Gauhati High Court
Hari Prakash (Go-1887X) vs The Union Of India & 2 Ors on 27 July, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No.2409/2015
Sri Hari Prakash (GO-1887X)
S/O Late Sri Badri Nath Srivastava
SE ( E & M) FS
Eastern Base Workshop (GREF)
PIN 931701
C/O 99 APO
.......Petitioner
-Versus-
1.The Union of India
Represented by the Secretary
Represented by the Defence Secretary
Ministry of Defence
New Delhi- 110 001
2.The Secretary
Border Roads Development Board (BRDB)
Room No.418, 'B' Wing
4th Floor, Sena Bhawan
New Delhi- 110 001
3.The Director General
Border Roads Organization
Seema Sadak Bhawan
Ring Road, Delhi Cantt.
New Delhi- 110 001
....... Respondents
BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioner : Mr. D Borah, Advocate.
For the Respondents : Mr. Y Doloi, Additional Advocate
General
Page 1 of 11
Date of Hearing :24.07.2017
Date of Judgment :27.07.2017
JUDGMENT AND ORDER( CAV)
Heard Mr. D Borah, the learned counsel for the petitioner and Mr. Y Doloi the learned Senior Central Government counsel for all the respondents.
2. The brief facts for disposal of the writ petition may be noticed at the outset. The writ petitioner was appointed as Executive Engineer (Electrical and Mechanical) on 1.11.1985. He was thereafter promoted to the post of Superintending Engineer (Electrical and Mechanical) on 1.9.2004. As per the 6th Central Pay Commission recommendation, in order to remove stagnation, non- functional upgradation scheme for Group-A services in Pay Band -3 and Pay Band-4 was introduced in the organisation vide BRDB Office Memorandum No.AB- 14017/64/2008-Estt.(RR) dated 24.4.2009, No.AD -14017/64/2008-Estt (RR) dated 1.7.2010 and AB 14017/30/2011-Estt (RR) dated 11.7.2011. The non- functional upgradation was in the pay scale of Rs.37400- 67000 with Grade pay of Rs.10000/- in Pay Band-4. The officer junior to the petitioner was extended the benefit of non-functional upgradation w.e.f 1.4.2011 vide communication dated 2.2.2012. However, the petitioner was not given the benefit of non- functional pay upgradation.
3. The next grievance highlighted by the petitioner is with regard to his downgrading the upgradation of his Annual Performance Assessment Report WP (C) No. 2409 of 2015 Page 2 of 11 (APAR) by the respondent authorities for the period (i) 17.8.2009- 31.3.2010 (ii) 13.8.2010 - 31.3.2011 and (iii) 26.4.2011 - 29.12.2011.
4. For the purpose of convenience, the 3 APARS in question may be referred to as (i), (ii), and (iii) respectively.
5. For APAR (i), although the petitioner was graded as 'very good' with 7.9. points by the Initiating Officer (I.O), the Reviewing Officer (R.O) downgraded him to 'good' with 5 points and the same was accepted by the accepting authority (A.O). For APAR (ii), the grading of 'very good' with 6 points given by the I.O. was downgraded to 'good' with 5.8 points by the R.O and A.O . Likewise the grading for the period (iii), I.O graded him as 'very good' with 6 points. Although the R.O. maintained the grading, the A.O. downgraded the APAR grading to 'good' (5.8 points). The downgrading according to the petitioner is illegal and against the established norms and guidelines.
6. The third grievance of the petitioner is that he was not given a command posting by the respondent authorities despite his representation and which otherwise was necessary to be eligible for non-functional upgradation of pay.
7. Appearing for the petitioner, Mr. D Borah, the learned counsel submits that there is no dispute with regard to the seniority list of Superintending Engineer (Electrical and Mechanical) under the organisation as on 1.1.2011 WP (C) No. 2409 of 2015 Page 3 of 11 wherein the petitioner has been placed at Serial No.2 of the list. However, the respondent authorities by ignoring the seniority position of the petitioner have given the person immediately junior to the petitioner whose name appears at Serial No.3 of the seniority list the benefit of non-functional upgradation of pay w.e.f. 1.4.2011 vide communication dated 2.2.2012. He submits that without there being any adverse service record of the petitioner, the petitioner could not have been deprived of the upgradation especially when his next junior officer in the seniority list was given such benefit.
8. The learned counsel by referring to the APAR for the period (i) submits that the grading of 'very good' given by the I.O. could not have been downgraded to 'good' by the R.O. and subsequently accepted as 'good' by the A.O. By referring to the dossier on preparation and maintenance of Annual Performance Assessment Report (the guidelines), he submits that the system of APAR on the performance of a Government Servant is a means to an end and not an end in itself. The petitioner should therefore have been communicated about the downgrading of his APAR by R.O on the decision to downgrading him prior to same being accepted by the A.O within 15 days of the entries made in terms of paragraph No.-2.13 (iii) of the guidelines. It is only when the petitioner fails to submit his representation within the prescribed time that the grading given in his APAR can be treated as final.
WP (C) No. 2409 of 2015 Page 4 of 11
9. Similarly for the assessment period of (ii) and (iii) of the APAR of the petitioner, the grading given to him by the I.O. could not have been downgraded without an intimation to him.
10. The learned counsel for the petitioner by referring to the justification assigned by the R.O. and A.O. for the period in question submits that the same can hardly be a meaningful and relevant justification. No reasons have been assigned by the superior officer concerned in downgrading the APAR of the petitioner besides the non-compliance of the relevant guidelines.
11. The petitioner after having submitted several representation to the respondent authorities for downgrading of is APAR in question rejected his claim for appropriate upgradation vide office memorandum dated 23.10.2013 (Annexure-P-13). However, by the impugned office memorandum dated 23.10.2013, the down grading APAR for the period (ii) was not considered by the respondent authorities. He submits that the petitioner retired from service on 28.2.2017 and it was only for the panel year 2014-15 that he was given the benefit of non-functional upgradation.
12. The learned counsel for the petitioner further submits that as regards the command posting required for at least two years as per the relevant rules for being considered for non-functional upgradation of pay, the discretion lies with the respondent authorities and therefore to be posted as such is beyond the WP (C) No. 2409 of 2015 Page 5 of 11 control of the petitioner. The petitioner therefore having not been granted the non-functional upgradation w.e.f. 1.4.2011 i.e. the date on which his next junior was granted such benefit is before this Court.
13. In order to substantiate his submission, the learned counsel Mr. D Borah relies upon the decision of this Court in the case of Bharat Singh Panwar -vs- Union of India reported in 2013 (2) GLT 1096 and the judgment and order dated 12.8.2015 rendered by a co-ordinate bench of this Court in WP (C) No.2218 of 2013 i.e. Sheo Balak Singh -vs- Union of India and Ors.
14. The learned counsel submits that in case of Bharat Singh Panwar (supra), this Court held that the system of APAR on the performance of a Government servant is a means to an end and not an end in itself in as much the ultimate goal is to optimise the achievement of Government policy and programme. This is possible only if the APAR lead to the optimisation of the performance of the concerned Government servant. The main focus of the R.O. should therefore be developmental rather than judgmental. APAR should be a true indication of the achievement of the Government servant. It should not be a mere tool to control or discipline him. Besides accepting the dossier on preparation and maintenance of confidential report, Court found that the downgrading of the APAR were virtually without recording any reasons there of. The view of the Court was endorsed adopted in case of Sheo Balak Singh (supra) wherein this Court by referring to the Apex Court's decision rendered in the case of Dev Dutt -vs- WP (C) No. 2409 of 2015 Page 6 of 11 Union of India reported in 2008 (8) SCC 725 and Sukdev Singh -vs- Union of India & Ors reported in 2013 (9) SCC 573 held that the respondent authorities should promptly communicate to every Government Servant the grading given in its APAR so that minimum remedial steps can be taken by the officer being graded. Having found that the petitioner therein was not communicated about the adverse entries made in the APARs of the petitioner, Court directed for fresh consideration of the petitioner by remanding the matter back to the authority concerned.
15. The learned counsel for the petitioner therefore submits that the petitioner similarly was denied of the same opportunity although he was communicated his APAR grading in a much later stage, the respondent authorities therefore be directed to grant the petitioner the non-functional upgradation of his pay scale to Pay Band- 4 in the Grade Pay of Rs.10,000/- w.e.f. 1.4.2011.
16. Appearing for the respondents, the learned Senior Central Government Counsel Mr. Y Doloi refers to the stand taken by the respondents in the affidavit- in-opposition filed on 28.8.2015. He submits that the petitioner is only eligible for grant of non-functional upgradation in accordance with the hierarchy of post subject to fulfilling the criteria as laid down in R and P Rules. The petitioner was required to complete two years of command experience as per the Rules to be eligible for being given the benefit of non-functional upgradation. The petitioner WP (C) No. 2409 of 2015 Page 7 of 11 having completed the required steps only on 26.1.2013, he became eligible for upgradation in the panel year of 2014-15. He further submits that the command posting is not based on seniority alone. In fact in order to be eligible for such posting, the performance of the officer concerned is also accounted for at the consideration of APAR is not limited only for a certain period but is related to the performance and overall efficiency in the post held by the officer. He submits that although the petitioner may have not been timely communicated with the downgrading in his APAR but nevertheless the R.O. and A.O. after properly considering and evaluating the performance of the petitioner decided not to accept the grading given by the I.O. and accordingly gave him a lower grading. Mr. Y Doloi submits that proper means were in fact assigned by the R.O. and A.O. before finally deciding upon the grading of the petitioner as was accepted.
17. Mr. Y Doloi by referring to the Annexure-R-1 of the additional affidavit filed by the respondent authorities on 20.4.2017 submits that the APARs of the petitioner were indeed communicated to him although there was slight delay in communicating the same to him.
18. I have considered the submissions advanced by the learned counsel appearing for the rival parties and I have also perused the materials available on record. Clause-1.2, 1.3, 1.4 and 1.5 of the dossier on preparation and maintenance of Annual Performance Assessment Report provides the guidelines as to how the I.O, R.O. and A.O. should act given a situation when there is WP (C) No. 2409 of 2015 Page 8 of 11 difference of opinion in the authority concerned as regard the grading given to the employee concerned . Clause-2.13 (iii) provides a period of 15 days from the date of receipt of entries in APAR to be communicated to the Assessed officer. It is only upon the failure on the part of the officer concerned to submit his representation upon the findings in the APARs that findings can be treated as final. By perusing the chart prepared by the respondents and annexed as Annexure-R-1 to their affidavit filed on 20.4.2017, it can be seen that the petitioner was communicated the grading or downgrading made by the authority concerned much beyond the period prescribed. Furthermore, the guidelines also provides that the objective of the assessment officer is primarily to improved the performance of the subordinate officer in his job and to assess the potentialities of the subordinate officer by providing him appropriate feedback and guidelines for future possible opportunity in services by timely communicating the assessment made upon him. However, it can be seen that such opportunity was not available to the petitioner and the impugned order passed through the office memorandum dated 23.10.2013 besides failing to apprise the APAR for the period (ii) do not disclose any reasoning by authority concerned in rejecting the claim of the petitioner.
19. The law with regard to non-communication of ACRs whether with adverse remarks or otherwise is well settled as can be seen from the case of Dev Dutt (supra) and Sukdev Singh (supra). Having regard to the facts and circumstances in the case in its entirety, I am of the considered opinion that the WP (C) No. 2409 of 2015 Page 9 of 11 petitioner was denied of the opportunity to make representation against the downgrading made in his APARs under consideration by the respondent authorities. In that view of the matter, the writ petition is disposed of with a direction to the respondent No.2 to consider the case of the petitioner afresh with regard to the APARs pertaining to the period (i) 17.8.2009 - 31.3.2010 (ii) 13.8.2010 - 31.3.2011 and (iii) 26.4.2011 - 29.12.2011 for granting him the Non-Functional Grade of pay in the pay scale of Rs.37400- 67000 with Grade pay of Rs.10,000/- in Pay Band-4 from the date on which his junior was given the benefit i.e. 1.4.2011. The respondent No. 3 shall forward all the relevant records required for consideration by the respondent No.2 within 15 days of receipt of a certified copy of this order and the respondent No.2 shall thereafter consider and take a decision within a period of 45 days from the date of receipt of communication from the respondent No.3. The impugned Office Memorandum dated 23.10.2013 in so far as paragraph (b) of the same is concerned is set aside. The decision taken by the respondent authorities shall be communicated to the petitioner.
20. It is needless to mention herein that in the event, the petitioner is found to be eligible for upgradation of his pay, anterior to the date on which he was given the benefit , his pay scale shall accordingly be refixed irrespective of the fact that he has since retired from his service.
WP (C) No. 2409 of 2015 Page 10 of 11
21. With the above observations and directions, this writ petition stands allowed. No cost.
JUDGE Nivedita WP (C) No. 2409 of 2015 Page 11 of 11