Central Administrative Tribunal - Delhi
Shri Sudhir Chopra vs Union Of India Through on 25 August, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.2808/2012 Reserved on: 06.05.2015 Pronounced on:25.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri Sudhir Chopra S/o Late Sh. I.S. Chopra Aged about 61 years Resident of E-103, Kalkaji New Delhi-110019. Applicant (Applicant in person) Versus 1. Union of India through Secretary to the Govt. of India Ministry of Defence South Block, New Delhi. 2. Director General of Defence Estates Raksha Sampda Bhawan Ulaanbaatar Marg, Delhi Cantt. 3. Smt. Veena Maitra Ex. Director General Defence Estates C 497 Sushant Lok Phase I Gurgaon 4. Shri CR Mohapatra Ex Director General Sriguru Ashram, Chintamaniswar Area, Bhubaneshwar -751006 (Orrisa) 5. Shri Balsharn Singh Ex Director General of Defence Estates B-691, 2nd Floor Metro View Apartments Sector 13, Dwarka New Delhi-110075 6. Secretary, DOPT Ministry of Personnel, Public Grievances and Pension North Block, New Delhi. 7. U.P.S.C. Dhaulapur House, Shahjahan Road, New Delhi 110069. ...Respondents (By Advocates: Sh. M.K. Bhardwaj and Sh. Ravinder Aggarwal) ORDER By Dr. B.K. Sinha, Member (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 impugning five orders issued by the respondents bearing No.106/8/DGDE/APAR/2010/44/ PC-1;No.106/8/DGDE/APAR/2010/44/PC-2; No.106/ 8/ DGDE/APAR/2010/44/PC-3; No.106/8/DGDE/APAR/ 2010/44/PC-4 & No.106/8/DGDE/ APAR/ 2010/44/PC-5 all dated 29.02.2012, informing him that his representations against ACRs for the period 2000-01 to 2005-06 have been considered by the respondent no.1 i.e. Secretary, Ministry of Defence, in compliance of the Tribunals orders dated 09.02.2012 passed in OA No.3677/2011 and rejected.
2. The applicant has prayed for the following relief(s):-
A. The leaned Tribunal may kindly summon all records pertaining to his various representations addressed to Raksha Mantri, complaints pertaining to his harassment victimization, transfer to North East notes sent by respondent Nos. 3 & 4 to Respondent no.1 to initiate disciplinary proceedings against the applicant and CVCs advice to not single out the applicant who is a whistle blower, how his representation against ACRs were dealt with, in nutshell entire record held by respondent Nos. 1 & 2 along with ACRs of all the officers promoted to SAG/HAG since 2006;
B. Set aside and quash the impugned orders particulars of which are given in para 1 of the OA rejecting the representations of the applicant against his ACRs and consequently quash DPC recommendations relating to the applicant holding him unfit for promotion.
C. Issue time bound direction to respondents to promote the applicant to SAG from the date his junior Mrs. Shubha Kapoor was promoted in 2006 and to HAG from the date his batch-mates were promoted to this grade or from the date of occurrence of respective vacancy in HAG, whichever is earlier.
D. All consequential financial benefits flowing from promotion to SG and HAG with retrospective effect with annual increments and re-fixation of pension, leave encashment amount with interest @ 12% P.A. E. Exemplary damages to the applicant for his harassment humiliation and victimization over a prolonged period of time (from 2000 to 2012) for having exposed high level corruption in Defence Estates department. The applicant underwent extreme humiliation as he was made to work under his juniors from 2010 to 2012 by denying him promotion to SAG and HAG.
F. Any other direction which the Honble Tribunal may consider just and reasonable to secure the ends of justice.
3. Before coming to the factual matrix of the case, it is pertinent to mention here that this is the 8th round of litigation between the applicant and the respondents. The facts of the case, in brief, are that the applicant was an officer of Indian Defence Estate Service (1980 batch), who retired on superannuation on 29.02.2012 from JAG post without getting further promotions to SAG and HAG. It may be stated that the applicant is a self-proclaimed whistle blower, who claims to have reported about motivated and fraudulent handling of cases by senior officers in the office of respondent no.2. He also claims to have informed the respondent no.1 and the CVC pertaining to such shoddy and fraudulent dealing in cases like Maharaja of Kota land case; Ahemdabad House Ballard Estate Mumbai case, COD Kandivali land scam case etc., and it was on this account he fell victim to hostile discrimination and was posted to Shillong in the year 2000 after he had lodged a formal complaint with CVC in June, 2000. He was retained at Shillong for almost a period of five years against the prescribed tenure of two years that too without any work, charter of duties and even minimum required staff like Peon and Stenographers. During this period, he had also been given additional charge of Defence Estate Officer but the same was abruptly withdrawn within a short period of six months after he had unearthed another massive fraud which came to be known as Union of India versus State of Assam. On 01.04.2005, the applicant was posted on a faculty position in National Institute of Defence Estate Management [hereinafter referred to as NIDEM]. Soon after, the respondent no.4 one C.R. Mahapatra, against whom the applicant had filed five complaints earlier in respect of Ahmedabad House Hiring case and the respondent no.1 had ordered investigation into the matter, became Director General of NIDEM. In retaliation, the applicants submits, the respondent no.4 recommended applicants compulsory retirement implicating him in a false case and was instrumental in getting chargesheet issued against him on totally false, frivolous and absurd charges including signing of letters as Joint Director and not For Director and also writing a letter to Transparency International India to supply their free of cost publication titled India Corruption Studies to improve governance, etc. The applicant further submits that proceedings against him were deliberately prolonged so as to deny him promotion to SAG as would be evident from file notings at page 146-2004. The disciplinary proceedings for minor penalty which should have been decided in two months in 2007 itself, but were closed in 2011 without imposing any penalty as false, frivolous and absurd charges could not be proved. Initially a penalty of censure had been imposed upon him on 17.06.2008 which was quashed by the Tribunal vide its order dated 13.01.2009 passed in OA No.819/2008 directing the disciplinary authority to consider the charge afresh and pass a speaking and reasoned order. The disciplinary authority finally disposed of the proceedings on 01.02.2011 without having imposed any penalty since no charges could be proved. In the meantime, due to contemplation of disciplinary proceedings against the applicant, his ACRs with un-communicated remarks were placed before the DPC whose recommendations were placed in a sealed cover. The adverse remarks contained in the applicants ACRs were never communicated to him, as claimed by the applicant. Even after closure of the disciplinary proceedings in favour of the applicant, in February, 2011, the sealed cover had never been opened and the applicant was compelled to approach the Tribunal and the Tribunal, vide order dated 15.07.2011 passed in OA No.2515/2011, directed the respondents to open the sealed cover of the applicant and give effect to that. Consequently, the applicant was conveyed that the DPCs held in 2007 and 2009 had not found him fit for promotion to SAG. Aggrieved, the applicant challenged the decision of the DPC before the Tribunal by filing OA No. 3677/2011 on the ground that the adverse remarks in the ACRs had never been communicated to him and his ACRs were not placed before the reviewing/accepting authorities after undue delay to mar his career prospects and his representations against ACRs had summarily been rejected. While disposing of the aforesaid OA, the Tribunal directed the respondent no.1 to decide the applicants representations dispassionately within fifteen days but definitely before his superannuation on 29.02.2012.
4. The allegation of the applicant is that the respondent no.1 failed to decide his representations dispassionately and passed the impugned orders which are patently arbitrary with glaring instances of non-application of mind which, according to the applicant, are as under:-
(i) The impugned orders are totally silent on the point as to why the adverse remarks were not communicated to the applicant and on this ground alone, the instant Original Application deserves to be allowed;
(ii) The remarks of the reporting/reviewing officers were deemed as final because the concerned authorities had retired and there was no opportunity to seek clarification qua their comments/findings on the applicants ACRs under question. The applicant has relied upon the decision of the Honble Supreme Court in Kusheshwar Prasad Singh versus State of Bihar [2007 (11) SCC 447 para 16] to contend that a wrongdoer ought not to be permitted to make profit out of his own wrong. This is also contrary to the DOP&T instructions;
(iii) Respondent no.1 declined re-consideration in respect of unfair, vague and cryptic remarks stating that there was no specific guidelines to write the ACRs in the manner in which applicants ACRs had been written. To the contrary, DOP&T instructions hold that the remarks should not be vague or ambiguous.
(iv) The respondent no.1 also rejected the plea of delay in writing ACRs by the reporting/reviewing authorities on the ground that there were no instructions/provisions which mandated any time limit within which the ACRs had to be written. The applicant submits that even when there were no specific instructions providing time limit, recording of ACRs is governed by the principle of reasonableness enshrined under Article 14 of the Constitution.
(v) The applicant challenges the stand of the respondents that allegations of victimization and harassment were vague and no specific instances have been cited. Per contra, the applicant claims that his communications dated 07.10.2010, 03.02.2011 and 18.04.2011 clearly disclose the victimization and harassment.
(vi) The respondent no.1 failed to consider the glaring errors in the ACRs e.g. ACRs for 2003-04 & 2004-05 as they were written on the same day after delay of 27 months and 15 months respectively; ACRs for 2003-04 and 2004-05 are verbatim showing complete non-application of mind by the reporting officer; even the impugned orders qua all the ACRs in question are verbatim and lacking any application of mind;
(vii) Respondent no.1 is estopped from questioning the service record of the applicant after having appointed him as Joint Director, NIDEM on the basis of his outstanding records;
(viii) Respondent no.1 has also failed to appreciate that any goals/objectives/targets/performance could not have been assessed objectively to his advantage;
(ix) Respondent no.2 has resorted to fudging of ACRs and misrepresentation apart from violation of DOP&T instructions on the subject. On one hand the respondent no.3 had written a letter dated 17.04.2003 to all Principal Directors about non-receipt of ACRs of the applicant for the year 2001-02 along with seeking ACRs of other officers, on the other hand, ACRs made available to the applicant in the year 2010 reveals that backdating was done since letter of the respondent no.3 written in 2003 reminded Principal Director to submit all pending ACRs. The applicant submits that had the ACRs been written in 2002 itself, what was the need to seek such ACRs in the year 2003. It is also submitted that ACR of 2002-03 was received before the ACR of 2001-02;
(x) The respondent no.2 again misrepresented the facts to respondent no.1 by stating that the representation against ACRs for 2000 to 2006 were only meant for consideration of NFUG whereas in the year 2010 vide respondent no.2s letter the applicant was communicated the ACRs for the year 2000 to 2006 for the first time that too without making a mention that his representation would be considered only for the limited purpose of consideration for grant of NFUG.
The applicant has further alleged mala fide both in fact and in law against the respondents on the following grounds:-
(i) On the contention of the respondents that the reporting and reviewing authorities have since retired and hence there is no opportunity to seek further clarification from them, the applicant submits that on the face of it the orders disposing of representations deserve to be set aside since there is no basis whatsoever for the respondent no.1 to arrive at any conclusion upholding the entries made in the ACR and, therefore, the order is completely bereft of details, consultations, discussion, consideration which formed the basis of passing the impugned orders.
(ii) The conclusion arrived at by the respondents that there are no prescribed standards regarding the details in which remarks are to be recorded in ACR and hence the remarks recording by the reporting and reviewing authorities cannot become non est merely because they are brief, is completely contrary to the guidelines on the subject. The DOP&T guidelines on writing ACRs were referred and provided to the respondent no.1 along with the representations of the applicant. Therefore, there is no logic for the respondent no.1 to arrive at the above conclusion;
(iii) It is also wrong to submit that there is no prescribed limit for recording entries in the ACRs and the delay in writing ACRs is completely irrelevant. The applicant submits that it is settled law that entries in the ACR have to be made within a reasonable period of time. DOP&T has time and again issued various OMs regarding adherence on time schedule for writing ACRs. In this regard, the applicant has relied upon the decision of the Honble Supreme Court in Sukhdev Singh vs. Commissioner, Amrawati Division & Anr. [(1996) 5 SCC 103] wherein it has been held that ACRs have to be completed within reasonable time as per the prescribed schedule and adverse remarks/below benchmark grading are required to be communicated within a reasonable time.
5. The respondents have filed a joint counter affidavit raising preliminary objections qua the instant OA being barred by limitation and mis-joinder of parties. The respondents submit that the applicant is seeking promotion from 2006 whereas the instant OA has been filed in 2012. The respondent nos.3 to 5, who stood retired from service before the impugned orders had been passed and even before the order dated 09.02.2012 passed in OA No.3677/2011, have been impleaded as parties. It is also submitted that the 4th respondent namely C.R. Mohapatra was appointed as Member (Administrative) of this Tribunal following his retirement on 30.11.2007. The respondents have further submitted that the applicant was charge sheeted for administrative misconduct vide order dated 01.02.2007 which finally concluded in administrative warning vide order dated 01.02.2011. After having given history and brief synopsis of the orders passed in respect of ACRs under challenge, the respondents denied the allegation of non-application of mind on their part. To the contrary, the respondents have submitted that the applicant has committed a grave error by leveling allegations against a person like the respondent no.4, who was a man of unquestioned integrity and had been appointed as Member (Administrative) of this Tribunal following his retirement. The respondents also denied any injustice done to the applicant and submitted that due process for disposal of representations was followed and they were decided as per law. The respondents further submit that the order of the respondent no.1 is detailed, reasoned and speaks volume of application of mind based upon deep understanding of legal issues. The applicants claim of being a whistle blower has also been questioned, the same not being recognized at any fora. To the contrary, the applicant is dubbed as an incompetent officer filing false complaints against senior officers of integrity. It is submitted that the averments made by the applicant in the OA are not supported by documents and as such cannot be relied upon. The respondents further submit that the applicant has been graded as per his performance and they have proceeded strictly as per the rules. It is the case of the respondents that they have neither violated any rules nor instructions on the subject.
6. We have carefully gone through the pleadings of the rival parties as also the documents so submitted by them. At the very outset, we deem it appropriate to state that it is not within the scope of our consideration to go into the various allegations that have been leveled by the applicant against the respondents, serious as they may be. We have also gone through the official records submitted by the learned counsel for the respondents and patiently heard the learned counsel for both the parties on the basis of which the following issues are germane for deciding the controversy involved in the instant OA:-
1. Whether consideration of applicants representations in respect of his ACRs for the period 2000-01 to 2005-06 was as per the rules with due application of mind and under instructions of the DOP&T on the subject?
2. Whether the charges of mala fide leveled against the respondents are sustainable in law?
3. What relief, if any, could be granted to the applicant?
7. Insofar as first of the issues is concerned, we begin our examination as to how ACRs are written; what is the purpose of recording of ACRs/APARs and how the judicial pronouncements help to develop the subject. It is to be noted that this Tribunal has already dealt with this issue in case of Devendra Swaroop Saksena versus Union of India & Ors. [OA No. 4258/2013 decided on 19.12.2014], relevant para whereof is being reproduced hereunder:-
17. Insofar as the first of the issues is concerned, we begin by examining all the provisions relating to filling up of ACRs/APARs and different decisions of the Hon'ble superior courts over the same. For this process, we have consulted Chapter 53 of the Swamy's Complete Manual on Establishment and Administration for Central Government Officers [14th Edition-2014]. The first part of this Chapter deals with the confidential reports while the later part deals with Annual Performance Appraisal Report (APAR). Under this system, consequent to the judgment in Dev Dutt versus Union of India's case (supra), the APAR was introduced in order to realize the objective of writing confidential reports, making entries and giving an opportunity to the public servant to improve his/her performance. The APAR system includes communication of overall grading and assessment of integrity to the concerned officer by giving an opportunity to make representation against the said entries and final grading within fifteen days from the date of receipt of the entries in the APAR restricted to specific factual observations contained in the report leading to assessment of the officer concerned in terms of his/her attributes, work output, etc. The new system of communicating the entries was made applicable from 01.04.1999 while the competent authority was given the mandate to consider representations in consultation with reporting and/or reviewing officers and shall decide the matter objectively based on the material placed before him within a period of 30 days from the date of receipt of such representations. We have further considered the Govt. of India's OM dated 06.01.2010 which deals with the effect on modification/expunction of adverse remarks. OM dated 13.04.2010 provides as to how the below benchmark ACRs, prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of final grading, is to be decided objectively in a quasi judicial manner. Para 2 of the OM dated 13.04.2010 reads as under:-
As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the reporting and reviewing officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the reporting and reviewing officer if they are still in service on the points raised in the representation vis-`-vis the remarks/grading given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of reporting/reviewing officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
We also take note of the OM dated 27.04.2011 which provides as to how the ACRs with below benchmark grading are to be considered in past DPCs. The OM dated 19.05.2011 also directs the competent authority to consider representations on the basis of material placed before him once again within 30 days on receipt of such representations objectively. Annexure-III of Chapter-53 provides time schedule for submitting APARs, which reads as under:-
TIME-SCHEDULE FOR PREPARATION OF CONFIDENTIAL REPORTS Sl. No. Nature of action Date by which to be completed 1 Distribution of blank CR forms to all concerned (i.e. to officer to be reported upon where self-appraisal has to be given and to Reporting Officers where self-appraisal is not to be given) 31st March (This may be completed even a week earlier) 2 Submission of self-appraisal to Reporting Officer by officer to be reported upon (where applicable) 15th April 3 Submission of report by Reporting Officer to Reviewing Officer.
30th June 4 Report to be completed by Reviewing Officer and to be sent to Administration or CR Section/ Cell or accepting authority wherever provided.
31st July 5 Appraisal by accepting authority, wherever provided 31st August 6
(a)Disclosure to the officer reported upon where there is no reporting authority.
(b) Disclosure to the officer reported upon where there is accepting authority.
01st September 15th September 7 Receipt of representation, if any, on APAR 15 days from the date of receipt of communication.
8Forwarding of representations to the competent authority
(a) Where there is no accepting authority for APAR
(b) Where there is accepting authority for APAR 21st September 06th October 9 Disposal of representation by the competent authority Within one month from the date of receipt of representation.
10Communication of the decision of the competent authority on the representation by the APAR Cell.
15th November 11 End of entire APAR process, after which the APAR will be finally taken on record.
30th November.
8. It is seen that the decision in Dev Dutt versus Union of India & Ors. [2008 (8) SCC 725] proved to be a landmark decision insofar as writing and communication of ACRs are concerned. Prior to this judgment, issue of writing of ACRs was governed by separate instructions issued by the DOP&T from time to time which were consolidated vide OM No.22011/5/86-Estt.D dated 10.04.1989. As per these consolidated instructions, it would appear that there was a practice that only adverse remarks were to be communicated to employees concerned giving an opportunity to represent against such remarks. It was consequent upon the decision in Dev Dutts case (supra) that a difference was made. The Honble Supreme Court in that case took a view that the purpose of recording ACRs was not to punish the employee but to make a fair assessment of his work and to give him an opportunity to improve upon. This brought about a major change in the entire orientation of writing of ACRs and introduced the practice of communicating even the below benchmark ACRs to concerned employees and to permit them to make representation not only against adverse remarks but also below benchmark ACRs. This made the Government to issue OM dated 13.04.2010 and as a consequence of the said OM, the below benchmark ACARs were communicated to the applicant. In this regard we also take note of the OM dated 27.04.2011 which provides as to how below benchmark ACRs are to be communicated and OM dated 19.05.2011 which directs the competent authority to consider the representation on the basis of material placed before it once again within 30 days after receipt of such representation. The new system of communicating the entries was made applicable from 01.04.1999 while the competent authority was given the mandate to consider representations in consultation with reporting and/or reviewing officers and to decide the matter objectively based on the material placed before him within a period of 30 days from the date of receipt of such representation. We also take note of the OM dated 27.04.2011 providing timeline vide which different activities were to be completed, relevant portion whereof has already been extracted above in this order.
9. This matter has already been dealt with by this Tribunal in D.S. Saksenas case (supra). For the sake of convenience, we extract the relevant portion as under:-
18. Additionally, we have consulted decisions of the Apex Court in Amar Kant Chaudhary versus State of Bihar [ AIR 1984 (SC) 531]; State of Haryana versus P.C. Wadhwa [ AIR 1987 (SC) 1201]; Union of India versus E.G. Nambudiri [AIR 1991 (SC) 1216]; S. Ramachandra Raju versus State of Orissa [1994(5) SLR 199]; Sri Rajasekhar versus State of Karnataka [1996(5) SLR 643]; State Bank of India versus Kashinath Kher [AIR 1996 (SC) 1328]; State of U.P. versus Ved Pal Singh [AIR 1997 (SC) 608]; Swatantar Singh versus State of Haryana [AIR 1997 (SC) 2105]; Union of India versus N.R. Banerjee [1997 SCC (L & S) 1194]; State of U.P. versus Yamuna Shanker Misra [1997(4) SCC 7]; State of Gujarat versus Suryakant Chunilal Shah [1999(1) SCC 529]; P.K. Shastri versus State of M.P. & Ors.[1999(7) SCC 329], B.P. Singh versus State of Bihar [2001 SCC (L & S) 403] and also the decision of Ahmedabad Bench of this Tribunal in the matter of A.P. Srivastava versus Union of India & Ors [OA No. 673/2004 decided on 09.01.2007] on the basis of which following principles could be culled out:-
(i) Article 51(A)(j) enjoins upon every citizen to constantly endeavour to prove excellence individually and collectively. Given an opportunity an individual employee strives to improve excellence and thereby efficiency of administration would be augmented.
(ii) The object of writing confidential reports is two fold i.e., to given an opportunity to the officer concerned to remove the deficiencies, to improve his performance and to realize his potential and secondly to improve the quality & efficiency of the administration.
(iii) The object of communicating adverse ACR to the officer concerned is to enable him to make amends, to reform, to discipline himself and show improvement towards efficiency, excellence in public administration.
(iv) One of the uses of ACR is to grade him in various categories like outstanding, very good and satisfactory and average etc.
(v) Purpose of adverse entries is to be forewarn an employee to mend his ways and improve his performance.
(vi) The ACRs must be recorded at two levels.
(vii) The ACRs must be recorded objectively and after a careful consideration of all the materials. It should not be a reflection of personal whims or fancies or prejudices, likes of dislikes of a superior.
(viii) The Apex Court in Nambudiri's case after referring to the Constitution Bench decision in Mohinder Singh Gill and G.S. Fijji has held that principles of natural justice apply to administrative orders if such orders inflict civil consequences. Civil consequences means anything which affect a citizen in his civil life. Unjust decision in an administrative enquiry may have more far reaching consequences than a decision in a quasi-judicial enquiry.
(ix) The Apex Court in Amar Kant Chaudhary and Yamuna Shankar Misra's case has emphasized the need for sharing information before forming an adverse opinion. The Apex court in Amar Kant Choudhary had asked the Executive to re-examine the existing practice of writing of ACRs to find a solution to the misuse of these powers by officers, who may not be well disposed.
(x) Representations against adverse/below benchmark entries must be disposed of by the prescribed competent authority and not by other.
(xi) The disposal of the representation must be made in a quasi judicial manner by a reasons order on due application of mind. This view has been further supported in Pala Singh Tanck Vs. Union of India [OA No. 1111/2011 decided on 05.01.2015] and Gunjan Parsad versus Union of India [OA No.1233/2014 decided on 28.04.12015], to mention a few.
10. Here the reporting and the reviewing authorities had recorded their remarks in APARs after the deadline as mandated in the OM dated 27.04.2011. The representations of the applicant were disposed of nine months late. In this regard, para 33 of the decision in Gunjan Parsads case (supra) is being extracted below for the sake of convenience:-
33. Insofar as the remarks recorded in the ACR which shocked the conscience of the applicant is concerned, it would not be appropriate for the court to interfere in recording of ACRs, particularly when the court does not have the benefit of knowing the conduct and the manner in which officer concerned has performed his duties. In the case of Air Vice Marshal S.L. Chhabra vs. Union of India, 1993 Supp (4) SCC 441, the Apex Court in para 13 has held as under:-
....According to us, neither the High Court nor this Court can moderate the appraisal and the grading of the appellant for a particular year. While exercising the power of judicial review, a court shall not venture to assess and appraise the merit or the grading of an officer.....
Therefore, we do not find it expedient or advisable to tread over this forbidden territory, and refrain from making any assessment on the remarks made in the APAR of the applicant, thereby leaving this issue open.
11. In consideration of the above decisions and principle enunciated, we now proceed to examine the subject on the test of DOP&T instructions and the decisions of different courts. Instead of giving case to case, we just reproduce the remarks in a factual matrix:-
CHART SHOWING VIOLATION OF DOPT ORDERS & ADVERSE REMARKS NOT CONVEYED BEFORE HOLDING DPC ACR for the year Page No. Remarks of reporting officer Action of Reviewed Authority Action of Accepting Authority Whether adverse remarks conveyed before DPC Date on which ACR conveyed Decision on representation not conveyed Delay Remarks Grading 2000-01 Self-Appraisal on 25.06.2001 78-88 11 months Adverse Mr. O.P.Mishra recorded on 10.05.2002 Good Ms. Veena Maitra Delay of 9 months. Dated 06.02.2003 Not placed before Accepting Authority, Demitted office NO ACR conveyed vide DG DE letter dated 22.09.2010 Decision on representation dated 07.10.2010 still not conveyed 2001-02 Self-Appraisal on 30.05.2002 89-99 7 months Adverse Mr. O.P.Mishra recorded on 05.11.2002 Good Mr. D.K.Reddy on 14.08.2003. Reviewed after 9 months by a Staff Officer not competent to review since he was not the Reviewing officer.
Incorrectly done by Ms. Veena Maitra on 18.08.2003, who was the Reviewing Officer (delay of 9 months) No ACR conveyed vide DG DE letter dated 22.09.2010 Decision on representation dated 07.10.2010 still not conveyed 2002-03 Self-Appraisal on 05.05.2003 100-110 1.5 months Adverse Mr. O.P.Mishra recorded on 19.06.2003 Good Ms. Malti Krishna Kumar on 01.07.2003.
Ms. Veena Maitra on 24.07.2003 No ACR conveyed vide DG DE letter dated 22.09.2010 Decision on representation dated 07.10.2010 still not conveyed 2003-04 Self-Appraisal on 23.05.2004 111-121 17 months Adverse Mr. A.P.Singh recorded on 19.10.2005 Good (Word by word same) Not placed before Reviewing Authority Not placed before Accepting Authority. Demitted office.
No ACR conveyed vide DG DE letter dated 22.09.2010 Decision on representation dated 07.10.2010 conveyed on 29.10.2010. pg 46 2004-05 Self-Appraisal on 22.05.2005 122-132 5 months Adverse Mr. A.P.Singh recorded on 19.10.2005 (word by word same) Good (Word by word same) Not placed before Reviewing Authority Not placed before Accepting Authority. Demitted office.
No ACR conveyed vide DG DE letter dated 22.09.2010 Decision on representation dated 07.10.2010 conveyed on 29.10.2010. pg 46 2005-06 Self-Appraisal on 03.05.2006 133-142 14 months Adverse see page 139-140 ACR written by an officer who held charge of NIDEM only for 19 days and was not competent to write ACR Mr. A.S.Rajgopal. Written on 07.08.2007 Good Reviewed on the same day i.e. 07.08.2007 by the then DG who had leveled false and baseless charges against the Applicant resulting in issue of charge sheet and withholding of promotion as Applicant had reported about disappearance file of Ahmedabad House case (Matter under investigation by Cabinet Secretary and CVC) Not placed before Accepting Authority No ACR conveyed vide DG DE letter dated 22.09.2010 Decision on representation dated 07.10.2010 Still not conveyed.
2006-07 Self-Appraisal on 30.04.2007 Adverse Mr. R.P.Singh recorded on 16.06.2007 Good Reviewed by an officer against whom the applicant had complaint about disappearance of file, Mr. C.R.Mohapatra Not placed before Accepting Authority No ACR conveyed 06.04.2011 Decision on representation rejected without any speaking order vide DG DE letter 04.08.2011 2007-08 7 months Adverse Mr. R.P.Singh recorded on 19.12.2008 Good Reviewed by Mr. Balsharan Singh (officer against whom the applicant had complaint) As per notings the Reviewing Authority became the Accepting Authority No 18.04.2011 Decision on representation dated 18.04.2011 order not conveyed 2008-09 Pg 269 see pg 283 ACR given to reporting officer on 30.04.2009 Reporting Officer did not given his assessment Mr. N.N.Ojha Reporting officer did not given his assessment NA certificate placed.
Nil No decision on applicants letter dt 19.08.2010 Nil Nil 2009-10 Pg 254
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Favourable Mr. Ashwini Kumar read 257, typed copy at pg 262 & 263 Very good Outstanding read pg 258 typed copy at pg 264.
Very good ACR conveyed vide letter dt. 22.09.2010 Rejected without speaking out order vide DG DE letter dt. 04.07.2011 2010-11 See pg 298 onwards
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Favourable Mr. Ashwini Kumar, see pg 301, 302 Very good Outstanding pg 303.
Outstanding No adverse remarks in ACR We have also considered the issue that where the reporting/reviewing authorities have retired at the time of consideration of the representation or where the accepting authority has retired so as to preclude any form of consultation, is it advisable to treat their opinion as final and to reject the representation on this very ground.
12. In this regard we are quite clear in our view that disposal of representation is a quasi judicial act and is to be done in a quasi judicial manner, therefore, the ideal situation will be that where an employee making representation seeks a personal opportunity to submit his case in person, he be allowed and his representation be disposed of after having taken the points raised therein by employee concerned into account. For the sake of argument, even where there is no prayer for granting an opportunity to the employee to plead his case in person, the competent authority is under obligation to dispose of his representation in consideration of the points raised, even it be in brief and in an objective manner. For the sake of clarity, we reproduce the contents of one of the impugned orders dated 29.02.2012:-
Sub:- Representation against ACR for 2001-02 Reference your common representation No.19702/II/DE dated 7th October, 2010 against ACR for 2001-02 (among others).
2. It is intimated that your subject representation against ACAR for 2001-02 was considered by the Competent Authority i.e. Defence Secretary. A copy of the Order of the Competent Authority dated 28th Feb.2012 on the subject representation is enclosed.
3. The disposal of the representation has been made by the Defence Secretary within the period stipulated in the Order dated 09.02.2012 of the Honble Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 3677/2011.
4. A copy of this communication along with enclosure is being faxed to the Principal Directorate, DE, Southern Command, Pune, for your information. Separate communication is also proposed to be sent today to you through Speed Post at the office of Principal Directorate, DE, Southern Command, Pune. In case you desire the communication to be sent to any other address, the same may be intimated by return fax. We find in general that all the impugned orders have been issued in stereo typed manner but only differ in year of ACRs. To meet this point and for better clarification, we also reproduce another impugned order as under:-
Sub:- Representation against ACR for 2002-03 Reference your common representation No.19702/II/DE dated 7th October, 2010 against ACR for 2001-02 (among others).
2. It is intimated that your subject representation against ACAR for 2002-03 was considered by the Competent Authority i.e. Defence Secretary. A copy of the Order of the Competent Authority dated 28th Feb.2012 on the subject representation is enclosed.
3. The disposal of the representation has been made by the Defence Secretary within the period stipulated in the Order dated 09.02.2012 of the Honble Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 3677/2011.
4. A copy of this communication along with enclosure is being faxed to the Principal Directorate, DE, Southern Command, Pune, for your information. Separate communication is also proposed to be sent today to you through Speed Post at the office of Principal Directorate, DE, Southern Command, Pune. In case you desire the communication to be sent to any other address, the same may be intimated by return fax. In consideration of these facts, we find that the impugned orders being stereo typed and cryptic suffer from defect of application of mind. Hence, this issue stands answered in favour of the applicant.
13. Insofar as the second of the issues is concerned, we have already taken note of the arguments of the applicant regarding mala fide in facts and law operating against him. This issue has already been discussed by this Tribunal in detail in case of R.K. Rai & Anr. Versus Union of India & Ors. [OA No.3132/2014 decided on12.01.2015], relevant portion whereof is being extracted herein below:-
48. The learned counsel for the applicant has also vehemently argued that it is not necessary that all the persons against whom allegation of malice is leveled should be impleaded as in case of malice in law, an inference could be drawn from the sequence of events. The applicant has relied upon the decision in State of Gujarat and Another versus Justice R.A. Mehta (Retired) and Others [2013 (3) SCC 1] wherein the Honble Supreme Court held as under:-
58. Bias can be defined as the total absence of any pre-conceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to expect a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and submerge any private feelings with respect to each aspect of the case The apprehension of bias must be reasonable, i.e., which a reasonable person would be likely to entertain. Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim - nemo debet esse judex in causa propria sua. It applies only when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias.
49. The learned counsel for the applicant also argued that reasonable chain of events is sufficient to prove that bias actually exists or there is likelihood of its existence in order to attract the doctrine of bias. The implication of this would be that in other words what has been stated by the applicant in OA is sufficient to complete the chain of events leading to bias. On the other hand, the respondents have also relied decisions in cases of Mutha Associates & Ors. Versus State of Maharashtra & Others (supra) Ratnagiri Gas & Power P. Ltd. Versus RDS Projects Ltd. & Ors. (supra), Chairman & MD. BPL Ltd. Versus S.P. Gururaja & Others (Supra), State of A.P. & Others versus Goverdhanlal Pitti (supra), to contend that the allegations of malafide must be proved and that mere allegations cannot take the place of proof.
50. In light of these conflicting claims, it becomes necessary for us to examine the legal position pertaining to the law of malafide and how it operates. In the case of Ravi Yashwant Bhoir versus District Collector, Raigad & Others [2012(4) SCC 407], the Honble Supreme Court defined malafide as under:
47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745). There could be no dispute over what has been stated in above decision of the Honble Supreme Court. However, it also remains a fact that malafide is easier to allege than to prove and the burden of proof lies on the one who alleges it [E.P. Royappa versus State of T.N. & Others [1974(4) SCC 3].
51. In State of Punjab and Another versus Gurdial Singh [1980 (2) (SCC) 471], the Honble Supreme Court held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
52. The Honble Supreme Court in a more recent judgment in Rajeev Kumar Aggarwal versus State of UP Manu SC 0869/14 held that unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions relating to transfer, courts/tribunals cannot interfere in such matters as if they were appellate authority substituting their own decisions for that of the Management.
53. It is agreed that this case involves deputation which stands on a different footing from transfer but there are similarities. Similar views have been expressed by the Honble Supreme Court in Institute of Law versus Neeraj Sharma Manu SC0841/2014, National Institute of Technology versus U. Dinakar Manu SC 0538/14 and Union of India & Others versus S.P. Sharma, [2014 (6) SCC 1].
54. In Mutha Associates & Ors. Versus State of Maharashtra & Others (supra), the Honble Supreme Court held as under:-
50. It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice This view has been supported by the decision in Ratnagiri Gas & Power P. Ltd. Versus RDS Projects Ltd. & Ors. (supra) relying upon its earlier decision as under:-
26.1. In State of Bihar v. P.P. Sharma 1992 Supp. (1) SCC 222, this Court summed up the law on the subject in the following words:
50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.
55. In Chairman & MD. BPL Ltd. Versus S.P. Gururaja & Others (Supra), similar views have been expressed in paras 34 & 35, which are reproduced as under:-
34. Undue haste also is a matter which by itself would not have been a ground for exercise of power of judicial review unless it is held to be mala fide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The Court, it is trite, is not concerned with the merit of the decision but the decision making process. In absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been a fair play in action.
35. The question as to whether any undue haste has been shown in taking an administrative decision is essentially a question of fact In State of A.P. & Others versus Goverdhanlal Pitti (supra), similar views find echo in paras 14 which is being extracted herein below:-
14. The legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bona fide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings.
14. In the instant case we take certain facts into consideration where both mala fide in law as well as in fact is alleged. Here, we are compelled to take into account the fact that the applicant was given tenure posting in Shillong for a period of five years against the prescribed period of two years. No satisfactory explanation seems forthcoming from the respondents over this matter. It is an admitted fact that the tenure provided for the North-East is considered to be a difficult or hard posting. Therefore, the officers posted to North-East are also provided certain facilities like retention of government accommodation at Delhi etc. In the instant case, the very fact that the tenure rules have been disregarded by an additional period of three years speaks volume in itself of the malice operating against the applicant. We also find that the applicant has alleged that he was not given even the supporting staff and charter of duties and the respondents have failed to rebut or contradict this argument by submitting any documentary evidence. Per contra, the applicant has cited instances and given specific details of the complaints he had made. These have not been adequately dealt with but have been rejected in one or two lines in the counter affidavit. We have also taken note of the allegation of backdating in their correspondence. The allegation of the applicant is that respondent no.2 has resorted to fudging of records. In this regard, he has cited example of respondent no.3 writing a letter dated 17.04.2013 to all Principal Directors about non-receipt of ACRs of the applicant for the year 2001-02 along with seeking ACRs of other officers. On the other hand, ACRs were made available to the applicant in the year 2010 whereas the ACRs had already been written in 2002. We have gone through the official record and found that the ACR for the period 2000-01 had already been written on 10.05.2002 and the respondent no.3 recorded her remarks on 06.02.2003. We have also looked into the original file and found that the remarks had been written on these two dates i.e. 10.05.2002 and 06.02.2003. It is, therefore, evident that letter dated 17.04.2013 had been written in ignorance or deliberately overlooking the facts that the remarks had already been recorded, we believe, with the purpose of setting the records straight. However, since the respondent no.3 had already recorded the remarks herself on the above dates, it was a ploy to cover the late consideration of ACRs. We have also taken note of the allegation of the applicant that one G. Venkatramani was Director of NIDEM only for a period of 19 days i.e. from 01.07.2005 to 19.08.2005. However, he is purported to have written letter dated 18.08.2005 accusing the applicant showing insubordination, indiscipline and having the tendency of bypassing his superior officers. He also accused him for removing of DFA. He further recommended that the applicant be transferred out of the institute immediately. The applicant has submitted that the said letter is purported to have been written on 18.8.2005 whereas the endorsement and all other things indicate that it had already been dealt with in the office note on 17.08.2005. It reveals from perusal of the document that the file was marked to Addl. DG on 17.08.2005. It is further revealed that the endorsement over the document was marked to Dy. D.G., who in turn endorsed over the same please put up. It is not understood that how a letter written on 18.8.2005 could be issued and have reached the office of Director General in a matter of day and has also been marked down to the authorities. Perusal of the file reveals that signatures of the authority over the letter dated 18.08.2005 and marking down the same Addl. DG are in two inks. It would appear to our mind that the letter has been backdated and G.Venkataramani, who was Director only for 19 days, was seriously ill at that time and expired later. It appears that he was made to sign on a letter which had already been written. We are also curious to understand as to how within a period of less than a month the late G. Venkatramai was in a position to submit report against the applicant, that too when he was physically not well. This only indicates that there is some hanky-panky at work.
15. We have already seen how institutional malice is designed. We have a feeling that the allegations leveled by the applicant from time to time regarding major irregularities in the department involving 100 and 1000 crores do not appear to be recognized. Instead, the applicant appears to have been punished for his acts of exposing the previous irregularities and that is why he was left to languish at one place for a period of more than 5 years whereas the tenure prescribed was for two years. It is a matter of common knowledge that such persons, who upset the apple cart, are never dear to the department. The malice at law is not doing what is prescribed under law as per the prescription but in a different way with some ulterior motives.
16. Here, we find that it is clearly an institutional malice at work. The entire department down the line appears to have been against the applicant. Accordingly, we decide this issue in favour of the applicant.
17. In conclusion we can only hold that the applicant no doubt has been a crusader and whistle blower even it be as proclaimed. He has also suffered on this account as he had to retire without getting promotions to SAG and HAG. Yet such persons are indispensable to the system in order to retain the equilibrium or provide the much needed tensile strength to the system.
18. We have, in our examination of the matter, come across sufficient grounds to hold that the system wreaks punishment in great detail to those who stand for truth in the contemporary society. The utter futility and pointlessness of such a gesture would be evident if we plot the life of individuals in history as opposed to the timeless image of the hero. Raja Harishchandras insane commitment to fulfill a promise made in a dream cost him his kingdom and his son. He sold himself into slavery of the worst kind, and even felt duty-bound to ask his wife to part with a portion of the Saree covering her modesty. He passed the test and the gates of heaven opened for him. The gods themselves anointed him. Those were the days when gods and men were on equable terms of association reward and punishment, redemption and retribution followed close at hand. Here in the instant case, we find the altar ego of Rajaharishchandra in the applicant running from court to court to seek a vindication of his stand.
19. We have found that the disposal of the representations by respondent no.1 is marked by procedural irregularities and in utter disregard to the pronouncements of Honble Courts and stating wrong facts. It is wrong on part of the respondents to have held that there were no guidelines for disposal of the representations as we have already found while considering the matter that instructions have been issued by DOP&T. It is most regretful that a highly placed person like the respondent no.1 should have pleaded ignorance of these instructions. It is not acceptable at the level of respondents. Moreover, even assuming that no instructions were there, even the rule is subject to the doctrine of reasonableness which governs the entire genesis of Article 14 of the Constitution of India. This appears to be on account of the fact that an institutional malice has been operating against the applicant.
20. In totality of facts and circumstances of the case, we quash the impugned orders dated 29.02.2012 (five in numbers) as they are hit by malice of both facts and law, and have been passed against and in ignorance of the express instructions of the Government attempted to be covered by interpolation on later dates. Therefore, we direct the respondents to convene a review DPC to consider the case of the applicant for promotion to SAG and HAG at par with his immediate juniors with all consequential benefits flowing therefrom. However, there shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/