Central Administrative Tribunal - Delhi
Shri Gunjan Prasad vs Govt. Of India on 28 April, 2015
Central Administrative Tribunal
Principal Bench
OA No.1233/2014
Order Reserved on:13.11.2014
Order Pronounced on:28.04.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Shri Gunjan Prasad,
S/o Shri Tarkeshwar Prasad,
Working as Commissioner Income Tax
Office of the Commissioner of Income Tax,
(D.R.), E-Bench,
Income Tax Appellate Tribunal,
Lok Nayak Bhawan, Khan Market,
New Delhi -Applicant
(By Advocates: Shri N.S. Dalal, Sh. P.C. Yadav and Sh. Devesh Pratap Singh)
VERSUS
Govt. of India,
Through its Secretary,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi -Respondent
(By Advocate: Shri RN Singh with Sh. Amit Sinha)
O R D E R
Dr. B.K. Sinha, Member (A):-
The applicant in the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 is aggrieved by the adverse remarks recorded by the reporting officer on 19.02.2013 in his APAR for the period 22.07.2011 to 17.02.2012, and giving him overall grading of 5.87. He is further aggrieved by the assessment made by the reviewing officer on 20.02.2013, whereby he has maintained the grading given by the reporting officer in the APAR for the aforesaid period.
2. The applicant has sought the following main relief(s):-
(i) Set aside and quash the impugned order dated 19.02.2013 passed by the Reporting Authority whereby grading of the applicant for the year 2011-12 has been graded as 5.87 by downgrading the same and also the order dated 20.02.2013 passed by the Reviewing Authority, vide which the grounds made by the Reporting Authority have been confirmed. A No Report Certificate may be issued as provided for in law;
(ii) Award costs of the present original application in favour of the applicant and against the respondents.
3. Admittedly, the applicant is an officer of 1987 batch of the Indian Revenue Service who claims to have been graded as Outstanding since the year 1994-95 till 2010-11 and has earned many plaudits from his own and other departments. On 19.03.2013, the applicant received adverse remarks and overall grading of 5.87 in his APAR for FY 2011-12 (22.07.2011 to 17.02.2012) giving him opportunity to make representation. The applicant submitted his representation on 03.04.2013 against the adverse remarks to the Member (P&V) CBDT followed by another representation dated 11.09.2013 wherein he submitted that for the first 17 years, he had continuously been graded Outstanding; he had never been cautioned by any of authorities; the remarks regarding his proceeding on leave following the search operation in respect of one Gurmeet Chadha (Ponty Chadha) and made serious allegations against the reporting officer that she wanted him to accompany her to UK on an unauthorized trip to interrogate one Lalit Modi, former Commission of the IPL; the Reviewing Officer was a batch-mate of the reporting officer and was deeply influenced by her; the remarks were made by the reporting officer after a lapse of nine months on 19.02.2013 which as per the DOP&T instructions should have been completed by 30.06.2012 at the most. The applicant further submitted in his representation that the allegation regarding non-launching of immediate investigation following the search operation in Raymond and Singhania Group has no legs to stand because he had been asked to proceed to Georgia and Washington as a part of his official duty and also that as DIT, he was not required to prepare the appraisal report. This duty was to be done by ADIT/DDIT under the guidance of the Additional/Joint DIT which he had provided. The applicant has further submitted that in the raid relating to Ponty Chadha (Gurmeet Chadha) search operation had led to surrender of Rs.175.00 crores wherein taxes were paid immediately and with further evidence of round tripping of Rs.1000.00 crores. This was an outstanding work but instead of appreciating the same, the reporting officer had made it a plank for punishing the applicant who was at the verge of promotion to the post of Principal Commissioner of Income Tax. These facts have been ignored by the reviewing authority.
4. The representation of the applicant was considered by one Dr. Sudha Sharma, Chairperson, CBDT, who has held that both the reporting and the reviewing authorities have retired, hence, they were not available to provide their comments on the representation of the applicant. The competent authority has further held as under:-
8. During the relevant period the applicant officer was posted as DIT (Intelligence and Criminal Investigation) under Director General of Income Tax (Intelligence and Criminal Investigation), which is one of the most sensitive postings in the Department and requires utmost confidentiality, efficiency and organizing capabilities. Considering the fact that owing to the very sensitive nature of work being done in Intelligence & Criminal Investigation Wing of the Department, the same is very closely monitored by the DGIT (I&CI), it is only plausible that the DGIT(IC&I) also keeps a close watch on the attitudinal profile of his officers. Since the grading in the APAR for the period (22.7.2011-17.02.2012) is based on such close monitoring of the performance as well as the attitudinal profile of the applicant officer which has also been endorsed without record to prove the contrary, I see no reason to interfere with the grading assigned in the part period APAR by both the Reporting Officer and the Reviewing Officer. This order of the Chairman, CBDT dated 20.12.2013 was accordingly communicated to the applicant vide order dated 09.01.2014.
5. The applicant has adopted the following grounds in support of his OA:-
(i) His APAR for the previous 17 years had all been Outstanding while the applicant had been awarded only 5.87 which is below benchmark. There was no reason as to how the APAR for the period under consideration could have dipped as much as they have done now;
(ii) The guiding instructions were not followed while recording the APAR under consideration of the applicant. The applicant received the blank APAR form on 22.6.2012 which was filled up and submitted on 27.6.2012 whereupon the Reporting Officer recorded his remarks on 19.2.2013. Moreover the competent authority considered his representation dated 3.4.2013 beyond a period of 30 days. The applicant has relied upon the decision of the Honble Supreme Court in Swaran Singh Chand vs Punjab State Electricity Board & Ors AIR 2010 SC 151 and HV Nirmala vs Karnataka State Financial Corporation 2008(7) SCC 639 in support of this point.
(iii) The applicant submitted a representation against the below benchmark APAR which had been recorded on 19.02.2013 and received by him on 3.4.2013 (page 5 of the OA). This representation was cleared by the competent authority on 20.12.2013 and was received by him on 26.02.2014. However, the Chairman, CBDT, was not the competent authority where the Member, CBDT, had been the reviewing authority. The Member, CBDT, was merely the first amongst the equals and relying upon the decision of the Honble Supreme Court in Sukhdev Singh versus Union of India & Ors. AIR 2013 SC 2741, the applicant submits that he could not have acted as the competent authority as it would be an appeal from Caesar to Caesar. The applicant further submits that the reviewing officer has not filled up each and every row as provided in the DoPT OM dated 23.07.2009.
6. It is also the case of the applicant that none of the reasons for giving below benchmark entry in the APAR as stated by the respondents in their counter affidavit is sustainable in light of clear admission on this part. Replying to the charge that the applicant had not launched immediate investigation following the search operation in Raymond and Singhania Group, he submits that he had to travel to Washington and Georgia on official tour from 12.11.2011 to 19.11.2011. The applicant further submits that it was not his primary job to prepare the appraisal report, as the same is to be done by ADIT/DDIT under the guidance of the Additional/Joint DIT. No advisory has been given to him to complete the report himself. In the case of raid on the premises of one Ponty Chadha, the applicant submits that it resulted in surrender of income of Rs.175 crores. The applicant further submits as one of the grounds that APAR under dispute is recorded in respect of the period from 22.7.2011 to 17.2.2012. One of the reasons for adverse entry is that the applicant went on leave from 21.2.2012 to 13.4.2012 whereas the leave has been duly sanctioned by the reviewing officer. The applicant questions that if he was on leave from 21.2.2012 to 13.4.2012, then how this period could have been incorporated in this APAR.
7. The respondents have filed their counter affidavit resisting the averments made in the OA.
8. The respondents have raised a preliminary objection that the Application is barred by Limitation as the applicant has challenged the orders of the reporting and reviewing officers dated 19.02.2013 and 20.02.2013 vide the OA filed on 09.04.2014.
9. The respondents submit that the Chairman CBDT is the competent authority to decide the representation against final grading, where Member CBDT is the reviewing authority and this has been sanctified by continuing practice.
10. On the issue of non-launching of immediate investigation in conducting search operation in Raymond & Singhania Group, the respondents submit that the date of search of the said Group was on 03.11.2011 and was completed on 21.02.2011. The applicant travelled on official tour to Washington and George from 12.11.2011 to 19.11.2011. After he had been accorded earned leave for 53 days from 21.02.2012 to 13.4.2012. In the meantime, the pending cases, including M/s Raymond Group & M/s Chadha Group were assigned to one H.B. Mahanta, DIT (I&CI), New Delhi, vide order dated 20.03.2012. The last date for submission for appraisal report was 27.02.2012, being a period of 60 days from the date of completion of search. The first extension for submission of the appraisal report was sought by the DIT (I&CI), New Delhi, vide letter dated 24.02.2012. The same was granted by the DGIT (I&CI), New Delhi, up to 31.03.2012 vide office letter dated 29.02.2012. Further extension was granted up to 31.05.2012 vide office letter dated 29.03.2012. The appraisal report was sent to the CIT (Central)-IV, Mumbai, vide letter dated 12.06.2012. The applicants assertion that the primary job of preparation of the appraisal report is done by the ADIT/DDIT under the direct guidance of the Addl./Joint DIT is true. Further, as and when any extension of time for preparation of appraisal report was required, the file went to DGIT. The extension of time was granted but no advisory was given to him that he should complete the appraisal report himself and not by the ADIT/DIT, is also based on the facts. It is true that applicant proceeded to USA for meeting in Georgia and Washington from 12.11.2011 to 19.11.2011. The applicant, then DIT (I&CI)(Admn.) vide letter dated 10.02.2012 directed the Addl./DIT-I that the weekly report on the progress of post search investigation should be put up to the senior authorities periodically. In continuation of the said letter, a letter dated 17.02.2012 has been written to the DGIT (I&CI), New Delhi giving the point wise progress report on the various issues that has emerged in the post investigation. Further, the following concluding line has also been written in the letter: If there are any instructions that you would like to issue on the subject matter, the same will be incorporated in the appraisal report.
11. The said H.P. Mahanta, the then DIT (I&CI), Delhi, had admitted in his appraisal report that the tax of Rs.54.50 crores was paid on undisclosed income of Rs. 175 crores by the said Ponty Chadha. This undisclosed income mostly accrued from liquor business. The date of reference, i.e., 2.5.2012 has nothing to do with any of the purpose mentioned by DGIT.
12. The respondents further admit that the APAR was submitted by the applicant on 27.06.2012. The reporting officer had made remarks on 19.02.2013. The time schedule for preparation and completion of APAR is as under:-
Activity Below CCIT/DGIT Blank APAR form to be given to the officer reported upon by the Administration Division/Personnel Department, specifying the reporting officer and reviewing officer 1st April Self appraisal for current year 30th April Appraisal by reporting officer 31st May Appraisal by reviewing authority and APAR to be sent to the Custodian 30th June Based on the dates mentioned above, the reporting as well as reviewing officers had been delayed. The respondents in their counter affidavit has further stated that the procedure for review of APAR does not entail any opportunity being given to officer reported upon to explain his claims in the statistical supplement and that the applicant is not entitled to any relief as his statements are wrong and misleading.
13. The applicant has filed rejoinder application stating that the delay in entering remarks in APAR by the reporting and reviewing officers has been admitted by the respondents in their counter affidavit. In such circumstance, the APAR for the year has to be treated as non-est and a No Report Certificate has to be issued. In this regard, reference is made to DoPT OM No.21011/02/2009-Estt.(A) dated 16.02.2009 wherein it has been mentioned that:-
2. Xxxx in case the ACR is not initiated by the Reporting Officer for any reason beyond 30th June of the year in which the financial year ended, he shall forfeit his right to entry and remarks in the ACR of the officer to be reported upon and he shall submit all ACRs held by him for reporting to the Reviewing Officer on the next working day. Similarly, the Reviewing Officer shall also forfeit his right to enter any remarks in the ACR beyond 31st August of the year in which the financial year ended xxx.
3. In case the remarks of the Reporting officer or Reviewing Officer as the case may be have not entered in the ACR due to the concerned officer forfeiting his right to make an entry as per the provision in para 2 above, a certificate to this effect shall be added in his ACR for the relevant period. In case both the Reporting officer and Reviewing officer had forfeited their rights to enter any remarks, the CR format with the self appraisal given by the officer to be reported upon will be placed in the ACR dossier. It is clear from the above circular that when the reporting and reviewing officer has forfeited jurisdiction to make any entries in the APAR of the applicant they could not have made any entries in his APAR and thus a No Report Certificate has to be issued.
14. The applicant further submits in his rejoinder that admittedly, his representation had been disposed of by the competent authority after delay of more than 8 months. Moreover, the representation had not been considered in consultation with the reporting and the reviewing officers as both of them were retired and within a period of 30 days as provided in the OM dated 14.5.2009. The applicant has further submitted that the decision of the competent authority had not been communicated to him within 15 days as provided in para 2(vii) 7 of the same OM.
15. The applicant further submitted that while disposing of the representation, the competent authority did not deal with the representation in accordance with the material placed before her as provided in DoPT OM dated 13.4.2010. It is further submitted that the competent authority should take into account the contentions of the officer who has represented and also the views of the reporting and reviewing officers, if they are in service. Since both of them had superannuated, at least the contentions made by the applicant in his representation should have been taken into consideration and if required, an inquiry may have been conducted before arriving at a decision.
16. The respective counsels of the parties have made oral submissions largely following their respective pleadings.
17. We have carefully examined the pleadings submitted by their respective parties as also the documents submitted along therewith. We have further listened patiently to the arguments of the respective counsels.
18. To our mind, the issues that formally need to be decided in this OA are the following:-
(1) Whether there has been delay in recording of the APAR and if so, whether the same would vitiate the APAR itself?
(2) What would be effect where both the reviewing and reporting officers have retired?
(3) Whether the competent authority had jurisdiction to dispose of the representation and if so, whether disposal by the competent authority was marked by delay and against the regulations?
(4) Whether the remarks recorded in the APAR under consideration were without basis?
(5) What reliefs, if any, could be granted to the applicant?
19. In so far as the first issue is concerned, it is an admitted position that remarks in question were recorded in respect of period from 01.04.2011 to 31.03.2012. However, it excludes the period from 1.4.2011 to 16.5.2011 on account of deputation with the Election Commission of India, from 16.5.2011 to 19.7.2011 on account of being less than three months, and from 20.02.2012 to 13.04.2012 as being on earned leave. The reporting officer was one M.Sailo, DGIT (I&CI) under whom the applicant served from 22.7.2011 to 18.8.2011. The reviewing officer was one SS Rana Member (INV) under whom the applicant served from 20.09.2011 to 17.02.2012. The remarks of the reporting officer are as follows:-
He was given the topmost responsibility in the charge which required secrecy, careful coordination, skilful, with sincre honesty and devotion to duty, the Raymond group Singhani Group he did not make effort to carry out immediate post search investigation inspite of repeated reminders instead insisted completion of Appraisal reports by his juniors. In Ponty Chadha group case, there was failure in execution and planning for which the directorate severely criticised by the public and media without giving up the search operations and proceedings, he immediately went on leave thus shirking his responsibilities. The reviewing officer had agreed with the reporting officer and had accorded 5.87 points, the same as had been recorded by the reporting officer. We have further taken note of the counter affidavit filed by the respondents wherein they have admitted the late recording of the APAR in Para 5(x) thereof.
20. In this very breath, we have to consider the position that what would be the effect of late recording of ACRs.
21. In the case of Devendra Swaroop Saxena Vs. Union of India & Ors. in OA No 4258/2013 decided on 19.12.2014, the objects of recording confidential ACR have been dealt with in Para 18 of the order, which is being reproduced as hereunder:-
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 vesus 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 Nambudiris case after 'eferring 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 Misras 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.
22. In the afore case, the applicant had submitted a representation against downgraded remarks in his ACRs made by the reviewing authority and had challenged the impugned orders as being total lack of application of mind and that the representation had been decided by the incompetent authority and also that there was unreasoned downgrading of his ACRs which had been agitated in the representation but had not been discussed in the order disposing of the representation.
23. It is further an admitted position that the applicant had received adverse ACRs in the year 2011-12 in March, 2013 and had submitted a representation in respect thereof on 03.04.2013. On 11.09.2013, the applicant had submitted a second representation on finding that his previous representation dated 03.04.2013 had not evoked any response. On 09.01.2014, the Chairman, CBDT, passed an order on the representation of the applicant in response to his representation dated 03.04.2013 but not in response to representation dated 11.9.2013. Thus, admittedly, the disposal of the representation has been delayed by a period of almost 9 months as provided in Time Schedule for preparation/completion of APAR (Reporting year-Financial year), which is reproduced hereunder:-
Time schedule for preparation/completion of APAR (Reporting year Financial Year) SNo.
Activity Date by which to be completed.
1.
Distribution of blank APAR 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 accepting authority.
(b) Disclosure to the officer reported upon where there is accepting authority.
01st September
7. Receipt of representation, if any, on APAR 15 days from the date of receipt of communication
8. Forwarding of representation to the competent authority.
(a) Where there is no accepting 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.
10. Communication 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
24. We further take note of the OM dated 16.02.2009 of the DoPT dealing with the subject of timely preparation and proper maintenance of ACRs. This OM categorically states that where the ACRs are not initiated by the reporting officer for any reason beyond 30th June of the year in which the financial year ended, he shall forfeit his right to enter any remarks in the ACR to be reported upon. Similarly, the reviewing officer shall also forfeit his right to enter any remarks beyond 31st August. The relevant portion of the said OM is extracted as below:-
2. As cases continue to occur where confirmation, regular promotion, appointment to sensitive posts etc., could not be considered in time because of non-availability of ACRs for the relevant period, the matter of timely completion of ACRs was further reviewed in this Department and it has been found necessary to prescribe a time limit after which the Reporting/Reviewing Officer shall forfeit his right to record the ACR. It has been decided that while the time-limits prescribed in the aforesaid OM dated 23.9.1985 should be adhered to as far as possible, in case the ACR is not initiated by the Reporting Officer for any reason beyond 30th June of the year in which the financial year ended, he shall forfeit his right to entry and remarks in the ACR of the officer to be reported upon and he shall submit all ACRs held by him for reporting to the Reviewing Officer on the next working day. Similarly, the Reviewing Officer shall also forfeit his right to enter any remarks in the ACR beyond 31st August of the year in which the financial year ended. The Section entrusted with maintaining the ACRs shall, while forwarding the ACRs for self-appraisal with copy of the Reporting/Reviewing Officers, also annex the schedule of dates as enclosed herewith. It shall also bring to the notice of the Secretary concerned in the case of Ministry/Department and the Head of the Organization in the case of attached and subordinate offices, the names of those Group A and B Reporting Officers and Group A Reviewing Officers in the month of October after receiving the completed CRs who have failed to initiate/review the ACRs even by 30th June or 31st August as the case may be. The Secretary in the Department/Head of the organization in the case of attached/subordinate officers may direct to call for the explanation of the concerned officers for not having performed the public duty of writing the ACRs within the due date and in the absence of proper justification direct that a written warning for delay in completing the ACR be placed in the ACR folder of the defaulting officer concerned.
3. In case the remarks of the Reporting officer or Reviewing Officer as the case may be have not entered in the ACR due to the concerned officer forfeiting his right to make an entry as per the provision in para 2 above, a certificate to this effect shall be added in his ACR for the relevant period. In case both the Reporting officer and Reviewing officer had forfeited their rights to enter any remarks, the CR format with the self appraisal given by the officer to be reported upon will be placed in the ACR dossier.
25. In the instant case, the admitted position is that the APAR forms had been made available to the applicant on 22.6.2013 against the mandated period 31.3.2012. He submitted his statistical supplement on 27.06.2012 within a period of 5 days to which the said DGIT was duty bound to make entry by 30.06.2012 and to submit the same to the reviewing officer on 01.07.2012 as per DOPT OM dated 16.02.2009. Instead the reporting officer has recorded her remarks on 19.03.2013. The reviewing officer was required to record his remarks by the end of August, 2013 whereas he has, in the instant case, the reviewing officer had recorded his remarks on 22.02.2013. Thus, it appears strange that the reporting officer has submitted her remarks one month before the recording of the remarks by the reviewing officer, which is not possible. This only implies that the APAR of the applicant has been recorded in negligent and careless manner. In any case, the point stands well proved that both the reporting and the reviewing officers have recorded their remarks in the APAR well past the deadlines of 30th June and 31st August as mandated in the OM dated 16.02.2009.
26. In decided case in Association of Management of Private Colleges Vs. All India Council of Technical Education & Ors., (2013) 8 SCC 271, it has been held that where the statues prescribe a particular procedure to be done in a particular manner that act must be done in that manner otherwise it shall not be done at all. It may be argued that the OM dated 16.02.2009 is not a statute but merely executive instructions. However, in the instant case, we are inclined to hold that in absence of any other statutes in this regard, it takes place of subordinate legislation and have the force of statues for the purpose. It is also to be noted that these instructions deal with the civil rights of the employees and any instructions given in this regard has to be considered as one having the force of the statue. Therefore, we find force in the argument of the applicant that subsequent remarks recorded by the reporting and the reviewing officers are not tenable and legal in terms of OM dated 16.02.2009, which has force of law.
27. Now we take up the issue that what would be the effect where both the reviewing and reporting officers had already retired. In this regard, it is an admitted position that when the representation had been submitted, the reporting and the reviewing officers had already retired and were not available to comment upon the representation of the applicant. Here, the applicant has relied upon the case of V.K. Singhla, Commissioner of Income Tax Vs. Secretary, Ministry of Finance and Ors. (OA No. 3524/2009 decided on 17.12.2009) which held as under:-
4. We have heard the contention raised by Mr. Ramji Srinivasan, Senior Advocate who appears with Mr. Anshu Mahajan. We find substantial merit in the contention raised by the learned counsel that when ACR for the year 2008-09 was available even by 22.10.2009, as the reviewing officer had given his remarks and conveyed the report to the reporting officer, there was no occasion to take into consideration the report of the applicant for the year 2003-04. If that procedure might have been adopted by the DPC, the applicant would have made the benchmark his three reports being Very Good and two Outstanding. Be that as it may, insofar as the ACR for the year 2003-04, which was below benchmark and was taken into consideration, is concerned, if the same had not been communicated to the applicant. Normally, this Tribunal following the decision of Honble Supreme Court in CA No. 7631/2002 decided on 23.05.2008 in the matter of Dev Dutt v. Union of India and Full Bench of this Tribunal in OA No.24/2007 decided on 07.05.2008 in the matter of Ashok Kumar Aneja v. Union of India & Ors. would have directed the respondents to convey to the applicant his ACR for the year 2003-04, which was below benchmark, have representation from him, and if in consideration thereof the ACR of the applicant is upgraded commensurate to the benchmark, consider his case for promotion to the post of Chief Commissioner of Income Tax from the date when others were so promoted. However, in the present case, we are informed that the reporting officer of the ACR for the year 2003-04 has since already retired. That being so, following the judgment of Honble Supreme Court in Abhijit Ghosh Dastidar V/s. Union of India & Ors., (SLP No. 26556/2004 decided on 22.10.2008) and the decision of this Tribunal in the matter of O. P. Meena Vs. Union of India & Ors. (OA No.1178/2009 decided on 14.10.2009), we dispose of this Original Application directing the respondents to ignore the ACR for the year 2003-04 and take into consideration the ACR for the year 2002-03, which is stated to be commensurate with the benchmark. Respondents would consider the case of the applicant for promotion to the post of Chief Commissioner Income Tax in the light of above observations, and in consideration of the ACRs, as mentioned above, as expeditiously as possible and preferably within a period of four weeks from the date of receipt of a certified copy of this order.
8. The applicant has submitted that the judgment in the case of V.K. Singhla (supra) has since attained finality. Accordingly, this issue is directed in favour of the applicant.
29. Insofar as the issue no.3 is concerned, it is an admitted position that the representation of the applicant was disposed of nine months late vide letter dated 09.01.2014. In this order, the competent authority has recorded the points contained in the representation and had also recorded his reasons for not agreeing with the same. For the sake of clarity, the reasons recorded by the competent authority are extracted as below:-
WHEREAS, comments of the Reporting Officer and the Reviewing Officer could not be obtained as both the officers have retired from service.
WHEREAS, the Competent Authority has carefully considered the APAR gradings as well as the representation of the applicant Officer. The Reporting Officer has given factual reasons for giving a below benchmark grading which have been denied by the applicant Officer. Further, the applicant Officer has made certain allegations of bias on the part of the Reporting Officer stating that the below Reporting Officer on an unauthorised trip to the UK and that he refused to conduct a search in a particular case on the basis of oral Instructions given by the Reporting Officer. Unfortunately, the Reporting Officer has already retired from service and her comments on these allegations cannot be obtained now. Similarly, the Reviewing Officer has also retired and one cannot have the benefit of his comments on the issues raised by the applicant Officer. The allegations made by the applicant Officer are not borne out of record and remain unsubstantiated.
WHEREAS, during the relevant period the applicant Officer was posted as DIT (Intelligence and Criminal Investigation) under Director General of Income Tax (Intelligence and Criminal Investigation) which is one of the most sensitive postings in the Department and requires utmost confidentiality, efficiency and organising capabilities. Considering the fact that owing to the very sensitive nature of work being done in Intelligence & Criminal Investigation Wing of the Department, the same is very closely monitored by the DGIT (I&CI), it is only plausible that the DGIT (I&CI) also keeps a close watch on the attitudinal profile of his Officers. Since the grading in the APAR for the period (22.7.2011-17.02.2012) is based on such close monitoring of the performance as well as the attitudinal profile of the applicant Officer, which has also been endorsed without raising any doubts by the Reviewing Officer and there is no specific material on record to prove the contrary.
THEREFORE, the Competent Authority sees no reason to interfere with the grading assigned in the part period APAR by both the Reporting Officer and the Reviewing Officer.
The representation dated 03.04.2013 of Shri Gunjan Prasad (87046) is disposed of accordingly.
30. It is apparent from the above that though all the points raised by the applicant in his representation have been dealt with in a chronological manner, the application of mind is not missing altogether and the competent authority has recorded the reasons for not accepting the representation of the applicant. In this regard, it is to be stated that a reasoned order may not always imply that each and every point raised by the applicant has to be dealt with. After all there is a distinction between the administrative quasi judicial order and the legal order. In legal order, the law points are considered and on the basis of the consideration, decision is recorded in detail citing legal authorities. This is not to be expected from the administrative authorities who do not have a trained legal mind. It is a different matter that whether we agree with the conclusion arrived at or not by the competent authority, there is no gainsaying that it is unreasoned.
31. Insofar as the Chairman, CBDT to be considered as the competent authority is concerned, the applicant has challenged the same on the ground that the Chairman, CBDT, is only the first amongst the equals and, therefore, has no authority to decide the representations filed against the orders of their colleagues. This argument is not tenable as in the case of B.R. Kaushik Vs. Ministry of Finance & Ors. in OA No. 963/2010 decided on 5.9.2013 the Tribunal has held as under:-
6. This is the second round of litigation. Applicants earlier Original Application was disposed of with a direction to the respondent No.1 to consider and decide his representation by a speaking order. The President of the ITAT has recorded the disputed remarks in the ACR of the applicant for the period 2005-2006 on the capacity of a reporting officer. Since the reviewing authority had demitted his office, the aforesaid ACR of the applicant could not be reviewed, as certified by Shri T.K.Vishwanathan, the then Law Secretary. The President, ITAT after examining the work of the applicant as reporting officer has made general assessment of applicants performance that he has good knowledge of legal and procedural provisions, however, he wrote very brief and short orders and accordingly he had been advised to write detailed reasoned orders. He had also been advised to maintain good relations with colleagues and members of Bar. Finally, the President ITAT has rated him as An average Member. However, with regard to integrity the President, ITAT has recorded that nothing adverse had come to his knowledge.
Moreover, the fundamental principle to be followed while recording ACR is that it can only be recorded by a person who is acquainted with the work of officer being reported upon. Therefore, in the hierarchy, it is only the Chairman, CBDT, who can act as the competent authority in respect of representation. In the case of M.K. Mirani, Chief Commissioner of Income Tax Vs. Union of India & Ors. (OA No. 105/2013) decided on 01.07.2013 wherein the applicant has challenged the competence of the Member CBDT in recording his ACRs, this Tribunal had enunciated the following general principles:-
10. Insofar as issue no. 2 is concerned, we have relied upon the Circular of the Government of India in this regard. We have already dealt with the admitted position in this case. One MN Verma, who was CCIT from 01.04.2006 to 30.11.2006, was the immediate superior of the applicant. However, after retirement of MN Verma, there was no officer who had supervised the work of the applicant for three months or more. Therefore, there was no officer, who was competent to initiate ACR of the applicant. Admittedly, the resume of the applicant was submitted on 12.06.2007. One RR Singh, who was the Member, CBDT had been there for seven months for the period under report, recorded the ACR of the applicant in question on 26.07.2007 awarding the grading of Very Good. Rule 10 of the orders as contained in OM dated 23.09.1985 provides:-
10. When there is no Reporting Officer having the requisite experience.- A question has been raised as to the course of action to be adopted when, in the case of an officer, there is no Reporting Officer having the requisite experience of three months or more during the period of report, as a result of which no Reporting Officer is in a position to initiate the report. It has been decided that where for a period of report there is no Reporting Officer with the requisite experience to initiate the report, the Reviewing Officer himself may initiate the report as a Reporting Officer, provided the Reviewing Officer has been the same for the entire period of report and he is in a position to fill in the columns to be filled in by the Reporting Officer. Where a report is thus initiated by the Reporting Officer, it will have to be reviewed by the officer above the Reviewing Officer. From a plain reading of the above, three things clearly emerge. In the first place, there may arise conditions where there is no Reporting Officer having the requisite experience of three months or more during the period of the report; in the second place, in such eventuality, the Reviewing Officer may initiate the report as a Reporting Officer; and in the third place, this is subject to two conditions i.e. (i) he is in a position to fill in the columns to be filled in by the Reporting Officer implying thereby that he should have sufficient interaction with the officer reported upon so as to fill in all columns; and (ii) the Reviewing Officer has been the same for the entire period of the report. Here, there is a contest over these provisions. The applicant has asserted that the Reviewing Officer had only worked with him for only seven months and not for the entire period of the report. Moreover, he did not have sufficient interaction with the applicant so as to fill in all columns of the report. Therefore, according to the applicant, R.R. Singh was not competent to act as the Reporting Officer. On the other hand, the learned counsel for the respondents has vehemently argued that if this interpretation of the applicant were to be accepted, not very many ACRs would get written. If three months are sufficient for writing the ACRs by the Reporting Officer then why it is the entire period of the report for the Reviewing Officer to act in the capacity of the Reporting Officer. Assuming that the Reporting Officer was there, still the Reviewing Officer would have been there to review the ACR, which is the continuation of what the Reporting Officer has written. In that case also, it is valid for the entire period. If this logic were to be extended, then the report written by the Reporting Officer would only be valid for a period of three months for the reason that he has supervised his work for three months only. This is not the intention of the framers of these guidelines. The learned counsel for the respondents has further submitted that the instant set of instructions are not the rules framed under Article 309 of the Constitution of India but are only the guidelines lacking the sanctity of the Rules. Hence, these are only to be understood in the spirit of harmonious construction that the Reviewing Officer is competent to review the ACR whether he has served for more than 3 months provided for the Reporting Officer. Therefore, we hold that there was nothing wrong in initiating the ACR of the applicant by the Reviewing Officer. Besides, as it has rightly submitted, the Member one level above, who is acquainted with the work of the officer reported upon can record his APAR. Moreover, we take note of the fact that once the Government have notified the Chairman CBDT as the competent authority, this has to be challenged first. In the instant case, we find that there is no challenge to this procedure. In this regard, we rely upon the decision of the Calcutta Bench of this Tribunal in Dr. Nazrul Islam Vs.Union of India & Ors. (OA No. 1303/2013) decided on 03.12.2014 wherein it has been held that in absence of administrative rules, the executive instructions of the government shall continue to hold till such rules are framed. For the sake of clarity, the relevant paras are reproduced hereunder:-
4. Before discussing the issue, the first point which is required to be considered is that in absence of promotion rule relating to procedures, steps and parameters to adjudge merit-cum-suitability for empanelment by promotion in the rank of Director General of Police whether the guideline dated 15.1.1999 as quoted above could be considered as simply a guideline directory in nature or it be considered as binding executive/administrative instruction/ direction in absence of any legislation under first proviso of Article 309 of the Constitution of India and thereby having a binding effect to the State Government, the screening committee and its members while adjudging merit of candidates for promotion. It is an admitted position that under Article 309 of the Constitution of India the recruitment conditions and parameters could be fixed by legislation relating to the employees of All India Service. Article 309 of the Constitution of India deals with the provision for recruitment and conditions of service of persons serving the Union or a State. Article 309 of the Constitution of India reads:-
309. Recruitment and conditions of service of persons serving the Union or a State subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State;
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor [***] of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
5. It is now a settled legal position of service jurisprudence that in absence of any statutory rule the administrative instruction / direction/guidelines will hold the field. Reliance is placed to the judgment passed in the case of S.K. Mathur & ors. v. U.O.I. & ors. reported in (1998) 4 SCC 134 wherein in para 16 it has been held:-
..in the absence of Statutory Rules made under Article 309 of the Constitution, appointments and other conditions of service can be regulated by administrative orders or executive instructions. Therefore, to our mind, the challenge to the competence of the Chairman CBDT fails in light of the afore discussions.
32. Insofar as the fourth issue is concerned, we feel that it is a matter of details relating to the service where certain facts have been mentioned by the applicant and denied by the competent authority. Since they constitute a part of the APAR, it is not for us to sit in judgment over the same, as this Tribunal cannot take the place of superior competent authority and record the findings. In V.K. Sharma Vs. Union of India & Anr. (OA No. 4606/2011) decided on 03.01.2012, this Tribunal has held as under:-
5. In view of the clear reasons assigned in this order, we do not find the contention regarding the rejection of representation having been made without giving reasons. The other pleas taken are not found valid too. As per the settled law, recording of ACRs is within the legitimate domain of the competent administrative authorities; there is very limited scope for judicial intervention in such cases. Whereas, previously according to the prevailing DOP&T instructions, only adverse remarks were to be communicated; as a sequel to the decision of the Honble Apex Courts in the matter of Dev Dutt, all remarks as affect an employee adversely in grant of service benefits are required to be communicated. This is on the principles of natural justice so that the affected official does get an opportunity to represent his case before the authorities. However, once such remarks are communicated and the representation is considered by competent authorities, a further probe into the matter is not ordinarily called forth. In the present case, as there are clear reasons spelt out for the view taken by the respondents, no case for judicial interference is made out. The other pleas taken by the applicant: whether alleged bias; nature of preceding ACRs or non-communication of any Memo or Advisory Note, cannot help the matter. Since the foundational claim itself is not found to be tenable, the consideration of the consequential prayers made in the OA would be rendered unnecessary.
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.
34. In respect of the last of the issues, we hold that we have already taken stock of the situation. We find that it has been well admitted by the applicant that the remarks were recorded much after the due date prescribed both by the reporting as well as reviewing officers and also that the representation has been decided almost 9 months late by the competent authority. We have also taken note that in case of Devendra Swaroop Saxena Vs. Union of India & Ors. (supra), it is held that remarks recorded after the expiry of the period prescribed are not sustainable in the eyes of law, particularly when the APAR form had been submitted well within time by the applicant. We have also found that both the reviewing and reporting officers have retired, thus, the period under consideration, according to the judgment in the case of V.K. Singhla, Commissioner of Income Tax Vs. Secretary, Ministry of Finance and Ors (supra), is liable to be treated as No APAR period for the simple reason that consultation with the reporting and the reviewing officers has been included as a part of the process. We have further seen that once the procedure has been provided in the APAR, the same has to be followed and will have the force of law till such time as regular APAR rules and recruitment rules are framed. At the same time, we also find that the challenge to the competence of the Chairman, CBDT to decide the representation is not tenable. We have left the issue open regarding the remarks recorded in the APAR of the applicant, as the same is not within our competence nor do we have essential details on the basis of which such decision could be taken.
35. In view of the issues discussed above, we have a choice either to remand the case back to the competent authority or to declare the period as No APAR Period. However, we are guided by the fact that both the reporting and reviewing officers have already retired and no consultation can take place with them. Therefore, remanding the case back to the competent authority will be an exercise in futility, as the competent authority to whom the case is to be remanded would not have had the benefit of seeing the applicant functioning during this period. Therefore, the OA is allowed in favour of the applicant to the extent that the period from 22.07.2011 to 17.02.2012 is treated as No APAR Period. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/