Central Administrative Tribunal - Jabalpur
Sanjeev Tiwari vs M/O Railways on 2 August, 2018
Subject: ACR 1 OA No. 545 of 2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
ORGINAL APPLICATION NO. 545 OF 2013
Jabalpur, this Thursday, the 2nd day of August, 2018
HON'BLE MR.NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR.RAMESH SINGH THAKUR, JUDICIAL MEMBER
Sanjeev Tiwari S/o Shri D.P.Tiwari, Aged 37 years,
Deputy Chief Signal & Telecommunication Engineer/Signal
West Central Railway, Jabalpur
R/o 503/D, Rail Saurabh Railway Officers Colony,
Kanchghar, Jabalpur (M.P.) Pin Code-482002 - APPLICANT
(By Advocate - Shri K.C.Ghildiyal)
Versus
Union of India through
1. Railway Board, Through its Secretary,
Ministry of Railway, Rail Bhawan, Rafi Marg,
New Delhi Pin Code 110 001.
2. Shri K.S.Krishna Kumar,
Chief Signal and Telecommunication Engineer,
Central Railway, Chhatrapati Shivaji Terminal Station,
Mumbai (Maharashtra) Pin Code 400 001 - RESPONDENTS
(By Advocate - Shri Vijay Tripathi)
(Date of reserving the order:24.04.2018)
ORDER
By Navin Tandon, AM-
The applicant is aggrieved by recording of average grading in his Annual Confidential Report (for brevity 'ACR') for the part period September 2006 to March, 2007.
Page 1 of 11
Subject: ACR 2 OA No. 545 of 2013
2. The applicant on his selection in the Engineering Services Examination, 2000 conducted by the Union Public Service Commission joined the service of Indian Railways on 03.09.2001. 2.1 For the year 2006-2007 in Part-I ACR for the period from May to September 2006 the applicant was graded as 'good'. However, for 2006- 07 in Part-II ACR i.e. from September 2006 to March 2007 (Annexure A-2) the reporting and reviewing authorities have graded him as 'good'. But the accepting authority graded him 'average'. The said remarks were communicated to him vide letter dated 01.09.2007 (Annexure A-3). His representation against it was rejected vide order dated 20.12.2007 (Annexure A-4). His further representations (Annexure A-6) were rejected by the accepting authority vide order dated 19.0.1.2011 (Annexure A-7). The applicant then preferred an appeal to the Railway Board dated 13.6.2011 (Annexure A-14), but the appeal was not replied by the Railway Board. Then, the applicant filed Original Application No.936/2011 before this Tribunal, which was decided vide order dated 16.10.2011 (Annexure A-16), with a liberty to applicant to file fresh appeal before the Railway Board, who in turn was directed to decide the same within 90 days. Accordingly, the applicant submitted his appeal on 24.11.2011 (Annexure A-17), which was rejected vide impugned order dated 21.02.2012 (Annexure A-18).
Page 2 of 11
Subject: ACR 3 OA No. 545 of 2013
3. The applicant has prayed for the following reliefs in this Original Application:
8(i) The Hon'ble Tribunal may kindly be pleased to summon the entire relevant record from the Respondent No.1 of Annual Confidential Reports of the Applicant from the year 2004-05 to 2011-12 for its perusal.
(ii) The Hon'ble Tribunal may be pleased to quash the complete assessment of the Accepting Authority in the ACR for the year 2006-2007 Part II ACR (September 2006 to March 2007) of the Applicant and direct to treat the said ACR as Good as per the remarks of the Reporting and Reviewing Authorities.
(iii) The Hon'ble Tribunal may kindly be pleased to direct the Respondents to consider the case of the Applicant for appointment to officiate in Junior Administrative Grade w.e.f. 29/07/2011 when his all other Batchmates of IRSSE 2000 Exam have been considered without taking into consideration the assessment of the Accepting Authority in the impugned ACR and appoint him with all consequential benefits. The Applicant's name should be added after serial no.5 Shri Manoj Soni considering Railway Board's order dated 28/08/2001 (Annexure A/1) mentioning marks and rank obtained in the Engg Services Examination 2000 held by UPSC.
(iv) The Hon'ble Tribunal may kindly be pleased to grant any other relief which this Hon'ble Tribunal deems fit and proper may also be passed in favour of the Applicant against the Respondents including cost of the application.
(v) The Hon'ble Tribunal may be pleased to quash the order dated 21/02/2012 (Annexure A/18)".
4. The applicant has contended that the applicant never worked under direct supervision of respondent No.2. However, due to bias he has graded him as average and making him unfit for promotion in his ACR for the part period September 2006 to March 2007. Further in his ACR for the year 2007-2008 again he had remarked the applicant as not fit for Page 3 of 11 Subject: ACR 4 OA No. 545 of 2013 promotion. As per the order dated 19.1.2011 (Annexure A-7), the respondent No.2 recommended the applicant as fit for promotion. However, the allegation of bias and malafide of respondent No.2 get fortified from the fact that as soon as the respondent No.2 was transferred to Mumbai, the applicant's ACRs for the years 2009-2010, 2010-2011 and 2011-2012 took a flight and the applicant was rated as 'outstanding' by reporting, reviewing and accepting authorities (Annexures A-10, A-11 and A-12). After the transfer of respondent No.2 to Mumbai the applicant was promoted to Junior Administrative Grade (ad-hoc) in WCR as per order dated 11.05.2010 (Annexure A-9).
5. On the other hand the respondents have submitted that in pursuance of the direction of this Tribunal in O.A.No.936/2011, the Railway Board has considered the appeal of the applicant and ultimately found that there was no merit in the appeal. The overall grading of the applicant were not inconsistent with the performance of the appraisal as appearing in Para III A & B and Para IV and, therefore, the accepting authority had given the appraisal as 'average' and hence there is no question of down gradation. The performance in subsequent years cannot be a factor for change of performance appraisal of last 5-6 years back. The applicant has been granted promotion in Junior Administrative Grade in terms of order dated 14.03.2013 (Annexure A/19).
Page 4 of 11
Subject: ACR 5 OA No. 545 of 2013
6. Heard the learned counsel of both sides and carefully perused the pleadings of the respective parties and the documents annexed therewith.
7. During the course of arguments the learned counsel for the applicant has taken a plea that the remarks of the accepting authority amounts to downgrading the ACR of the applicant from 'very good' to 'average'. He has further contended that in terms of the principle laid down by the apex court in U.P.Jal Nigam and others Vs. Prabhat Chandra Jain and others, (1996) 2 SCC 363 reasons for down grading should be recorded on the personal file of the officer concerned, and he should be informed of it in the form of an advice. The contention of the applicant is that no such procedure has been followed in the instant case and, therefore, the same is not legally sustainable. 7.1 The learned counsel for the applicant has submitted that it has been clearly emphasised by the apex court in the matters of State of U.P. Vs. Yamuna Shanker Misra, (1997) 4 SCC 7 that the object of writing confidential reports and making entries in the ACRs is to give an opportunity to a public servant to improve excellence. It has further been stated by the apex court as follows:
"Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information Page 5 of 11 Subject: ACR 6 OA No. 545 of 2013 confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/ corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/ corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him".
7.2 The learned counsel for the applicant has further placed reliance on the decision of larger Bench of the Hon'ble Supreme Court in the matters of Sukhdev Singh Vs. Union of India and others, AIR 2013 SC 2741, wherein their lordships have affirmed the view taken in the matters of Dev Dutt Vs. Union of India and others, (2008) 8 SCC 725 and held that every entry in ACR - poor, fair, average, good or very good must be communicated to him/her within a reasonable period and further held that the decision of the Hon'ble Supreme Court in the matters of Satya Narain Shukla Vs. Union of India and others, (2006) 9 SCC 69 and K.M.Mishra Vs. Central Bank of India and others, (2008) 9 SCC 120, and other decisions of the Hon'ble Supreme Court taking a contrary view, are declared to be not laying down a good law.
8. On a perusal of the speaking order dated 21.02.2012 (Annexure A-
18) passed in compliance to the directions of this Tribunal in earlier O.A. No.936/2011 filed by the applicant, we find that the competent authority Page 6 of 11 Subject: ACR 7 OA No. 545 of 2013 has very elaborately considered the request of the applicant and passed a reasoned order. The contents of said order dated 21.02.2012 read thus:
The competent authority has considered the request of Shri Sanjeev Tiwari, SS/IRSSE/WCR and has recorded the minutes as under:-
"As per the orders dated 16.11.2011 of Hon'ble CAT/Jabalpur in OA No.936/2011, the Railway Board shall decide the fresh appeal filed by the applicant against the order passed by the Accepting Authority. In pursuance to the directions of CAT/Jabalpur I am now considering the Appeal dated 24.11.2011 of Shri Sanjeev Tiwari.
(2). It is observed that the competent authority (Chief Signal & Telecommunications Engineer/ West Central Railway) had considered the representation submitted by Shri Sanjeev Tiwari regarding the ACR for the year 2006-07 (Part-II) i.e. for the period from September 2006 to March 2007. It is also observed that as per DOP&T's instructions dated 13.04.2010, there is no provision for appeal.
(3). I have gone through the Appeal dated 24.11.2011 submitted by Shri Sanjeev Tiwari and I have also carefully considered the observations of the Accepting Authority (Shri K.S.Krishna Kumar, Chief Signal & Telecommunications Engineer, West Central Railway). His observations are given below:
"For this period, the overall grading given to the officer by the Reporting & Reviewing Authorities was 'Good' & 'Fit for promotion'. This was not in consonance with the individual grading against various Attributes under B of Part-III. Five out of six Attributes are 'Average' and sixth one is 'Good'. The performance assessment under A of Part- III, also brought out that there has been shortfall in the output and the officer is slow in work, needs practical application of knowledge, needs improvement in management etc. Since the overall grading was not in consistence with the performance appraisal under Part-III, the grading was modified as 'Average' which is in consistence with the appraisal under Part-III. This was also communicated to the officer. The Representation submitted by the Officer was also disposed off.
The Reporting Officer while considering his Representation now, based on sympathy and concern for his future career/ promotional aspects has upgraded the officer from 'Good' to Page 7 of 11 Subject: ACR 8 OA No. 545 of 2013 'Very Good' in over all and Attributes have been upgraded to 'Good' which is still inconsistent. I am unable to agree to this amendment/upgradation given by the Reporting Officer. The Reviewing Officer has reported that the officer has shown considerable improvement in his attitude, aptitude, work output and in other functional areas now which is a result of feed back mechanism of the performance appraisal earlier. The Reviewing Authority has also opined that lenient view should be taken and gone on record that a satisfied officer will be very much better asset to the Railway. I agree with his opinion, regarding organization interests, but this cannot be considered as a basis for effecting upgradation of grading. However the appraisal has been logically done. Further, no new input has been brought out to the light so as to effect any change in the grading. Thus, there is no merit in the representation for change in the overall grading given for the year 2006-07 (Sept.06 to March-07) (Part-II) i.e. 'Average'& 'Not Fit for Promotion'.
(4). From the observations of CSTE/WCR reproduced above, it is clear that competent authority has passed the orders after due consideration of the representation and Shri Sanjeev Tiwari's performance. Sufficient reasons have been given by him for his decision. There does not appear to be any reason for arriving at a different conclusion and Shri Tiwari's performance in the subsequent years is not a basis for upgrading the grading in the ACR of earlier year. In view of this, I have come to the conclusion that expunging of adverse remarks in the ACR of 2006-07 (Pt.II) i.e. September 2006- March 2007 is not justified and no revision of grading in the ACR is called for. As a result, I find that there is no change in his overall assessment necessitating reconsideration for his empanelment to JA Grade with reference to his juniors".
(5). Shri Sanjeev Tiwari may be advised suitably"
9. To better appreciate whether the aforementioned order has been passed on the basis of remarks recorded in applicant's ACR, it would be better to reproduce the relevant remarks of the reporting & reviewing authorities on the ACR of the applicant for the year 2006-2007 (Part-II): Page 8 of 11
Subject: ACR 9 OA No. 545 of 2013
Reporting Officer
A. Nature and quality of work
1. Comment on Part-II - Specifically state whether you agree with the answers relating to objectives, targets, achievements and short- falls.
Remarks : I agree with the answers relating to objectives & targets, however, there has been shortfall in the sense that speed at which works are done is very slow.
2. Task relevant knowledge - Specific comments on (i) level of knowledge of functions, (ii) related instructions, and their application.
Remarks : Level of task relevant knowledge is satisfactory but further improvements are expected in practical applications and day to day working.
3. Quality of output - Quality of performance with regard to standard of work and programme objectives, constraints, exigencies in his work, etc. Remarks : Quality of performance and standard of work is satisfactory but time management needs improvement. B. ATTRIBUTES
1. Attitude towards work - Dedication, motivation, commitment to objectives, willingness to learn & systematise work - Average
2. Decision making ability and judgment - insight and ability to weigh pros and cons and take decisions - Average
3. Initiative - Capacity and resourcefulness in planning and handling unforeseen situations, willingness to take additional responsibility and new areas of work.- Average
4. Ability to guide, inspire and motivate - capacity to guide, motivate, review performance, obtain willing support by own conduct and to inspire confidence. - Average
5. Communication skill (written & oral) Ability to formulate and present facts, conciseness and persuasiveness - Average
6. Inter-personal relations, team work and co-ordinating ability - Personal relations with superiors, colleagues and subordinate, capacity to work as a member of a team and to promote team spirit, inter departmental co-operation - Good
10. On a minute perusal of the remarks recorded in the applicant's ACR of the relevant year as reproduced above, as well as the order passed by the competent authority in terms of the direction of the Tribunal as Page 9 of 11 Subject: ACR 10 OA No. 545 of 2013 reproduced above, we do not find any illegality or irregularity of the assessment made by the accepting authority on the performance of the applicant on the basis of the remarks recorded by the reporting & reviewing authorities, as well as on the speaking order passed by the competent authority in compliance to the directions of this Tribunal.
11. We have also gone to the decisions of the Hon'ble Supreme Court relied upon by the applicant and considering the facts of the present case, we are of the considered opinion that these decisions are not applicable to the facts of the present case.
12. The Hon'ble Supreme Court in the matters of Rajendra Singh Verma Vs. Lt. Governor (NCT of Delhi), (2011) 10 SCC 1 specifically held thus:
"147. Writing the confidential report is primarily and essentially an administrative function. Normally tribunals/courts are loath to interfere in cases of complaints against adverse remarks and to substitute their own judgment for that of the reporting or reviewing officers. It is because these officers alone are best suited to judge the qualities of officials working under them and about their competence in the performance of official duties entrusted to them. Despite fear of abuse of power by prejudiced superior officers in certain cases, the service record contained in the confidential reports, by and large, reflects the real personality of the officer".
13. Accordingly, since the main relief sought for by the applicant to quash the complete assessment of the accepting authority in the ACR for the year 2006-2007 Part II ACR (September 2006 to March 2007) of the Page 10 of 11 Subject: ACR 11 OA No. 545 of 2013 Applicant and direct to treat the said ACR as Good as per the remarks of the reporting and reviewing authorities, can not be granted in view of the aforesaid discussions. Consequently, the relief sought for by him for direction to the respondents to consider him for appointment in JAG w.e.f. 29.07.2011 etc. also cannot be granted.
14. In the result, the Original Application is dismissed. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
rkv
Page 11 of 11