 9.10 in the scale of 10, i.e., Outstanding. He has, therefore, submitted that the aforesaid consistent above bench mark ACR gradings are ample evidence to show that the impugned two adverse ACRs made by the 5th and 6th respondents were totally inconsistent with the Applicants 35 years of dedicated and much appreciated service record. He has also stated (his last three ACRs were for the years) 1993-94, 1994-95, 1995-96 and 1997-98 being no report years, his last three ACRs available on record were for the years 1991-92, 1992-93 and 1997-98. For all those 3 years, he was graded as Outstanding. Thus, it is an admitted case that he was deprived of promotion only due to the adverse ACRs of the years 1998-99 and 1999-2000. For preparing the select list of year 2003, the Ist respondent considered the ACRs of following years:-
Year Grading Remarks 1998-99 Good 1999-2000 Average 2000-2001 Outstanding 2001-2002 Outstanding Being no report, the previous years ACR grading was taken 2002-2003 Being no report, the previous years ACR grading was taken .
8. On receipt of the impugned ACRs vide the Ist respondents letter dated 27.07.2010, the Applicant preferred Annexure A-37 representation dated 12.08.2010 to the Ist respondent pointing out the glaring infirmities, tampering, personal bias, prejudices and collusion between the 5th and 6th respondents as reflected on the face of those ACRs. The Applicant prayed to the competent authority to objectively examine his representation and upgrade his ACRs to meet the bench-mark and to include his name in the Select List of year 2003. He has also raised the objections with respect to the objectionable remarks in respect of almost all aspects of the impugned ACRs which the competent authority was bound to consider with reference to his performance and the respondent conduct of the 5th and 6th respondents towards him during the relevant period as well as his past and subsequent performance reports. The said Representation was followed by the Annexure A-38 representation dated 8.4.2011 stating that the below benchmark reports were conveyed to him only vide the DoP&Ts letter dated 27.7.2010 and, therefore, his representations should be disposed of in terms of the OM dated 13.4.2010. He has also pointed out that both the Reporting and Reviewing Officers for both his ACRs for the years 1998-99 and 1999-2000 have already retired on or before May, 2009 and, therefore, they could not have been consulted in terms of DoP&Ts OM dated 13.4.2010. He has therefore, requested the respondents to consider his earlier representation dated 12.8.2010 before his retirement which was due on 31.7.2011. As the respondents were not considering his said representation, he had earlier approached the Tribunal vide OA No. 1908/2011. During the pendency of the said OA, the Respondents issued the Annexure A-2 OM dated 26.07.2011 stating that it did not consider the below benchmark grading as an adverse grading and hence the mandated time period specified in the OM dated 30.10.1978 would not apply and further as those ACRs belonged prior to the reporting year 2008-09, it is not bound by the time limit specified in OM dated 14.05.2009 also. However, according to the Applicant, the 2nd respondent vide its impugned Annexure A-1 order dated 16.03.2011 which is a non-speaking, unreasoned and passed without application of mind and without even looking into his representation, decided to retain the impugned below benchmark gradings for the year 1998-99 and 1999-2000. The 2nd respondent also did not even had a glance of the impugned ACRs as is apparent from the fact that no person of ordinary diligence would have missed to notice the unbecoming conduct of Reporting Officer signing as Reviewing Officer and his contradictory and biased remarks in the ACR. The 2nd respondent also did not deal with even a single issue raised in the detailed representation and failed to see the gross non-application of mind by the 6th respondent in approving the impugned ACRs, mechanically. The 2nd respondent completely ignored his next years Outstanding ACR graded by the 6th respondent himself and failed to apply its mind to the fact that when the same officer was grading him Outstanding and when in the next two years he was graded Very Good, the below bench mark remarks of the preceding year raised a bona fide doubt on the conduct of the reporting/reviewing officers.
9. The Applicant challenged the aforesaid order of the Respondents on various grounds. According to him, an adverse entry has not been defined by the Government in any of its circulars. An authoritative judicial pronouncement on the question was reiterated by the Honble Supreme Court in the case of Gurdial Singh Fijji VS. State of Punjab 1979 (2) SCC 368 wherein it has been held as under:-
The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
10. He has submitted that this Tribunal in the case of Ashok Kumar Aneja Vs. Union of India OA No. 24/2007 decided on 07.05.2008 declared that a below bench mark grading in ACR which deprived the promotional avenues was an adverse remark and could not to be relied upon without an effective opportunity of representation. It was followed by Honble Supreme Courts judgment dated 12.05.2008 in the case of Dev Dutt Vs. Union of India wherein it has been reiterated that a below bench mark/grading was an adverse remark/grading and while declaring that denial of opportunity of representation against such remark was arbitrary and against Article 14 of the Constitution of India it directed for disclosure of ACR remarks in every case. It was further reiterated by a Larger Bench of the Apex Court in Abhijit Singh Dastidar Vs. Union of India 209 (16) SCC 146. Therefore, the Government of India was bound to obey the judicial commands in letter and spirit. The decision of the Honble Supreme Court enunciating a principle of law is applicable in all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from the inception.
11. He has also relied upon the judgment of the Supreme Court in Baidyanath Mahapatra Vs. State of Orissa and Another AIR 1989 SC 2218 wherein the importance of communicating the adverse remarks has been dealt with. The relevant part of the said judgment is as under:-
.The purpose of communicating adverse entries to the Government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend, and improvement in his work and further if the entries are not justified the communication affords him an opportunity to make representation. If the adverse remarks awarded to a Government servant are communicated to him after several years, the object of communicating entries is defeated. It is therefore imperative that the adverse entries awarded to a Government servant must be communicated to him within a reasonable period to afford him opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustified. In the instant case, adverse entries relating to a number of years were communicated to the appellant in one lot under a letter dated 27-2-1978 contrary to the instructions issued by the State Government as contained in Circular No. 29 dated 19-2-1953. Belated communication of the entries resulted into denial of reasonable opportunity to the appellant to improve his performance. Further since adverse remarks for several years were communicated with inordinate delay it was impossible for the appellant to make an effective representation against the same...
12. He has further relied upon the OM No.51/5/72-Estts.(A) dated 20.05.1972 and its relevant part reads as under:-
8.1 It is necessary that every employee should know what his defects are and how he could remove them. Past experience suggests that it would make for better efficiency and contentment of the public services if every reporting officer realizes that it is his duty not only to make an objective assessment of his subordinates work and qualities but also to give him at all times the necessary advice, guidance and assistance to correct his faults and deficiencies. If this part of the reporting officers duty is properly performed, there should be no difficulty about recording adverse entries which would only refer to defects which had persisted despite the reporting officers efforts to have them corrected.
8.2 All adverse entries in the Confidential Reports of the officers should be communicated by the Reviewing Officer after they have been seen by counter-signing authority, if any. This should be done as far as possible within one month of the completion of the report. The communication should be in writing and a record to that effect should be kept in the confidential roll of the officer. Where there is no Reviewing Officer, the adverse entry will be communicated by the Reporting Officer likewise.
9.4 All representations against adverse entries should be decided expeditiously by the competent authority and in any case not more than six weeks from the date of submission of the representation.
13. As regards OMs dated 14.05.2009, 06.01.2010, 13.04.2010, 27.04.2010 and 19.05.2011 (Annexures 10 to 14), are concerned, the Applicant has stated that they were issued in purported compliance of Honble Supreme Court judgment in case of Dev Dutt Vs Union of India [(2008) 8 SCC 725]. The judgment reiterated only the existing law whereby it was already declared that every below bench mark or other adverse entry in the ACR which prejudiced the promotional chances of an employee was an adverse entry and could not be relied upon without communicating, giving opportunity of representation and a reasoned order on the representation. The judgment in that aspect was only a reiteration of existing law and did not propound any new law. It was applicable to all past, present or future cases. But what the Government has done with the Honble Court judgments and how it has overreached them can be seen from its OM dated 14-5-2009. In para (v) of the said OM it has been stated that the new system of communication of entries in the APAR shall be made prospectively only from 1-4-2009 whereas such prospective cut off date is illegal because it would amount to say that it would not supply the adverse ACRs of prior to 2008-2009 despite the judgment in Dev Dutt case. Further, it would mean that the Respondent No.1 is trying to show that they are superior over the Supreme Court and this Tribunal. The applicant has also pointed out that the said respondent has declared in its impugned Annexure P-2 order dated 26-7-2011 that it did not consider the below bench mark grading given prior to 14-5-2009 as adverse and hence it was not bound to decide any such representation within any time frame and in respect of cases prior to its own order dated 14-5-2009, it was free to rely upon the un-communicated below bench mark adverse remarks depriving any employee of his right to be considered for promotion despite the law of the land. As regards the OM dated 6-1-2010 is concerned, according to the applicant, it is also patently illegal as it took away the power of the competent authority to take any final decision on the representation against any adverse ACR prior to 2008-2009 and given the power to its appointee DPC while in post 2008-2009 cases the final decision power remained with competent authority. It has, therefore, raised serious problem to the extent that any officer aggrieved by the adverse remarks in ACRs prior to 2008-2009 will be deprived of the right of being communicated any adverse below bench mark ACR. As the DPC in his case was held prior to 6-1-2010, he has also been deprived of promotion by relying upon the un-communicated remarks. The other aspect of the matter, according to the applicant, is that he would not be aware of any final decision on his representation as the finding of the competent authority would not be final and subject to final view to be taken by the DPC behind his back. Further, the OM dated 13-4-2010 also declares that the adverse ACR prior to 2008-2009 should be disclosed only in case where the DPC was to meet after 13-4-2010 and to consider the ACRs prior to 2008-2009. Thus, it perpetuates injustice to all others who were deprived promotion by the respondents/DPC held prior to 13-4-2010 by relying upon the un-communicated ACRs. Moreover, OM dated 27-4-2010 of the 1st respondent is aimed creating confusion and to undermine the impact of law laid down by the Supreme Court and this Tribunal as the motive behind the said OM is to dissuade the Courts to follow the laid down law and to keep all matters in limbo. It also overlooks the law reiterated by Supreme Court so as to made it ineffective from the very beginning unless overruled by a larger bench and mere reference of the issue to a larger bench does not change the effectiveness of law. The OM dated 19-5-2011 is also, according to the applicant, patently illegal as it restricts the scope of the judgment in Dev Dutt case (supra) to only future DPC held after 13-4-2010 and says that the benefit shall not be available to those affected officers who have retired. Hence, all those OMs are to be declared illegal to the extent they infringe or overreach the law of the land.
14. The Applicant has also given his following gradings in the ACRs from 1998-1999 to 2010-2011 to show that the was a Very good/Outstanding officer almost through out his career particularly from 200-01 onwards:-
1. 1998-99 Good Good
2. 1999-2000 Average Average
3. 2000-2001 Outstanding Outstanding
4. 2001-02 NR
5. 2002-03 NR
6. 2003-04 Very Good Very Good
7. 2004-05 Very Good Very Good
8. 2005-06 1.4.05-4.10.05 05.10.05-31.03.06 Outstanding Very Good Outstanding Very Good
9. 2006-07 Outstanding Outstanding
10. 2007-08 Very Good Very Good
11. 2008-09 Very Good Very Good
12. 2009-10 01.04.09-3.9.09 3.9.09-31.03.10 Very Good 7.15 Very Good Very Good 7 Very Good
13. 2010-11 9.10 Outstanding 9.10 Outstanding
15. His further submission is that his case is squarely covered by the judgment of the Apex Court in the case of Abhijit Ghosh Dastidar Vs. Union of India 2009 (16) SCC 146 wherein in case of a retired officer the Honble Apex Court had directed for promotion with effect from the date when the petitioners junior was promoted. Hence, he sought a direction to be issued to the Respondents to include his name in the select list of the year 2003 as no useful purpose would be served by considering the preceding ACRs which though Outstanding were for the period when the Applicant was in the lower grade and all subsequent ACRs of the Applicant in the grade of Under Secretary were above bench mark. The relevant part of the said judgment is as under:-
7. It is not in dispute that CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22-9-1997 and the order of adverse remarks dated 9-6-1998. In view of the said order, one obstacle relating to his promotion goes.
8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case ((2008) 8 SCC 725: (2008) 2 SCC (L&S) 771: (2008) 7 Scale 403), SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
9. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28-8-2000. Therefore, the appellant also be deemed to have been given promotion from 28-8-2000.
10. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group A, but his retrospective promotion from 28-8-2000 shall be considered for the benefit of refixation of his pension and other retiral benefits as per rules.
11. The appeal is allowed to the above extent. No costs.
16. He has also relied upon the judgment of the High Court of Delhi in the case of Ranjana Kale Vs. Chief Economic Adviser and Another in Writ Petition (C ) No.13488/2009 decided on 01.07.2010 wherein the Respondents were directed to take into consideration the subsequent ACRs. The said judgment being very short is reproduced as under:-
1. The short point involved in this petition is as to whether the Tribunal was justified in directing communication of ACRs for the year 2004- 05 and 2005-06 where the ACRs given to the petitioner were below benchmark and were causing obstacle in his further promotion despite the fact that in his earlier 4 years he has outstanding ACRs and in subsequent years also he has outstanding ACRs.
2. The petitioner submits that in view of a judgment delivered by the principal Bench of Central Administrative Tribunal in V.K.Singhal Vs. Commissioner of Income Tax i.e. OA No. 3524/2009, the procedure to be followed was to just ignore the two ACRs for the two years which were below the benchmark and the petitioners case for promotion should have been considered on the basis of 4 ACRs prior to 2004-05 and by taking into consideration the subsequent ACRs instead of directing him to make a representation and then wait for re-consideration that also by persons who are no more in service inasmuch as at the time when the matter was taken up before the Tribunal, the Review Officer has retired and subsequent thereto even the initiating officer is no more in service.
3. The case of the petitioner is fully covered by the judgment delivered in the case of V.K.Singhal (supra) as also in the case of Abhijit Ghosh Dastidar Vs. UOI and Ors. delivered by the Hon?ble Supreme Court in Civil Appeal No. 6227/2008.
4. In these circumstances, we find it appropriate to modify the order of the Tribunal dated 10.09.2009 to the extent that instead of asking the petitioner to submit a representation and then pass orders about his ACRs for the year 2004-05 and 2005-06, the respondents will consider the issue of promotion of petitioner by convening a review DPC by taking into consideration the ACRs for the year 2000-01, 2001-02, 2002-03, 2003-04 and 2006-07 by ignoring ACRs of the two years namely 2004-05 and 2005-06.
5. The needful shall be done by the respondents within 12 weeks from today.
5. With these observations, the writ petition is disposed of.
17. The Applicant has also relied upon the orders of the Co-ordinate Bench of the Tribunal in OA 3483/2010 Pradeep Kasni VS. Union of India and Others. The relevant part of the said order is as under:-
4. In the light of the above the following reliefs have been sought:
i) To direct to respondent No.2 to hold Review Selection Committee Meeting for the year 1999, 2000 and/or 2001 forthwith and include the name of the applicant in the appropriate select list;
ii) To issue mandamus to the respondents to promote the Applicant from HCS to IAS Cadre from the date his juniors have been promoted with consequential benefits including seniority and arrears of pay;
iii) To issue certiorari for setting aside/quashing the order passed by the respondent No.2 on 9.8.2010 and communicated to the applicant by the respondent No. 3 on 6.9.2010 (Annexure A-8). The relevant portion of the communication dated 09.08.2010 from the second Respondent-Union Public Service Commission (UPSC) reads thus:
3. In this regard it is stated that, as per the AIS (Appointment by Promotion) Regulations, 1955 there is no provision for suo moto review of the select list already prepared and acted upon. The Commission reviews any such select list only on the specific direction of the competent court of law. In the instant case there is no specific direction from the Honble Tribunal to review any select list prepared and already acted upon.
5. We had heard the arguments on 01.11.2010 and the case was closed for judgement. Only the learned counsel for the third Respondent, that is, the Government of Haryana was present. We find that replies have not been filed by any of the three Respondents in the OA. The learned counsel for the third Respondent orally informed that the Government of Haryana had taken up the matter with the second Respondent-Union Public Service Commission (UPSC) following the directions of this Tribunal in OA number 3487 of 2009, adverted to above, and the UPSC informed that suo motu review of the Select List could not be undertaken by the UPSC and specific directions of the Tribunal/court were needed for the purpose. The same was communicated to the Applicant.
Since it is a matter concerning selection of a State Civil Service officer to the IAS, the Department of Personnel and Training (DOP&T) would be an essential party. Although notice had been issued to the DOP&T, yet no one appeared on its behalf and no counter affidavit had been filed. We feel that the reply of the said Department would be necessary in order to decide the issue raised in this OA. Opportunity should be given to the Respondents to file replies. The matter, therefore, needs to be re-heard.
Notice may be given to the Applicant and the Respondents for re-hearing on 14.12.2010 along with a copy of this order.
6. Pursuant to notice issued to DOP&T, the said respondent has entered appearance and filed its reply. The same is only informative as to how the process of appointment of State Civil Service (SCS) officers to the IAS under IAS (Appointment by Promotion) Regulations, 1955 is initiated and finalized, as also the rules applicable for the same. The facts as mentioned in the Original Application and as referred to above have not been disputed. It is, however, pleaded that in the said Regulations there is no provision for review of State Select List of SCS officers, once the same has been approved by UPSC and appointments of officers included therein have been notified by the DOP&T, and, therefore, the prayer of the applicant would not be maintainable.
7. A Division Bench of the Punjab and Haryana High Court, which was incidentally presided over by one of us (V. K. Bali, Chairman) in WP(C) No.7164 of 1997 decided on 24.9.1998 in the matter of Dharam Pal Panwar v State of Haryana, held that if an employee is ignored for promotion for there being adverse remarks in his confidential report which was either not communicated to him or communicated at a stage when he could not put in a meaningful representation, and for that reason the adverse remarks were quashed or expunged, it shall be deemed that no such remarks were there in existence at the time when the employee was ignored for promotion, and that the employer would be enjoined to consider the case of the employee from a date when he was wrongly ignored. In OA No.1883/2008 decided on 17.9.2008 in the matter of Risal Singh Khara v Union of India & others, where the facts were absolutely similar, and the plea raised by DOP&T in opposing the cause of the applicant therein was also the same, we ordered that UPSC would convene a review DPC for consideration of inclusion of the name of the applicant in the IAS select list for the years 1999, 2000 and 2001. We may only state that in the case aforesaid it was commonly stated by the learned counsel for parties that only if the Tribunal was to pass an order, a review DPC for inclusion of the name of the applicant in the select list for the years 1999, 2000 and 2001 would be held, whereas in the present case the learned counsel representing the DOP&T would not so state, even though he has no valid plea to state as to why the review DPC should not be held.
8. Following the decision of the Punjab and Haryana High Court in Dharam Pal Panwar (supra) and for parity of reasons given in Risal Singh Khara (supra), we direct the respondents to convene a review DPC for the year 1999, 2000 and 2001 to consider the case of the applicant for inclusion in the IAS select list, and if he is found fit for promotion, to do so from the date his juniors have been promoted. Let the review DPC be constituted as expeditiously as possible and definitely within two months from today. There shall, however, be no order as to costs.
18. Again, another Co-ordinate Bench of this Tribunal in OA No.3501/2009 Rajiv Singh Tomar Vs. Chairrman-cum-Managing Director, National Buildings Construction Corporation Ltd. and Another decided on 31.01.2011. The relevant part of the said order is as under:-
14. In the light of the foregoing discussion, it is apparent that the promotion came to be denied to the applicant herein on the basis of certain entries which never ever came to be communicated to him. The consideration of all those un-communicated entries for denial of promotion to the applicant herein deserves to be invalidated in view of the law laid down by the Apex Court in Dev Dutt and Abhijit Ghosh Dastidar (supra) cases.
15. On point of fact, it may be noticed that the ACRs of the applicant for the period 1.4.2005 to 31.03.2006 and 1.4.2006 to 31.03.2007 had been initially recorded by the reporting officer to be good but rating thereof was diluted by the reviewing authority.
16. By the vary nature of things, it is the immediate boss who is the best circumstanced to judge the level of performance of an employee. However, it cannot be denied that the authority, higher in hierarchy, may have some reasons to lower the rating. Those reasons have, however, to be noticed and communicated to the employee to enable him to make a representation in the relevant behalf. In this case, the reviewing authority did not record any reason for dilution on the point of rating. That approach of the reviewing authority cannot be upheld by any interpretation of the principles of natural justice. The learned counsel appearing for the respondents has not been able to invite our attention to any factors which may have enabled the reviewing authority to dilute the rating recorded by the reporting authorities.
17. The factual scenario that surfaces is as under:
With the promotion, as Project Manager of the applicant on 20.03.2007 (by which time the period of currency of the penalty imposed upon him was over), nothing pertaining to that period could have enabled the competent authority to deny promotion to him. The un-communicated adverse entries could also not be used to the detriment of the applicant. The fact that the relevant administrative instructions forbad that communication is neither here nor there. The Apex Court view in Dev Dutt and Abhijit Ghosh Dastidar (supra) cases also aids the plea raised on behalf of the application that even good entries, even though apparently adverse in character, had to be necessarily communicated to the applicant as those were below the benchmark required for promotion. The dilutor of rating by the reviewing authority too was invalid for want of any just cause in support thereof. The applicant does, thus, deserve to succeed on all counts. We have not been persuaded to take a contrary view of the facts and legal proposition aforementioned.
18. Lowering of ratings for the period 1.4.2005 to 31.03.2006 and 1.4.2006 to 31.03.2007 shall, accordingly, stand invalidated.
19. We would accordingly allow this OA and direct respondent No.1 to consider and promote applicant to the post of DGM (Engineering) with effect from the date his juniors had been promoted. The applicant shall also be entitled to all consequential benefits thereof. The parties shall, however, bear their own costs of the cause in the facts and circumstances of the case.
19. The Respondents in their reply have stated that the Annexure A-38 representation of the Applicant dated 08.04.2011 requesting for consideration of his earlier Annexure A-37 representation dated 12.08.2010 was examined by Respondent No.1 in the light of the extant instructions on the subject and it was held:
(i) That as per DOP&T OM No.21011/1/77Estt dated 30th January, 1978 (Annexure R-1) all representations against adverse remarks should be decided expeditiously by the Competent Authority and in any case, within three months from the date of submission of the representation. Since the ACRs of the applicant for the years 1998-99 and 1999-2000 contained gradings of good and average respectively, which are not treated as adverse, those were not required to be communicated and hence the time limit prescribed in the said OM was not applicable in his case.
(ii) That in terms of OM NO.21011/1/2005-Estt(A)(Pt.II) dated 14th May, 2009, (Annexure A-10 to the OA) issued after the judgment of the Honble Supreme Court of India in the case of Dev Dutt Vs. Union of India, the new system of communicating the entries in the APAR irrespective of gradings is applicable only prospectively with effect from the reporting period 2008-09. In said OM, there is a 45 days time frame for submission and disposal of the representation. Since, the Applicants ACRs pertain to reporting period 1998-99 and 1999-2000, the provisions of the said OM were also not applicable in his case.
(iii) That in terms of OM No.21011/1/2010-Estt(A) dated 13th April, 2010, (Annexure A-12 to OA) which is applicable to future DPCs where APARs prior to 2008-09 were reckonable, the below bench mark gradings in the ARARs were to be communicated and representations to be decided after consulting the Reporting and Reviewing Officers, if they are in service, and speaking order to be passed. The provisions of this OM were also not applicable in the case of the Applicant as in his case the DPC had been held in 2008, prior to the issue of this OM. Establishment Division of DOP&T has also clarified that the provisions of the OM dated 13.04.2010 are not applicable to cases of Review DPCs.
20. On merits, they have submitted that prior to the issuance of instructions dated 13.04.2010, there was no provision for communicating the below benchmark gradings in ACRs to the Govt. Servants. The case of the Applicant for promotion to the post of Deputy Secretary had been considered on the basis of available ACRs, which were reckonable for the relevant years and he was not found suitable for promotion to the post of Deputy Secretary on the basis of those available ACRs. As regards the representation of the Applicant dated 12.08.2010 was concerned, they have submitted that as per extant orders, the views of the Reporting Officer (Shri James Thomas, Jt. Director) and Reviewing Officer [Shri V.C. Tewari, Director (SIU)] were required to be called for on the points raised by the Appellant in his representation. However, both of them had already retired form service. The case was, therefore, examined based on the remarks and grading in the ACRs for the year 1998-99 and 1999-2000. It was further observed that the Reporting Officer had given detailed reasons in each of the columns of the ACRs and the Reviewing Officer had also concurred with the views of the Reporting Officer and agreed with the grading of the Reporting Officer. The remarks in the ACRs for the period 1998-99 and 1999-2000 could not accordingly be modified and/or the grading of the ACRs upgraded as there was no objective basis on which the same could be modified. Orders to this effect were issued on 16.03.2011. Further, they have submitted that after the judgment of the Honble Supreme Court in Dev Dutts case (supra), instructions were issued by the DOP&T OM, the new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 01.04.2009.
21. As far as OM dated 14.05.2009 is concerned, they have submitted the news system of communicating the entries in the APAR are applicable prospectively only with effect from the reporting period 2008-09. The Applicant was informed accordingly by the Appellate Authority. Pursuant to the judgment of the Supreme Court, the Respondent No.1 (DOP&T) issued instructions vide OM dated 14.05.2009 providing for communicating the full APAR including the overall grade and assessment of integrity to the officer concerned from the reporting period 2008-09. Subsequently, instructions were issued vide OM dated 13.04.2010 that if an employee is to be considered for promotion in a future DPC and his ACRs prior to 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the bench mark, the employee concerned will be given a copy of the relevant ACR for his representation.
22. They have further submitted that when the petition in SLP (Civil) No.15770/2009, now converted to Appeal Civil No.2872 of 2010 (Union of India Vs. A.K. Goel and Others) were called for hearing, the Supreme Court took note of the apparent conflict between the decisions of the Honble Court in Dev Dutts case on the one hand and the judgments in Satya Narain Shukla Vs. UOI 2006 (9) SCC 69 and K.M. Mishra Vs. Central Bank of India 2008 (9) SCC 120 on the other hand and by their order dated 29.03.2010, the Supreme Court referred these appeals to a Larger Bench. Further, in Uttam Chand Nahatas case (SLP Civil Appeal No.29515 of 2010) by order dated 20th/24th December, 2010, the Supreme Court has already taken into account the earlier judgments in Dev Dutts case (supra) and Abhijit Ghosh Dastidars case (supra) and has linked the SLP with the case of A.K. Goel.
23. As regards OM dated 06.01.2010 is concerned, in those cases where the reckonable ACRs prior to the Reporting Period 2008-09 are to be considered in a future DPC on which the adverse remarks of Reporting/Reviewing/Accepting Authorities have been expunged or modified by the competent authority, the overall grading in the ACR have to be kept blank for appropriate re-grading by the DPCs. The existing grading shall be blocked in such cases. Where the authority has upgraded/downgraded the overall grading without giving sufficient reasons, the DPC shall treat such an exercise as non-est/invalid.
24. Further, according to them, as per DPC guidelines, ACRs for the preceding 5 years of the Select List year for which promotion is considered are taken into consideration for assessing the suitability of the officer for promotion. For the Select List year 2003, the ACRs for the years 1997-98, 1998-99, 1999-2000, 2000-01 and 2001-02 were reckonable. If ACR for a year within the reckonable years is not available, then the DPC considers the ACR of a back year. It is not correct that when an ACR is not available, the grading of the previous year is taken to be the grading of the year for which there is no ACR. They have, therefore, submitted that the relief sought should not be allowed in view of the fact that prior to issuance of instructions dated 13.04.2010, there was no provision for communicating the below benchmark gradings in ACRs to the Government Servants. The case of the Applicant for promotion to the post of Deputy Secretary had been considered on the basis of available ACRs, which were reckonable for the relevant years and he was not found suitable for promotion to the post of Deputy Secretary on the basis of those available ACRs and that the competent authority has not upgraded the below benchmark grading in the ACRs of 1998-99 and 1999-2000 and, therefore, there is no case for a review DPC.
25. We have heard the learned counsel for the Applicant, Shri Sewa Ram and the learned counsel for the Respondents. Shri R.N. Singh. We have also perused the relevant documents available on record. The admitted facts in this case are that the applicant was entitled to be considered for inclusion of his name in the Select List for the post of Deputy Secretary for the year 2003 and the D.P.C. held in its meeting held in November, 2008 did consider his name. Similar consideration was made in December, 2008 and January, 2009for preparation of the select list for the year 2004 to 2007. The DPC did not recommend his name in any of those meetings. The reason for not including his name in the said select list was disclosed to him by the respondents vide their letter dated 31.03.2009 in reply to his application dated 19.02.2009 under the Right to Information Act. According to the said reply, his ACRs for the years 1998-99 and 1999-2000 were under Bench Mark and the names of the Reporting Officer and the Reviewing Officer for both the years are S/Shri James Thomas, Joint director and V.C. Tewari, Director respectively, who have been arrayed as respondent Nos. 5 & 6 respectively, by name. In the reply filed by the respondents also, they have stated that the aforesaid two officers were the Reporting and Reviewing Officers respectively of the applicant for the ACRs for the year 1998-1999 and 1999-2000. However, since they have already retired from service, their views could not be called for. Therefore, thereafter the respondents themselves have examined the remarks and gradings in the ACRs of the applicant for the aforesaid years and they also found that there was no scope for any modification to be made in them or to upgrade the gradings made therein.
26. In our considered view, the respondents are not well informed about the action to be taken by them in the aforesaid circumstances in the light of the judgments of the Apex Court in Dev Dutts case (supra) and Abhijit Ghosh Dastidars case (supra). In the former case, the Apex Court held in clear terms that every below bench mark or other entry in the ACR which prejudiced the promotional chances of an employee is an adverse entry and could not be relied upon without communicating, giving opportunity of representation and a reasoned order on the representation. It is applicable to all past, present and future cases. In Abhijit Ghosh Dastidars judgment, the Apex Court again held that non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The said judgment has also held that the uncommunicated adverse report in ACR could not have been acted upon by the Selection Committee. Since the Appellant therein had already retired from service, he is deemed to have been promoted from the date his junior has been promoted. The law laid down in both the aforesaid judgments has been followed by the Punjab and Haryana High Court in Dharam Pal Panwars case (supra) and held that if an employee is ignored for promotion for there being adverse remarks in his confidential report which was either not communicated to him or communicated at a stage when he could not put in a meaningful representation, and for that reason the adverse remarks were quashed or expunged, it shall be deemed that no such remarks were there in existence at the time when the employee was ignored for promotion, and that the employer would be enjoined to consider the case of the employee from a date when he was wrongly ignored. In a similar case of Risal Singh Khara(supra), this Tribunal ordered the Respondent UPSC to convene a review DPC for the year 1999, 2000 and 2001 to consider the case of the applicant for inclusion in the IAS select list, and if he is found fit for promotion, to promote him from the date his juniors have been promoted.
27. Analyzing all the previous judgments included those of Dev Dutt (supra) and Abhijit Ghosh Dastidars (supra), the Honble High Court of Delhi in Writ Petition (C) 5042/2002 and connected petitions U.O.I & Another Vs. V.S. Arora and & Others etc. held as under:-
24.Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC shouldconsider the CRs of the years preceding the period in question and if in any case even these are not vailable, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above.
28. Union of India in one of those Writ Petitions, namely, CWP No.3298/2011 challenged the aforesaid order before the Apex Court vide SLP ( Civil) 1857/2013 (CC 23481/2012) but the same was dismissed vide judgment dated 14.1.2013 having its operative part as under:-
Respondent No.1 joined service as Assistant Executive Engineer in 1977. He was promoted as Executive Engineer in 1987 and as Superintending Engineer in 2001. He was considered by the DPC held in 2008 for the post of Additional Chief Engineer against the vacancies of the year 2007-08 but his name was not included in the list of selected candidates apparently because he could not meet the prescribed benchmark in his ACRs.
OA No.847/2008 filed by the respondent was disposed of by the Central Administrative Tribunal (for short, 'the Tribunal') vide order dated 1.12.2008 by directing the concerned authority to communicate the ACR and consider his case afresh after disposal of the representation.
The issue was again considered by the three-Member Bench of the Tribunal and vide order dated 14.5.2010 the direction given earlier was reiterated. In the meanwhile, RA No.146/2009 filed by the respondent was allowed and the matter was revived for fresh consideration. After the disposal of matter by the three-Member Bench the Tribunal disposed of the original application of respondent No.1 and directed that his case to be considered as per order dated 14.5.2010.
The petitioners challenged the last mentioned order in Writ Petition No.3298/2011. They relied upon order dated 8.8.2010 passed by two- Judge Bench of the High Court in Union of India v. Krishna Mohan Dixit WP(C) No.6013/2010 and pleaded that the un-communicated remarks cannot be ignored while considering the case of an employee for promotion on the basis of merit.
By the impugned order the Division Bench dismissed the writ petition. While doing so, it took cognizance of the judgments of this Court in Dev Dutt v. Union of India (2008) 8 CC 725, Satya Narain Shukla v. Union of India 2006 (5) SCALE 627, K.M. Mishra v. Central Bank of India (2008) 9 SCC 120, Abhijit Ghosh Dastidar v. Union of India (supra) and order dated 24.11.2009 passed in Civil Appeal No.5319/2003 Union of India v. J.S. Garg, order dated 29.11.2010 passed in Union of India v. Ranjana Kale SLP(C) No.29929/2010 and order dated 16.3.2012 passed in Civil Appeal No.6937/2011 Union of India v. N.K. Bhola. The Division Bench also took cognizance of the fact that Sunil Mathur's case (SLP(C) No.7623/2011) was dismissed on 24.1.2012 in the light of the judgment in Abhijit Ghosh Dastidar (supra) and held that there is no valid ground to interfere with the order of the Tribunal.
In our view, after having accepted and implemented the judgment in Abhijit Gosh Dastidar's case (supra) and agreed for disposal of other similar matters in terms of the judgment of larger Bench, the petitioners cannot seek annulment of the order passed by the Tribunal.
The Special leave petition is accordingly dismissed.
However, six weeks' time is allowed to the petitioners to implement the order of the Central Administrative Tribunal, Principal Bench, New Delhi as modified by the High Court.
29. In view of the position, we allow this OA. Consequently, it shall deem that the un-communicated below bench mark ACRs of the applicant for the years 1998-1999 and 1999-2000 were not in existence at the time he was considered by Selection Committee in the year 2003 for his inclusion in the Select List of Deputy Secretaries. Therefore, the consideration of un-communicated below bench mark ACRs for the aforesaid years by the Selection Committee in the year 2003 and subsequent Annexure A-1 impugned order dated 26.07.2011 by which the Respondents have considered the representation of the Applicant but decided to retain the adverse remarks in the aforesaid ACRs are quashed and set aside. Since the respondents have stated clearly in their reply that the Selection Committee held in the year 2003 to consider the case of the applicant for inclusion of his name in the Select Year for the post of Deputy Secretary did not recommend his name only for the reason that the aforesaid ACRs were below the Bench Mark, no useful purpose will be served in directing the respondents to convene any Review Selection Committee in the matter to reconsider the case of the Applicant, particularly in view of the fact that the Applicant has already retired from service as in the case of Abhijit Ghosh Dastidars (supra). However, if the Respondents are of the view that Selection Committee did not consider all relevant aspects before it declined to include his name in the select years 2003, they may convene the Review Selection Committee to consider his case case afresh according to the procedure prescribed by the Honble High Court in W.P. ( C) 5042/2002 and connected cases (supra). If the Review Selection Committee find him fit for promotion, the respondents shall promote him notionally as Deputy Secretary from the date his junior has been promoted. As the applicant was later on promoted as Deputy Secretary w.e.f.2.3.2007 except for arrears of pay for the interregnum period, he will be entitled for all other benefits enjoyed by his immediate junior during his service period. He should also be entitled for the revised pension and all other terminal benefits including arrears of pension, gratuity etc. Further, he will be entitled to have the interest for the delayed payment of terminal benefits for which interest is otherwise payable. Let the respondents pass appropriate orders as expeditiously as possible but in any case, within a period of two months from the date of receipt of a copy of this order.
30. There shall be no order as to costs.
31. Before we part with this order, we observe that Shri James Thomas and V.C. Tiwari who were the Reporting and the Reviewing Officer respectively of the Applicant for the years 1998-99 and 1999-2000 were arrayed as Respondents No.5 and 6 in this OA. The Applicant has narrated certain facts as to how both those officers have jointly harassed him who was graded as a Very Good or Outstanding throughout his career and suddenly he became just only Good in their eyes in the year 1998-99 and further deteriorated to the position of Average in the next year, i.e., 1999-2000. Even though notices were issued to both those officers, now retired, but they have chosen not to file any reply. Because they have not denied the allegations made against them, we shall accept them as correct. In our considered view, the personal prejudices of the Reporting and Reviewing Officer shall not come in the way for objectively assessing the performance of a subordinate officer. In this regard it is suffice to quote from judgment of the Apex Court in Swatanter Singh Vs. State of Haryana and Others AIR 1997 SC 2105 wherein it was held as under:-
..It is true that in view of the settled legal position, the object of writing the Confidential Reports or Character Roll of a Government Servant and Communication of the adverse remarks is to afford an opportunity to the concerned officer to make amends to his remiss; to reform himself; to mend his conduct and to be disciplined, to do hard work, to bring home his lapse 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 incompetency. 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 (SHEKHAR AGARWAL) (G.GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh