Central Administrative Tribunal - Delhi
Gurjinder Pal Singh vs Admin on 15 October, 2024
1
Item No. 15/ C-1 O.A. No. 3034/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3034/2024
This the 15th day of October, 2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
Gurjinder Pal Singh
S/o Paramjeet Singh Plaha,
Aged about 51 years,
Occupation-Director State Police Academy,
Chandkhuri, Raipur (C.G.) 492101
...Applicant
(By Advocate: Mr. Ankur Chhibber)
Versus
1. Union of India, Through Secretary,
Department of Home, North Block,
Ministry of Home Affairs,
New Delhi. 110001
2. State of Chhattisgarh
Through Additional Chief Secretary
Department of Home (Police)
Atal Nagar, Mahanadi Bhawan,
Raipur (CG), Pin: 492 001
3. Shri Bhupesh Baghel,
Chief Minister of Chhattisgarh,
Mahanadi Bhawan, Atal Nagar,
Raipur (C. G.) 492 101
...Respondents
(By Advocates: Mr. R K Jain and Mr. Avdesh Kumar Singh)
2
Item No. 15/ C-1 O.A. No. 3034/2024
ORDER (ORAL)
Hon'ble Mr. Rajinder Kashyap, Member (A):-
Since pleading in the matter are complete, by the consent of the learned counsel appearing for the respective parties, the OA is taken up for final hearing.
2. By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs:-
"8.1 That the learned Tribunal may kindly be pleased to call the entire records pertaining to the case of the applicants.
8.2 That the Hon‟ble Tribunal may kindly be pleased to quash the APAR‟s dated 31.12.2020 (Annexure A/1) pertaining to 2019-2020 in the interest of justice.
8.3 That the Hon‟ble Tribunal may kindly be pleased to expunge the adverse remarks and grading mentioned in the said APAR of the Applicant.
8.4 That the Hon‟ble Tribunal may kindly be pleased to direct the Competent Authority to reconsider/reassess the Applicant‟s case in a dispassionate and independent manner, in accordance with the relevant Rules, Regulations and OM‟s, from time to time, duly taking into consideration the Self Appraisal Report written by the Applicant.
8.4 Cost of the petition be awarded to the applicants.
8.5 Any other reliefs/direction in the facts and circumstances of his case to meet the ends of justice, may kindly be granted by this Hon‟ble Tribunal as it deems fit."
3. Brief facts of the case, leading to the filing of the instant OA and evident from the assertion made in the OA, are that the 3 Item No. 15/ C-1 O.A. No. 3034/2024 applicant belongs to 1994 Batch of the Indian Police Service and was initially allocated MP Cadre. On bifurcation of the State of MP, he was reallocated to the Chhattisgarh Cadre. The applicant has challenged the act of the respondents in downgrading the APAR to 6 on a scale of 10 for the year 2019- 2020 which is illegal, arbitrary, unjust and unfair. The same reads as follows:-
Period Tenure Status Grading
01.04.2019- The Applicant has challenged the
31.10.2019 downgraded APAR and preferred
2019- an OA No. 3034/2024 transferred
2020 01.11.2019- to Ld. Central Administrative
31.03.2020 Tribunal; Principal Bench, New
Delhi.
4. The applicant states that the APAR for the period of 2019- 2020 has been filled in complete contravention of the APAR Rules. During assessment for the period of 01.04.2019 to 31.10.2019, the applicant was not assessed by the Reporting Officer (RO) who supervised his work, instead in violation of the APAR Rules, the Reviewing-cum-Accepting Authority without taking into consideration the Self Appraisal Report of the applicant, assessed and graded applicant 'good'. Hence, the Reporting Officer, Reviewing Authority and Accepting Authority are same in the present case. He further states that for the assessment period from 01.11.2019 to 31.03.2020, the applicant was graded 7.9 along with highly appreciating comment to the extent that he even wrote "Overall he is an asset 4 Item No. 15/ C-1 O.A. No. 3034/2024 to any organization he works in". In contrast applicant was downgraded to numerical grading 6 by the Reviewing/Accepting Authority without assigning any reason and differing from the findings of the RO and Self Appraisal Report.
5. It is pertinent to note that this Hon'ble Tribunal while setting aside the order issued under Rule 16 (3) of the All India Services (Death cum Retirement Benefits) Rules, 1958 vide its Final Order dated 30.04.2024 passed in O.A. No. 2440/2023 titled Gurjinder Pal Singh vs. Union of India had discussed in detail the illegality and malice in the issuance of the impugned APAR. Relevant portion of same reads as under:
"31. So far as the ground relating to downgradation of ACR/APAR of the applicant for the assessment year 2019-20 is concerned, the applicant has alleged that the ACR/APAR for the year 2019-20 has been arbitrarily and adversely downgraded from 7.90 to
6.00, despite the stellar comments of the Reporting Authority that "Overall he is an asset to any organization he works in". On examining the contents of the aforementioned ACR/APAR, we find that the overall grading given by the Reporting Officer was 7.90, which has been reduced to 6.00 by the Reviewing Accepting Authority. In the pen picture given by the Reporting Authority, the following had been recorded:-
"He is polite and humble officer with pleasant habits.
He believes in delegation and encourages his subordinates to work as a team by extending required support.5
Item No. 15/ C-1 O.A. No. 3034/2024 He has the experience and competence to handle sensitive matters.
The officer possesses a very good knowledge of law, rules and procedure.
He is extremely hard working and sincere; who is willing to take additional responsibilities.
"Overall he is an asset to any organization he works in."
(emphasis supplied)
32. A mere glance at the above remarks shows that the Reporting Officer has been positively impressed by the polite demeanor as well as pleasant habits of the applicant, his support to his subordinates to work as a team, handle sensitive matters, his very good knowledge of law, rules and procedures, his willingness to take on additional responsibilities and his being an asset to the organization. Obviously, all these qualities point towards the officer being of an outstanding personality and caliber.
33. Against the above qualities, in the specific column regarding difference of opinion and detailed reasons therein, the Reviewing Authority has simply recorded as under: -
"Do not agree fully with the opinion provided by the appraising reporting authority. His working style needs to improve for him to become a better officer."
Further, in the comments on the pen picture written by the Reporting Authority, the following comments have been given:-
"He needs to improve his coordination skills and work batter as a member of a team. His working style needs to improve for him to become a better officer."
34. The aforementioned comments of the Reviewing/ Accepting Authority are very general in nature and cannot be taken as an explanation to substantially change the evaluation of the officer. Difference of 6 Item No. 15/ C-1 O.A. No. 3034/2024 opinion was required to be substantiated by quoting specific reasons thereof.
35. We, therefore, feel that in view of the major difference of opinion between the Reporting Officer and Reviewing/Accepting Authority, it was incumbent upon the Reviewing/Accepting Authority to specifically bring out the reasons for disagreeing with the excellent evaluation of the Officer (applicant) given by the Reporting Authority.
36. In view of the above, it is felt that the down gradation of the overall performance from 7.90 to 6.00 has not been substantiated by any logical reasoning, which was required to be given by the Reviewing/Accepting Authority.
Therefore, justification for this down gradation is conspicuous by its absence."
6. It is further submitted that the aforesaid judgment was challenged before the Hon'ble High Court of Delhi in W. P. No. 10703/2024 in the matter of Union of India Vs. Gurjinder Pal Singh & Anr.. The Hon'ble High Court vide its judgment dated 23.08.2024 was pleased to uphold the judgment passed by this Hon'ble Tribunal and further recorded as under:
"33. Now coming to the Annual Performance Report (APAR) of respondent No.1 for the year 2019-2020, which shows his downgraded performance. This Court finds that for the period 1.04.2016 till 05.07.2017 and also for 06.07.2016 till 31.03.2017, respondent No. I was awarded grading '10'. For the period 01.04.2017 till 27.12.2017, respondent No.1 was awarded grading of '9.5' and again for 28.12.2017 till 31.03.2018 and from 01.04.2018 till 31.03.2018, respondent No. I was awarded grading '10'. However, for the period 01.11.2019 till 31.03.2019, he has been given grading of '6'.
Furthermore, the APAR grading for the period 7 Item No. 15/ C-1 O.A. No. 3034/2024 01.11.2019-31.03.2020, the reporting officer gave 'outstanding' entry to the Applicant.
34. While issuing the impugned order it has been observed that keeping in view the entire service record', whereas the Review Committee has taken into consideration the period of only last five years, which apparently is in violation of Office Memorandum No. 25013/02/2005- AIS II dated 28.06.2012 issued by the Department of Personnel and Training."
7. So far as the ground relating to down gradation of ACR/APAR of the applicant for the assessment year 2019-20 is concerned, the applicant has alleged that the ACR/APAR for the year 2019-20 has been arbitrarily and adversely downgraded from 7.90 to 6.00, despite the stellar comments of the Reporting Authority that "Overall he is an asset to any organization he works in". On examining the contents of the aforementioned ACR/APAR, we find that the overall grading given by the Reporting Officer was 7.90, which has been reduced to 6.00 by the Reviewing/Accepting Authority. In the pen picture given by the Reporting Authority, the following had been recorded:-
"He is polite and humble officer with pleasant habits.
He believes in delegation and encourages his subordinates to work as a team by extending required support.
He has the experience and competence to handle sensitive matters.
The officer possesses a very good knowledge of law, rules and procedure.8
Item No. 15/ C-1 O.A. No. 3034/2024 He is extremely hard working and sincere; who is willing to take additional responsibilities.
Overall he is an asset to any organization he works in."
(emphasis supplied)
8. A mere glance at the above remarks shows that the Reporting Officer has been positively impressed by the polite demeanor as well as pleasant habits of the applicant, his support to his subordinates to work as a team, handle sensitive matters, his very good knowledge of law, rules and procedures, his willingness to take on additional responsibilities and his being an asset to the organization. Obviously, all these qualities point towards the officer being of an outstanding personality and caliber.
9. Against the above qualities, in the specific column regarding difference of opinion and detailed reasons therein, the Reviewing Authority has simply recorded as under:-
"Do not agree fully with the opinion provided by the appraising/reporting authority. His working style needs to improve for him to become a better officer."
Further, in the comments on the pen picture written by the Reporting Authority, the following comments have been given:-
"He needs to improve his coordination skills and work better as a member of a team. His working style needs to improve for him to become a better officer."9
Item No. 15/ C-1 O.A. No. 3034/2024
10. The aforementioned comments of the Reviewing/Accepting Authority are very general in nature and cannot be taken as an explanation to substantially change the evaluation of the officer.
Difference of opinion was required to be substantiated by quoting specific reasons thereof.
11. We, therefore, feel that in view of the major difference of opinion between the Reporting Officer and Reviewing/Accepting Authority, it was incumbent upon the Reviewing/Accepting Authority to specifically bring out the reasons for disagreeing with the excellent evaluation of the Officer (applicant) given by the Reporting Authority.
12. In view of the above, it is felt that the down gradation of the overall performance from 7.90 to 6.00 has not been substantiated by any logical reasoning, which was required to be given by the Reviewing/Accepting Authority. Therefore, justification for this down gradation is conspicuous by its absence.
13. The applicant had made a representation against the down grading of ACR/APAR but his representation was not decided within limitation. Aggrieved by this inaction, the applicant had preferred O.A. No. 02/2022 before the Jabalpur Bench of the Tribunal against the arbitrary action of down grading of the aforesaid ACR of the applicant. This O.A. is stated to be pending consideration before the Jabalpur Bench of this Tribunal. Vide 10 Item No. 15/ C-1 O.A. No. 3034/2024 order dated 17.05.2024, the same was transferred from Jabalpur Bench of CAT to its Principal Bench, New Delhi by way of P.T. No. 126/2024. Order dated 17.05.2024 reads as follows:-
"Heard learned counsel for the respective parties.
This P.T. has been filed by the applicant with a prayer to transfer the proceedings of subject O.A. from Jabalpur Bench (Circuit Court Sitting at Bilaspur) to the Principal Bench of this Tribunal.
The applicant in the subject O.A. has challenged the adverse remarks in the APAR for the assessment year 2019-20. He is an IPS officer and his cadre controlling authority is respondent No.1, i.e., Ministry of Home Affairs, New Delhi. Learned counsel for the applicant makes a statement that currently the applicant is residing in Delhi, and, therefore, it would be convenient for him to pursue the proceedings of the subject O.A. before the Principal Bench.
Be that as it may, respondent No.2, i.e., State of Chhattisgarh has no serious objection if the proceedings of the subject O.A. are transferred to the Principal Bench.
In the facts and circumstances of the case, I allow this P.T. in exercise of my powers under Section 25 of the Administrative Tribunals Act, 1985 and transfer the proceedings of the subject O.A. to the Principal Bench of this Tribunal.
The Registry is directed to take necessary steps in this regard."
14. Counter reply dated 15.06.2022 has been filed by the respondent no. 2 i.e. State Govt. of Chhattisgarh. While submitting the reply to Para 4.6 of the OA in Para 3.6 of the 11 Item No. 15/ C-1 O.A. No. 3034/2024 counter reply, the respondents have stated that the applicant was transferred due to administrative exigencies and not on action of ill nurtured against him by the top officers. It is further submitted by them that the facts regarding achievements and commendations are not disputed as the same is matter of record. They further submit that the applicant's APAR for the year 2019-2020 was only granted 'GOOD' remark not on account of any ill-will or ill motive but upon fair and proper assessment. The representation of the applicant has also been decided with reasoned and speaking order. There is absolutely no ill motive or ill-will against the applicant and therefore, the decision has been taken in accordance with law.
15. While replying to para 4.16 of the OA, the respondents submitted that constitution of SIT has been done by the administration with a purpose and in the present dispute the same neither can be looked into as any action on the part of SIT is and can be challenged in appropriate forums. It is submitted that the RA-cum-AA has looked into all the materials placed before him and only thereafter upon due application of mind has come to the conclusion and has awarded the grade to which the applicant is entitled. Merely if the grades are low, the same cannot be attributed as unjust and arbitrary. The respondents submit that an Original Application is pending registered as OA 8 of 2021 and therefore it would not be appropriate to comment on that aspect. In so far as allegation regarding retaliatory and 12 Item No. 15/ C-1 O.A. No. 3034/2024 vindictive approach is concerned the same is absolutely baseless. In so far as the downgrading of the applicant's APAR is concerned, it is only on account of his performance which was not up to the mark.
16. Heard learned counsel for the parties and examined the pleadings in this OA and record relating thereto.
17. The grievance of the applicant in the instant OA is that his APAR for the year 2019-2020 which is written in 2 Parts (Part-I is for the period from 01.04.2019 to 31.10.2019 and Part-II is for the period from 01.11.2019 to 31.03.2020), has been downgraded in arbitrary manner. As per information given by the applicant, Reporting Officer for writing his APAR is Chief Secretary and for the first period i.e. from 01.04.2019 to 31.10.2019, Sh. Sunil Kr. Kujur is mentioned as Reporting Officer, the Reviewing and Accepting Authority in the case of APAR of the applicant is the Hon'ble Chief Minister of Chhattisgarh. As Reporting Officer demitted office and did not report APAR for the relevant period, hence, the APAR was completed by Reviewing and Accepting Authority.
18. As per the certificate dated 31.12.2020 given by Sh. Manoj Shrivastava, Under Secretary of Chhattisgarh, Home (Police Department), it is stated that the applicant has worked as Inspector General of Police (EOW) & ACB, Raipur during the year 2019-2020 (period from 01.04.2019 to 31.10.2020) the 13 Item No. 15/ C-1 O.A. No. 3034/2024 Reporting Officer of his Performance Appraisal Report Sh. Sunil Kr. Kujur, the then Chief Secretary, Government of Chhattisgarh, since the Reporting Officer Sh. Sunil Kr. Kunjur, IAS dated 31.10.2019 has retired, hence, under Rule 5 (2) of All India Performance Appraisal Rules, 2007. The APAR of the applicant cannot be done by the Chief Secretary, State of Chhattisgarh. Section IV of the APAR for the said period is filled up by the Reviewing Authority i.e. the Hon'ble Chief Minister on 31.12.2020. While filling up information in above mentioned section IV, which provides for Reviewing Authority to record his observation. The following observation has been recorded by the Reviewing Authority: -
"Section IV - Review
1. Do you agree with the assessment made by the reporting officer with respect to the work output and the various attributes in Section III? Do you agree with the assessment of the reporting officer in respect of extraordinary achievements and/or significant failures of the MoS/officer reported upon?
(In case you do not agree with any of the numerical assessments of attributes please record your assessment in the column provided for you in that section and initial your entries).
No
2. In case of difference of opinion details and reasons for the same may be given.
No assessed by reporting authority. Do not agree with assessment by reviewing authority.
3. Comments, if any, on the pen picture written by the Reporting Authority.
Reporting authority has not assessed. He is a good officer and capable of providing quality output and on time. He is courteous to all and sensitive to the weaker sections. He works well as a team.14
Item No. 15/ C-1 O.A. No. 3034/2024
4. Recommendation relating to domain assignment (Please tick mark any four) Anti-corruption & Vigilance Police Research & Development Criminal Investigation (CBI, CID) Security Related Communication Network/IT Paramilitary forces Intelligence Railways Counter insurgency Economic Offences Security (VIP & Industrial) Traffic ✔ Armed Police Bn.
Law & Order ✔
Metropolitan & Urban Policing ✔
Police Training ✔
Anti Terrorism
Personnel Administration
Cyber Crimes
Border Management
Forest & Wild life related crimes
Others
5. Overall grade (on a score of 1-10).
6
Date : 31/12/2020 Signature of Shri. BHUPESH BAGHEL
Reviewing Authority CM001CHH
CHIEF MINISTER
Content of this section is Digitally Signed by BHUPESH BAGHEL on 31/12/2020 22:48.52 using DSC Service"
19. Section V provides for recording observation by the Accepting Authority. In this case, the Reviewing and Accepting Authority is the same. The Accepting Authority has recorded the following observation: -
"Section V - Acceptance
1. Do you agree with the remarks of the reporting/reviewing authorities?15
Item No. 15/ C-1 O.A. No. 3034/2024
Yes
2. In case of difference of opinion details and reasons for the same may be given.
I am both reviewing and accepting authority in this case therefore I have nothing more to add
3. Overall grade (on a score of 1-10).
6
Date : 31/12/2020 Signature of Shri. BHUPESH BAGHEL
Reviewing Authority CM001CHH
CHIEF MINISTER
Content of this section is Digitally Signed by BHUPESH BAGHEL on 31/12/2020 22:51.05 using DSC Service"
20. For the second part of APAR for the year 2019-2020 (the period from 01.11.2019 to 31.03.2020), the Reporting Authority is Sh. Rajendra Prasad Mandal, Chief Secretary and Reviewing and Accepting Authority is Sh. Bhupesh Baghel, the Hon'ble Chief Minister of Chhattisgarh. The self-appraisal for the said APAR has been filled up by the applicant on 21.08.2020. The Reporting Officer has made following grounds:-
"Section III Appraisal
1. Assessment of Attributes (This assessment should rate the officer vis-a-vis his peers and not the general population. Grades should be assigned on a scale of 1-10, in whole numbers, with 1 referring to the lowest grade and 10 to the best grade. 70% weightage will be assigned to this item).
S.No. Description Reporting Reviewing Initial of
Authority Authority Reviewing
Authority
1. Attitude to 7.8 5.6 Shri.
work BHUPESH
BAGHEL
2. Decision 7.8 5.9 Shri.
making ability BHUPESH
BAGHEL
3. Initiative 7.8 5.6 Shri.
BHUPESH
BAGHEL
4. Ability to 7.8 5.8 Shri.
inspire and BHUPESH
16
Item No. 15/ C-1 O.A. No. 3034/2024
motivate BAGHEL
5. Strategic 7.8 5.9 Shri.
Planing BHUPESH
ability/ BAGHEL
innovativeness
6. Coordination 7.8 5.6 Shri.
ability BHUPESH
BAGHEL
Overall 7.8 5.78 Shri.
grading on BHUPESH
attributes BAGHEL
2. Assessment of work output (This assessment should rate the officer visa-vis his peers and not the general population. Grades should be assigned on a scale of 1-10, in whole numbers, with 1 referring to the lowest grade and 10 to the best grade. 30% weightage will be assigned to this item.) S.No Description Reporting Reviewing Initial of . Authority Authority Reviewing Authority
1. Accomplishment of 8.8 6.7 Shri. planned work BHUPESH BAGHEL
2. Quality of output 7.8 5.9 Shri. BHUPESH BAGHEL
3. Accomplishment of 7.8 6.9 Shri. exception BHUPESH work/unforeseen BAGHEL tasks performed during the period Overall Grading 8.13 6.5 Shri. on „Work Output‟ BHUPESH BAGHEL
3. Integrity Please comment on the integrity of the officer, keeping in mind both his financial integrity and his moral integrity.
Beyond Doubt
4. Pen picture by the Reporting Authority Please comment (in about 100 words) on the overall qualities of the officer including areas of strengths and lesser strengths and his attitude towards weaker sections.17
Item No. 15/ C-1 O.A. No. 3034/2024 He is polite and humble officer with pleasant habits. He believe in delegation and encourages his subordinate to work as a team by extending required support He has the experience and competence to handle sensitive matters. The officer posses a very good knowledge of law, rules and procedure.
He has he experience & competence to handle sensitive matters. He is extremely Hard working and sincere; who is willing to take additional responsibilities.
Overall he is an asset to any organization he work in.
5. Recommendation relating to domain assignment (Please tick mark any four) Anti-corruption & Vigilance Police Research & Development Criminal Investigation (CBI, CID) Security Related Communication ✔ Network/IT Paramilitary forces Intelligence Railways Counter insurgency Economic Offences Security (VIP & Industrial) Traffic Armed Police Bn.
Law & Order ✔
Metropolitan & Urban Policing
Police Training
Anti Terrorism
Personnel Administration
Cyber Crimes ✔
Border Management ✔
Forest & Wild life related crimes
Others
7. Overall grade (on a score of 1-10).
7.90
Date: 06/10/2020
Signature of Reporting Mr. Rajendra Prasad Mandal
Authority 01CG040100
CHIEF SECRETARY
Content of this section is Digitally Signed by RAJENDRA PRASAD MANDAL on 06/10/2020 15:05:28 using DSC Service"18
Item No. 15/ C-1 O.A. No. 3034/2024
21. The Reporting Authority has rated the applicant with 7.90 numerical grading. The Reviewing and Accepting Authority has recorded his remarks in the APAR for the relevant period on 30.12.2020. The remarks recorded by the Reviewing and Accepting Authority in Section IV and V of APAR are as follows:-
"Section IV - Review
1. Do you agree with the assessment made by the reporting officer with respect to the work output and the various attributes in Section III? Do you agree with the assessment of the reporting officer in respect of extraordinary achievements and/or significant failures of the MoS/officer reported upon?
(In case you do not agree with any of the numerical assessments of attributes please record your assessment in the column provided for you in that section and initial your entries).
No
2. In case of difference of opinion details and reasons for the same may be given.
Do not agree fully with the opinion provided by the appraising/reporting authority. His working style needs to improve for him to become a better officer.
3. Comments, if any, on the pen picture written by the Reporting Authority.
He needs to improve his coordination skills and work batter as a member of a team. Reporting authority has not assessed. He is a good officer and capable of providing quality output and on time. He is courteous to all and sensitive to the weaker sections. He works well as a team.
4. Recommendation relating to domain assignment (Please tick mark any four) Anti-corruption & Vigilance Police Research & Development ✔ Criminal Investigation (CBI, CID) Security Related Communication Network/IT Paramilitary forces Intelligence Railways 19 Item No. 15/ C-1 O.A. No. 3034/2024 Counter insurgency Economic Offences Security (VIP & Industrial) Traffic ✔ Armed Police Bn.
Law & Order ✔
Metropolitan & Urban Policing
Police Training
Anti Terrorism
Personnel Administration ✔
Cyber Crimes
Border Management
Forest & Wild life related crimes
Others
5. Overall grade (on a score of 1-10).
6
Date : 30/12/2020 Signature of Shri. BHUPESH BAGHEL
Reviewing Authority CM001CHH
CHIEF MINISTER
Content of this section is Digitally Signed by BHUPESH BAGHEL on 30/12/2020 18:10.08 using DSC Service.
V - Acceptance
1. Do you agree with the remarks of the reporting/reviewing authorities?
Yes
2. In case of difference of opinion details and reasons for the same may be given.
I am both reviewing and accepting authority in this case therefore I have nothing more to add
3. Overall grade (on a score of 1-10).
6.00 Date: 30/12/2020 Signature of Accepting Shri. BHUPESH BAGHEL Authority CM001CHH CHIEF MINISTER Content of this section is Digitally Signed by BHUPESH BAGHEL on 30/12/2020 18:12:11 using DSC Service"
22. Learned counsel for the applicant, in support of his contention, has placed reliance on the following decisions:- 20
Item No. 15/ C-1 O.A. No. 3034/2024
(i) Hon'ble Supreme Court of Delhi in Civil Appeal No. 1878 of 1997 in the matter of State of U.P Vs. Yamuna Shankar Misra & Anr. decided in 21.02.1997, wherein it is held as under:-
"6. In Sukhdeo vs. Commissioner Amravati Division. Amravati & Anr. [(1996) 5 SCC 103 paragraph 6] this Court has pointed out that "It is settled law that when the Government resorts to compulsorily retire a Government servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinised and the power would be reasonably exercised. In State Bank of India vs. Kashinath Kher [JT (1996) 2 SC 569 at 578 para 15], this Court had held that the controlling officer while writing confidential and character roll report, should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honestly and integrity so as to improve excellence of the individual officer, lest the officers get demoralised which would be deleterious to be efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected to from that high responsible officer who made the remarks. When an officer makes the remarks, he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. It would be salutary that the controlling officer b before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in writing for improvement and yet was not availed of so that it would form part of the record."
7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to 21 Item No. 15/ C-1 O.A. No. 3034/2024 give an opportunity to a public servant to improve excellence. Article 51A (j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
8. It is seen from the record that the respondent maintained constantly good record earlier to the adverse remarks made for the aforesaid period. It would appear that subsequently also he had good confidential reports on the basis of which the clouds over his conduct were cleared and he was given further promotion. Mr. Rakesh Dwivedi, learned Advocate General, in fairness, therefore, has stated that since the respondent has been regularised after the subsequent good reports, the dispute does not survive for adjudication on merits. But the counter comments made against him by the Secretary were warranted in view of the material on record. He brought to our notice that as on the date when the entries were made, the vigilance enquiry was pending against the respondent and, therefore, the adverse remarks came to be made. The findings recorded by the Tribunal of malice and arbitrariness on the part of Secretary as affirmed by the High Court are not warranted for two reasons. Firstly, since the 22 Item No. 15/ C-1 O.A. No. 3034/2024 Secretary was not co- nominee to the proceedings and had no opportunity to explain the position, it would be violative of the principle of natural justice. Secondly, since the vigilance enquiry was pending. unless the officer was exonerated and cleared from the cloud, necessarily, the Secretary could not clear the conduct and integrity of the officer. Therefore, the adverse remarks cannot be said to be to smack of arbitrariness.
9. The appeal is accordingly allowed only the above extent. No costs."
(ii) Hon'ble High Court of Delhi in WP (C) 8377/2021 in the matter of Col. Vinod Dahiya Vs. Union of India & Ors. decided in 15.01.2024, wherein it is held as under:-
"6. The submission of Mr. Chhibber is that in the peculiar facts of this case, where the RO was the IO, he could not have endorsed his own observation in ACR as RO. He should have placed the ACR before the next higher authority which is the AO. But in the present case the ACR having been placed before the AO, the AO has decided not to act on the ACR as he has not seen the performance of the petitioner.
*** *** ***
11. We are of the view that the RO being the IO could not have endorsed the same ACR which he has initiated as IO. The same is contrary to the instructions of the DOP&T. Moreover, the AO has not endorsed the ACR. We agree with Mr. Chhibber, when he has placed reliance on the judgment of this Court to contend that, when the instructions provide three tier hierarchical structure, the ACR should be considered by at least two authorities to make the ACR valid."
(iii) Hon'ble High Court of Delhi in WP (C) 3533/2020 in the matter of Sanjeev Dhundia Vs. Union of India & Ors. decided in 21.12.2020, wherein it is held as under:-
"5. The learned counsel for the petitioner submitted that the recording of the APAR by the respondent No. 4 was against all guidelines issued by the Government in this regard and against the law laid down by the courts. Relying on Swamy's Compilation and the Standing Order No. 56/2001 with regard to the preparation and maintenance of annual confidential reports of officers, he submitted that before recording of lower grading such as "Average" or other adverse remarks, the individual should be 23 Item No. 15/ C-1 O.A. No. 3034/2024 suitably advised in writing well in advance, so that the officer had an opportunity to improve himself over the period of one year. It was also argued that an incident that had allegedly occurred after the period for which the APAR was to be recorded, could not be considered for assessing an officer in a given year. Therefore, the complaint in respect of an incident that occurred in June, 2019 could not have been considered while recording the APAR for the year 2018-19. Therefore, procedurally too, the recording was faulty and bias was writ large in the recording of the APAR of the petitioner and the same was required to be set aside. Reliance has been placed on the judgements of the Supreme Court in M. A. Rajasekhar v. State of Karnataka, (1996) 10 SCC 369 and State of UP v. Yamuna Shanker Mishra and Another, (1997) 4 SCC 7 and Sukhdeo v. Commissioner Amravati Division (1996) 5 SCC 103 and the judgement of the Delhi High Court in SK Sharma v. Union of India and others, 2015 SCC Online Del 13399.
*** *** ***
8. It would be useful to refer to Swamy's Compilation on confidential reports of central government employees, placed on record by the petitioner. While cautioning that the "main focus of the Reporting Officer should be developmental, rather than judgemental", it states the object of recording the Annual Performance Assessment Report (APAR) in the following words:
"4.Thus the system of APAR has two principal objectives. First and foremost is to improve the performance of the subordinate in his present job. The second one is to assess his potentialities and provide him appropriate feedback and guidance for correcting his deficiencies and improve his performance.
*** *** ***
10. No doubt, the Supreme Court in Sukhdeo (supra) was dealing with a case of compulsory retirement. However, some of its observations regarding adverse remarks and the principles of natural justice can be noted profitably: "6. ......................... In this case, the power exercised is illegal and it is not expected of from that highly responsible officer who made the remarks. When an officer makes the remarks he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. It would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior 24 Item No. 15/ C-1 O.A. No. 3034/2024 opportunity in writing for improvement and yet was not availed of so that it would form part of the record.........".
11. Again, the Supreme Court in Yamuna Shanker Mishra (supra), observed as below:
"7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence.................. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge notoriety and may be within his knowledge. Before forming an opinion to be adverse, reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgement, conduct, behaviour, integrity or conduct/corrupt proclivity. If despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
17. This court, as reflected in several decisions, has been reluctant to accept a situation where an officer consistently assessed as "Outstanding" or "Very Good" becomes "Good" or "Average" in one or two years in the absence of any cogent data justifying it. No doubt, an APAR is intended for an annual assessment of performance. There may be differences in the performance of an officer from one year to the next. However, the differences should not occur on account of different Reporting Officers. The performance cannot also be erratically or whimsically assessed that in the midst of consistent 'excellent' performances an officer slides to 'good' or 'average' or 'below average' performances in a couple of instances. What is more, whenever the Reporting Officer notices any such slide, it is incumbent upon him/her to find out the reason for the decline in 25 Item No. 15/ C-1 O.A. No. 3034/2024 performance and to resolve the issue(s) causing the fall in the performance of the officer who has till then been 'excellent' in the discharge of his duties.
18. In the present case, the petitioner has consistently been recorded as a 'very good' and 'outstanding' officer, as is clear from the APARs placed as Annexure P-3 in the electronic file, and as is not disputed by the respondents. When the same Reporting Officer, i.e. respondent No. 4 had assessed the petitioner as "Very Good" with adverse remarks, for the previous year i.e. 1st April, 2017 to 31st March 2018, the Accepting Authority upgraded it to "Outstanding" despite such adverse remarks and which remarks were subsequently expunged by the MHA. The very next year, the respondent No. 4 graded the petitioner only as "Good". The letter of 14th August, 2018 is itself reflective of the prejudice of the respondent No. 4 for he seems to have been peeved with the petitioner for having described in his reply of 14th August, 2018, that, he had liaised with BPR&D, CDTS, IIT Kharagpur to design various courses suitable for Force officers and personnel and obtain seats in the same, as he has remarked in his letter dated 14th August, 2018 that the initiative for designing the courses had been undertaken by him, i.e. respondent No. 4 and not the petitioner and that "taking credit of the work done by a senior was not proper" and it "should have been avoided". This seems to be the only piece of "advice" that the respondent No. 4 had given in writing, to the petitioner! But again, there is nothing to show that the petitioner had subsequently, too, claimed for himself, the work done by his senior officers, including the respondent No. 4. The petitioner has offered a plausible explanation for not submitting a reply to this second letter of the respondent No.4. According to him, the reply had not been sent in writing on account of the discussion he had had on 14th August, 2018 with the respondent No. 4. The respondents in their counter affidavit have admitted that such a meeting had in fact taken place. It is probably on account of the lack of trust between the two that the petitioner recorded what transpired on the same letter (page 374 of the electronic file)."
23. So far as APAR for the period from 01.04.2019 to 31.10.2019 is concerned, there is no Reporting Authority and remarks of Reviewing/Accepting Authority (which is the same) are available. This issue has been dealt in by the Hon'ble High Court of Delhi in the matter of Mrs. B Jumrani Vs. National Buildings Construction Corp. Ltd & Ors. in WP (C) No. 4481/1994 decided on 26.07.1999, it was held that 26 Item No. 15/ C-1 O.A. No. 3034/2024 based on same IO/RO, ACR cannot be accepted. It necessarily has to be dealt with by two officers at different levels for it to be considered as valid. Admittedly, when there is no second acceptance, in the case in hand, the same cannot be said to be valid. The paragraph No. 42 of the said judgment reads as under:-
"42. There is no doubt that an ACR has to be written objectively and dispassionately. It is intended to give an opportunity to an officer to remove any deficiencies and to improve the efficiency of public service. It is for this reason that a three tier hierarchical structure is adopted for the recording of an ACR. Quite clearly, the object of recording on ACR cannot be achieved if the RO1, RO2 and CO are one and the same. One officer, however superior or competent, cannot replace a three tier structure in matters of objective assessment, impartiality and improvement of public service. We have no dobut that such an ACR cannot be accepted as correctly appraising the performance of an officer. For this reason, we are also not impressed by the submission that because the DPC held in 1993 and September 1994 found nothing wrong with the ACR of 1992-93, it should be accepted as correct."
(emphasis supplied) 23.1. In view of the position laid down in Col. Vinod Dahiya (supra) and as laid down in the judgment in the matter of Mrs. B. Jumrani Vs. National Buildings Construction Corp. Ltd. & Ors., W.P. (C) 4481/1994, it is held for the period from 01.04.2019 to 31.10.2019 needs to be treated as invalid and it is ordered accordingly.
24. For the APAR period from 01.11.2019 to 31.03.2020, a perusal of the observations recorded by the Reporting Officer reveals the positive attributes of applicant. While recording such remarks, the Reporting Officer has mentioned that the applicant possess polite demeanor as well as pleasant habits, 27 Item No. 15/ C-1 O.A. No. 3034/2024 his support to his subordinates to work as a team, his deft handling of sensitive matters, his very good knowledge of law, rules and procedure, his willingness to take additional responsibilities and he being an asset to the organization, such positive observations recorded on the qualities of the applicant by the Reporting Officer reveal that the applicant is an officer having outstanding personality and caliber.
25. Against the above qualities, the Reviewing Authority has recorded his opinion and has stated that he does not agree fully with the opinion provided by the Appraising/Reporting Authority. The Reviewing/Accepting Authority states that working style of officer needs to improve for him to become a better officer. While recording pen picture, the comments written by the Reporting Authority is that the officer needs to improve his coordinate skills and work better as a member of a team. His work style needs to improve for him to become a better officer. With these observations, the numerical grading has been brought down to numerical grading 6.0 while writing Review/Accepting remarks on 30.12.2020.
26. DoP & T vide OM No. 21011/01/2009-Estt.(A)(Pt.II) dated 27.03.2020 has prescribed a time schedule for the preparation/completion of confidential reports which provides that submission of self-appraisal to Reporting Officer by officer to be reported upon to be completed by 15.04.2020. The APAR 28 Item No. 15/ C-1 O.A. No. 3034/2024 period of 2019-2020 (i.e. from 01.04.2019 to 31.03.2020) falls within the period of COVID-19 pandemic for which the abovementioned guidelines were revised vide DoP & T OM No. 21011/01/2009-Estt. (A)(Pt.II) dated 27.03.2020 on the subject 'Extension of timelines for Recording of Annual Performance Assessment Report (APAR) for the year 2019-2020 in respect of Group-A and Group-B officers of Central Secretariat Service (CSS) through SPARROW Portal'. For facility of reference same is reproduced below:-
"The undersigned is directed to say that this Department vide OM dated No. 21011/01/2009-Estt. (A) (Pt. II) dated 23.07.2009 as prescribed time schedule for recording and completion of APAR.
2. In the light of situation arising out of spread of Novel Coronavirus (COVID-19), it has been decided with the approval of competent authority to revise the time schedule for some of the activities relating to recording of APAR, Accordingly, in partial modification in OM dated 23.07.2009 referred in para 1 above, the revised time lines in respect of APAR for the year 2019-20 shall be as indicated in the table given under:
Activity Date by which to be
completed
Existing Revised
Distribution of blank APAR forms 31st 31 May
st
to all concerned (i.e. to officers March (This may be
reported upon where self- completed even
appraisal has to be given and to a week earlier)
reporting officers where self
appraisal is not to be given
Submission of self-appraisal to 15th April 30th June
reporting officer by officer to be
reported upon (where applicable)
3. For the remaining activities in the schedule at Annexure-III to OM dated 23.07.2009, separate orders will be issued in due course of time.
Time schedule for recording and completion of APAR for the year 2019-2020 for Group „A‟, „B‟ and „C‟ officers of Central Civil Services."29
Item No. 15/ C-1 O.A. No. 3034/2024
27. Further, a clarification was issued by DoP & T on 30.03.2020 regarding time schedule for recording and completion of APAR for the year 2019-2020 for Group 'A', 'B' and 'C' officers of Central Civil Services. For facility of reference same is reproduced below:-
Sl. Activity Date by which
No. activity to be
completed
(1) (2) (3)
1. Distribution of blank forms 31 st May 2020
(May be completed
even a week
earlier)
2. Submission of Self-Appraisal to 30th June 2020
reporting officer
3. Forwarding of report by 31st July 2020
reporting officer to reviewing
officer
4. Forwarding of report by 31st August 2020
reviewing officer to APAR
Cell/Accepting Authority
(wherever provided)
5. Appraisal by Accepting 30th September
Authority, wherever provided 2020
6. (i) Disclosure of APAR to the 10th September
officer reported upon where 2020
there is no accepting authority
(ii) Disclosure of APAR to the 10th October 2020
officer reported upon where
there is accepting authority
7. Receipt of representation, if any, 15 days from the on APAR date of disclosure
8. Forwarding of representation to the competent authority
(a) Where there is no 30th September accepting authority for APAR 2020
(b) Where there is accepting 31st October 2020 authority for APAR
9. Disposal of representation by the Within one month competent authority of the date of receipt of representation by the competent authority
10. Communication of the decision of Within 15 days of the competent authority on the finalization of representation by the APAR cell decision by competent authority
11. End of entire APAR process, after 31st Dec 2020 30 Item No. 15/ C-1 O.A. No. 3034/2024 which APAR will be finally taken on record
28. In this case, the guidelines laying down timelines for Recording of Annual Performance Assessment Report (APAR) for the year 2019-2020 issued by DoP & T have been violated by the applicant, Reporting Officer, the Reviewing and Accepting Officer. The Reporting Officer has recorded his observation in the APAR on 06.10.2020. As per revised schedule prescribed for writing of APAR for the year 2019-20, the Reporting Officer needs to comply with APAR by 31.07.2020. The Reviewing Authority needs to complete the APAR by 31.08.2020. Appraisal by Accepting Authority, wherever provided, needs to be completed by 30.09.2020. The disclosure of APAR to the officer reported upon where there is no Accepting Authority needs to be completed by 10.10.2020.
29. In this case, the applicant has submitted his appraisal on 29.08.2020, whereas, the date of submission of his appraisal in the revised schedule was fixed as 30.06.2020. The Reporting Officer has recorded his observation in APAR on 06.10.2020 against the revised dated fixed on 31.07.2020. The Reviewing/Accepting Authority has recorded his observation with numerical grading in APAR on 30.12.2020 i.e. against the revised stipulated date i.e. 10.10.2020. It is seen neither the applicant nor the Reporting Authority and Accepting Authorities have adhere to the timeline regarding APAR of the 31 Item No. 15/ C-1 O.A. No. 3034/2024 applicant as per revised schedule given by DoP & T vide order dated 30.03.2020 for the year 2019-2020 for completion of APAR and in unison defeating the very purpose of following the prescribed timelines.
30. Further, for the APAR period (01.11.2019 to 31.03.2020) there is major difference of opinion between Reporting Officer and Reviewing/Accepting Authority. The Reviewing/Accepting Authority has considerably downgraded the grading of the applicant, however, he did not record any substantial and cogent reasons for bringing down the grading and recording negative remarks about the officer in his APAR. In view of unsubstantiated remarks which are without logical reasoning, the remarks given by the Reviewing/Accepting Authority in the APAR of the officer in the year 2019-20 (for the period from 01.04.2019 to 31.10.2019 and from 01.11.2019 to 31.03.2020) cannot be allowed to remain as a part of the APAR.
31. In view of the above position, the present OA is allowed with the following directions:-
i. Remarks of Reviewing and Accepting Authority in the APAR for the period from 01.04.2019 to 31.10.2019 which has been reviewed/accepted on 31.12.2020 and also for the period from 01.11.2019 to 31.03.2020 which has been 32 Item No. 15/ C-1 O.A. No. 3034/2024 reviewed/accepted on 30.12.2020 are quashed and set aside.
ii. The respondents are directed to expunge the adverse remarks mentioned in the said APAR within a period of within 06 weeks from the receipt of certified copy of this Order and convey the decision to the applicant within above time period.
iii. Thereafter, the Competent Authority amongst the respondents shall re-consider/re-assess the applicant's case in accordance with the relevant rules, regulation and instructions issued from time to time ignoring the APAR for year 2019- 2020 (for the period from 01.04.2019 to 31.10.2019 and from 01.11.2019 to 31.03.2020) within a period of 08 weeks.
iv. No order to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/neetu/