Central Administrative Tribunal - Delhi
Rajpal Sharma vs M/O Finance on 17 August, 2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.454/2015
Reserved on: 25.07.2016
Pronounced on:17.08.2016
Hon'ble Dr. B.K. Sinha, Member (A)
Sh. Rajpal Sharma
S/o Sh. Laxmi Narayan Sharma,
R/o Commissioner's Bungalow,
Central Excise Colony,
Shahyadri Nagar, New CIDCO,
Nasik - 422009 (Maharashtra)
Presently posted as:
Commissioner,
Central Excise, Customs & Service Tax,
Nasik-II,
Kendriya Rajaswa Bhawan,
Gadkari Chowk, Old Agra Road,
Nasik - 422 002. ...Applicant.
(By Advocate: Sh. R.A. Sharma)
Versus
1. Union of India through
Secretary (Revenue)
Department of Revenue,
Ministry of Finance, North Block,
New Delhi-110 011.
2. Chairman,
Central Board of Excise & Customs,
Department of Revenue, Min. of Finance,
Govt. of India, North Block,
New Delhi - 110 001.
3. Sh. S.D. Majumdar,
The then Zonal Member (now retired),
Central Board of Excise & Customs,
Deptt. of Revenue, Min. of Finance,
Govt. of India.
Presently resident of:
G-1369, 3rd Floor,
Chitranjan Park,
New Delhi - 110 019. ...Respondents
(By Advocate: Sh. Sunil Ahuja)
2
ORDER
The instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 involved upgradation of APAR of the applicant for the period 2009-10.
2. The case of the applicant, in very brief, is that he was posted as Commissioner, Central Excise, Customs & Service Tax for a period of nine months from 18.06.2009 to 31.03.2010 during which period one Ajit Kumar, Chief Commissioner was reporting officer while S.D. Majumdar (respondent no.3) was the reviewing officer. Under the APAR Rules, it is mandatory to provide copies of the APAR recorded to the officer being reported upon. When no APAR was communicated to the applicant, he requested the Joint Secretary (Admn.), CBEC and received the same on 09.03.2012.
3. The main grievance of the applicant is that while the reporting officer had recorded an overall grading as 7.76 (Very Good) on a scale of 1:10, they had been downgraded to 5 (Good) by the reviewing officer.
4. The applicant has used the following arguments in support of his claim e.g. (i) copy of APAR in question was never provided to him though it was mandatorily required to be communicated to the officer reported upon; (ii) the 3 reviewing officer had recorded his remarks on 25.11.2011 after the stipulated period i.e. 30st June,.2010, therefore, in terms of the important notice to Schedule for preparation of Confidential Reports appended to OM dated 16.02.2009, he became incompetent to record the APAR in question; (iii) the statistical supplement indicates achievement on all fronts excessive to the target set but the reviewing officer has mechanically given 5 to the applicant on every count which indicates lack of application of mind; (iv) the applicant submits that he had never been issued any guidance or warning pointing out his drawbacks and suggesting ways & means for improvement of his conduct for the same in absence of which the entire process gets vitiated; (v) The applicant further alleges mala fide against the respondent no.3 for purely personal reasons and that is why he has been personally impleaded as party respondent but he has not cared to file any reply rebutting or accepting the averments of the applicant; (vi) The applicant submitted a representation to Referral Board on 20.03.2012 which was disposed of in the meeting of the Referral Board held on 15.01.2014 after a delay of 22 months which is against the GOI DP&AR OM dated 13.02.2014 which provides that all such representations should be decided within three months from the date of their submission. (vii) The applicant further submits that as per DOP&T OM dated 14.05.2009, the 4 period for deciding the representation is provided as 30 days from the date of receipt of such representation. The Referral Board disposed of the representation of the applicant by upgrading the overall performance from 5 [recording by the reviewing officer] to 6 but did not restore it to 7.76 [recorded by the reporting officer]; (viii) The proceedings of the Referral Board has also been invalidated on account of inordinate delay of 22 months against the provisions of DOP&T OM dated 14.05.2009.
5. The applicant has placed reliance on the following decisions of various Courts:-
(i) Dev Dutt Vs. Union of India & Ors. [2008 (8) SCC 725];
(ii) State of U.P. Vs. Yamuna Shankar Misra & Anr.[1997 (4) SCC 7];
(iii) S. Ramachandra Raju Vs. State of Orissa [Civil Appeal No.5815 of 1994 decided by Hon'ble Supreme Court on 31.08.1994];
(iv) S.R. Julka Vs. Union of India & Ors. decided by Chandigarh Bench of this Tribunal[1988 (6) ATC 18];
(v) Dr. Jeetesh Nagori Vs. Union of India & Ors. [OA No.227 of 2013 decided by the Ahmedabad Bench of this Tribunal on 31.12.2013].
6. The applicant has prayed for the following relief(s) in support of the claim:-
(a) Quash and set aside decision of the Referral Board taken in its meeting held on 15.01.2014 & conveyed vide letter dated 5 13.02.2014 [Annexure A-1 (Colly)] to the extent it did not upgrade the overall numerical grading of 5 given by the reviewing officer to the overall numerical grading of 7.76 given by the reporting officer in the applicant's APAR of 2009-
2010.
(b) (i) An order/declaration may be issued that the downgraded numerical grading '5' given by the reviewing authority in each attribute of para no. 5,6 & 7 of Section-III, his observation in Para No.2 of section IV and overall grade of 5 (Good) given in para 5 of Section IV of the applicant's APAR for the period 2009-10 shall be treated as Expunged/Non- est/Invalid and shall be ignored for all purposes.
(ii) An order/declaration may be issued that the downgraded numerical grading of '5' given by the reviewing authority in each attribute of column 5, 6 & 7 of Section-III and overall grade of 5 (Good) given in Sl. No. 5 of Section IV of the applicant's APAR for the period 2009-10 shall stand upgraded to the level of grading given by the reporting officer in each attribute of Col. 5, 6 & 7 of Section III and to overall grading of 7.76 (Very Good) given by the reporting officer in Col. 5 of Section IV of the above APAR.
(c) This Hon'ble Tribunal may hold that review of applicant's APAR of 2009-10 by the reviewing officer being beyond the cut-off dates stipulated in the guidelines issued by the Central Board of Excise & Customs, the same cannot be sustained and as a result thereof, be pleased to declare it as non-est/invalid.
(d) A declaration that the applicant shall be granted all consequential benefits of service arising due to the upgrading 6 of assessment of applicant's APAR as prayed for in sub- clause (b) (ii) above and allowed by this Hon'ble Tribunal.
(e) Pass any other order or direction as deemed fit and proper in the facts and circumstances of the case in favour of the applicant.
(f) Allow costs in favour of the applicant and against the respondents.
7. Learned counsel for the respondents while admitting the factual matrix of the case submitted that the range of Very Good is 6 to 8. The applicant had been originally assessed as Very Good (7.76) by the reporting officer but was downgraded to 5 (Good) by the reviewing officer. However, the Referral Board restored it to 6. Therefore, the applicant is entitled to consideration of his APAR as Very Good. The second point submitted by the learned counsel for the respondents was that if the (a) part of the prayer of the applicant were to be allowed, the decision of the Referral Board dated 15.01.2014 would stand quashed thereby restoring the APAR to its original position i.e. 5 given by the reviewing officer. Therefore, this cannot be allowed and the instant OA deserves to be dismissed.
8. Learned counsel for the applicant during the course of oral submissions contended that the applicant has also asked for in prayer (b) quashing of the downgraded APAR 7 recorded by the reviewing officer which would restore the remarks/grading recorded of the reporting officer.
9. I have carefully gone through the pleadings of the rival parties, as also the documents so adduced and law citations relied upon. I have also patiently heard the arguments advanced by the respective counsel of the parties on the basis of which the following issues clearly emerge for consideration:-
(1) What is the purpose of recording of APARs;
(2) Whether the APAR gets vitiated due to late recording by the respondent no.3 i.e. reviewing officer?
(3) Whether non-communication of APAR to the applicant and delayed consideration by the Referral Board serves to vitiate on APAR?
(4) What relief, if any, could be granted to the applicant?
10. Insofar as first of the issues is concerned, we begin our examination as to how APARs are written; what is the purpose of recording of ACRs/APARs and how the judicial pronouncements help to develop the subject. This issue has been examined in depth by Ahmedabad Bench of this Tribunal in A.P. Srivastava versus Union of India & Ors. 8 [OA No. 673/2004 decided on 09.01.2007] and by the Principal Bench of this Tribunal in Gunjan Prasad versus Govt. of India [OA No. 1233/2014 decided on 28.04.2015], Devendra Swaroop Saxena Vs. Union of India & Ors. [OA No.4258/2013 decided on 19.12.2014]. The controversy in these cases had gone into the purpose of recording ACRs on the basis of various decisions of Hon'ble High Courts and Tribunal. For the sake of convenience, relevant portion of the decision in Gunjan Prasad versus Govt. of India (supra) is being extracted herein below:-
"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 9 opportunity an individual employee strives to improve excellence and thereby efficiency of administration would be augmented.
(ii) The object of writing confidential reports is two-fold i.e., to given an opportunity to the officer concerned to remove the deficiencies, to improve his performance and to realize his potential and secondly to improve the quality & efficiency of the administration.
(iii) The object of communicating adverse ACR to the officer concerned is to enable him to make amends, to reform, to discipline himself and show improvement towards efficiency, excellence in public administration.
(iv) One of the uses of ACR is to grade him in various categories like outstanding, very good and satisfactory and average etc.
(v) Purpose of adverse entries is to be forewarn an employee to mend his ways and improve his performance.
(vi) The ACRs must be recorded at two levels.
(vii) The ACRs must be recorded objectively and after a careful consideration of all the materials.
It should not be a reflection of personal whims or fancies or prejudices, likes of dislikes of a superior.
(viii)The Apex Court in Nambudiri's case after '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. 10
(xi) The disposal of the representation must be made in a quasi judicial manner by a reasons order on due application of mind".
11. From the above, it does appear that the purpose of recording APARs is to assess the person's ability and to help him to rise to his level of ability. This issue is accordingly answered.
12. Insofar as the second of the issues is concerned, I take note of the OM dated 14.05.2009 which, inter alia, provides as under:-
"(i) The existing nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR).
(ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing officer and the Accepting Authority wherever such system is in vogue. Where Government servant has only one supervisory level above him, as in the case of personal staff attached to officer, such communication shall be made after the reporting officer has completed the performance assessment. "
I further take note of the OM dated 16.02.2009 and of the Chart annexed therewith dealing with the subject of timely preparation and proper maintenance of ACRs which, inter alia, provides as under:-
"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 11 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."
The Chart annexed with the above OM is also very significant and speaks for itself. Therefore, the Chart is also reproduced as under:-
Time Schedule for preparation of Confidential Reports Sl. Nature of action Date by which to be No. completed 1 Distribution of blank CR forms to all 31st March concerned (i.e. to officer to be reported upon (This may be where self-appraisal has to be given and to completed even a Reporting Officers where self-appraisal is week earlier) not to be given) 12 2 Submission of self-appraisal to Reporting 15th April Officer by officer to be reported upon (where applicable) 3 Submission of report by Reporting Officer to Reviewing Officer.
-Where self-appraisal by officer reported 7th May upon is prescribed
-Where self-appraisal by officer reported 21st April upon is not prescribed
-Where officer reported upon is himself a 22nd May reporting officer for subordinates under him.
4 Report to be completed by Reviewing Officer *23rd May where the
and sent to Administration or CR Section/ due date for the
Cell reporting officer is 7th
May.
*7th May where the
due date for the
reporting officer is 21st
April
*5th June where the
due date for the
reporting officer is 22nd
May
Important notice:
(i) The Reporting officer is requested to complete the
ACRs as per the schedule above. The Reporting officer shall have no right to enter any remarks in the CRs after 30th June following the annual reporting period.
(ii) Reviewing Officer is also requested to complete the review of the ACRs as per the schedule above. The Reviewing Officer shall have no right to enter any remarks in the CRs after 31st August following the annual reporting period.
13. From perusal of clause (ii) of the above Important Notice, it is abundantly clear that the reviewing officer has forfeited his right to record the APAR of the applicant as he has recorded the same only on 25.11.2011 i.e. beyond the stipulated time of 31st August of the year. Therefore, the remarks recorded by the reviewing officer do not have the force of law on merit. The Issue No.2 is accordingly answered.
13
14. Insofar as the other issues are concerned, once even the remarks are found to be untenable, I find no purpose in deciding the remaining issues which I left open but for the issue as to what relief could be provided to the applicant. I would very much agree with the learned counsel for the respondents that the applicant was entitled to consideration even with the present APAR. However, since principle of law was involved in this case, it has been necessary to adjudicate and pass appropriate orders. I also make it plain that the second prayer of the applicant would amount to giving directives to the respondents to record the APAR in a particular manner and not any other for which this Tribunal is not competent. Hence, I purposely desist from issuing any direction to that effect.
15. In conclusion, I simply say that remarks of the reviewing officer which had been recorded after the due date i.e. 31st August are untenable in the eyes of law as the reviewing officer has forfeited his right to record the remarks in terms of OM dated 14.05.2009. Therefore, the remarks of the reviewing officer are hereby quashed. The instant OA is accordingly disposed of in terms of the above direction leaving the parties to bear their own costs.
(Dr. B.K. Sinha) Member (A) /AhujA/