Central Administrative Tribunal - Ahmedabad
Mohit Agrawal vs Central Board Of Indirect Taxes A& ... on 13 December, 2024
Central Administrative Tribunal
Ahmedabad Bench,
Ahmedabad
O.A. No. 387 of 2022
Orders reserved on : 04.10.2024
Orders pronounced on : 13.12.2024
Hon'ble Mr. Jayesh V. Bhairavia, Member (J)
Hon'ble Shri Hukum Singh Meena, Member (A)
Mohit Agrawal,
Son of Shri Mukesh Mohan Agrawal,
Additional Commissioner,
Office of Principal Commissioner of Customs,
Ahmedabad, First Floor,
Customs House, Near All India Radio,
Income Tax Circle, Navrangpura,
Ahmedabad-380009.
Resident of :
601, B Block, Aaryavrat Skies,
Nehru Nagar, Ambawadi, Behind Bikanerwala Sweets,
Ahmedabad-380015. Gujarat
e-Mail : [email protected] .
Mobile:7600804658..
...Applicant
(By Advocate: Shri Tushar Mohanty)
VERSUS
1. UNION OF INDIA through
The Secretary,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi-110001.
2. The Chairperson,
Central Board of Indirect Taxes and Customs,
Department of Revenue,
Ministry of Finance,
North Block,
New Delhi-110001.
2 OA No.387 of 2022
3. Ms. Seema Arora,
Reviewing Authority and
Director General (Audit),
Central Board of Indirect Taxes and Customs.
Department of Revenue, Ministry of Finance,
North Block, New Delhi-110001.
...Respondents
(By Advocate: Shri H.D. Shukla)
ORDER
Hon'ble Mr. Jayesh V. Bhairavia, Member (J):
The applicant during the period from 05.11.2020 to 22.3.2021 was posted as Additional Commissioner, Central Goods and Services Tax, Ahmedabad South, Gujarat. In the Annual Performance Appraisal Report (hereinafter referred to as 'APAR') for the period, i.e. 05.11.2020 to 22.3.2021, the Reporting Authority had given grading of '9.17' to him. However, the Reviewing Authority had downgraded the said grading of '9.17' to '7.44' with certain adverse comments. Therefore, being aggrieved, the applicant had filed an online representation dated 26.11.2021 before the competent authority. The same had been considered by the APAR Referral Board which was partly allowed vide order dated 16.6.2022 (Annexure A/1 refer). Although the said APAR Referral Board had upgraded the overall grading of the applicant from 'Very Good' to 'Outstanding' i.e., from grading '7.44' to '8.0', however, the some of the adverse remarks recorded by the Reviewing Authority in the said APAR of the applicant had not been expunged. Therefore, being aggrieved with the said order dated 16.6.2022 of the APAR Referral Board, the applicant has filed the instant OA under Section 19 of the AT Act, 1985, seeking the seeking the following reliefs:-
"8.1. to allow the present Application;3 OA No.387 of 2022
8.2. to quash and set aside the Minutes of the Referral Board dated 16.06.2022 [Annexure: A-1], to the extent it is detrimental to the Applicant, as being bad in law;
8.3. to upgrade the Grading given by the Reviewing Authority in impugned Annual Performance Appraisal Report of the Applicant for the Period 05.11.2020 to 31.03.2021 [Annexure : A-2] from the upgraded Mark of 8 to 9.17;
8.4. to expunge the Adverse Remarks in the impugned Annual Performance Appraisal Report of the Applicant for the Period 05.11.2020 to 31.03.2021 [Annexure :A-2] that has not been expunged by the Referral Board, which is as follows :
"2. The officer has shown good work output in the Commissionerate and his Work competency is satisfactory.
However he needs to work on his personal attributes especially with regard to office discipline, ethics and moral courage. Subordinates too need to be treated with respect and dignity so as to maintain office protocol.
xxxxxxxxxx.
3. .. He has good working knowledge of laws and procedure which he must try and put to greater public service.";
8.5. to issue any such and further orders/directions this Hon'ble Tribunal deems fit and proper in the circumstances of the case; and 8.6. to allow exemplary cost of the Application to the Applicant."
2. Shri T.R. Mohanty, learned counsel for the applicant in support of the prayer sought in the instant OA mainly submitted as under:-
2.1 By referring and relying upon Annexures A/4, A/5, A/6, A/7 and A/8 of the OA, the learned counsel for the applicant submits that the applicant has always been an 'Outstanding' officer as is evident from the overall grading given to the applicant in his following APARs:-4 OA No.387 of 2022
Period Grading by the Grading by
Reporting Officer Reviewing Officer
01.04.2020 to 9.21 9.21
04.11.2020
06.08.2019 to 9.87 9.66
31.03.2020
01.04.2019 to 10 10
05.08.2019
01.04.2018 to 10 9.87
31.03.2019
01.04.2017 to 10 9.30
31.03.2018
2.2 Learned counsel has further drawn our attention to the comments of the Reporting Officers as well as Reviewing Officers in his last five years of APARs, which is produced in a tabulated as under:
Sl. Year/ Comments of the Reporting Comments of the Reviewing No. Period Officer Authority
1. 2017- The officer has got outstanding Shri Mohit Agarwal is a sincere, 2018 knowledge of Administrative dedicated, hardworking officer.
work and vigilance matter. He is He is very meticulous in his work. capable of handling any type of He has very good knowledge of work efficiently and smoothly. laws and procedures. He has sharp analytical capabilities. He is able solutions. His performance has leader of his team. He has sympathetic attitude towards weaker sections of the society.
2. 2018- The officer has got all the Shri Mohit Agrawal is a very 2019 knowledge and skill required for hardworking and intelligent smooth running of any office. He officer. He has handled the is always well prepared and responsibilities of Audit informed about any work Commissionerate as well as that entrusted to him. Always eager to of Ahmadabad South with great take initiatives on behalf of ease and competence. He has a department and ready to reduce sharp analytical mind and has the pendency. He is very hard suggested solutions to intricate working and intelligent officer. issues with proper analysis and As stated by officer he has along sense of proportion. He has a with audit work handled result oriented approach. With preventive work of South very good knowledge of laws and Commissionerate very procedure, he has shown very efficiently. He is considerate and good results in every field of sympathetic. work, he has handled. He is a good leader of his team. Overall, his performance has been of very high order. He has sympathetic attitude towards weaker sections of the society.
3. 1.4.19 Shri Agarwal is exceptionally I agree with the remarks made by to disciplined and intelligent officer. the reporting officer. 5.8.19 He is capable of detail analysis of Shri Mohit Agrawal has carried any issue and can find practical out his responsibilities in a solutions of any problem. He competent manner. He is commands great respects from enthusiastic and is always willing his juniors and marshal their to take responsibility. human resources to accomplished He has very good analytical the task. I never found him abilities and is able to find wanting in taking decisions and solutions to intricate problems in initiatives, and solving problem a balanced manner. He is a good at his own level. He is an leader of his team. He is hard enthusiastic officer who is always working and sincere. His willing to deliver his best. The performance has been of high officer is very thorough in his order. He has sympathetic attitude knowledge of law and towards weaker sections of 5 OA No.387 of 2022 procedures, and effectively society.
conveys all his ideas and communication skills in drafting.
In the area of administration, he was able to handle all issues efficiently. He was always able to carry both the stake holders as well as the team of officers along with him in achieving the objectives of work. He has a very positive view towards weaker sections, and he is ever willing to shoulder additional responsibilities. The officer deserves all encouragement. He is an asset to the department.
4. 6.08.19 He is very articulate and I agree with the remarks made by To explained his ideas and opinions the reporting officer. Shri Mohit 31.3.20 clearly leaving no room for Agrawal has handled the miscommunication. responsibilities given to him with He often found new and competence and dedication. He is innovative solutions to a full of energy and initiative. His problem. He is fair and treat technical knowledge about laws every officer equally and and procedures is also very good. respectfully He maintained a He has the ability to analyze the culture of transparency and intricate problems and is able to knowledge sharing across all suggest solutions with due care. levels in the department. He has a result oriented approach and is a good leader of his team.
Overall, his performance has been of high standard. He has sympathetic attitude towards weaker sections of the society.
2.3 Learned counsel for the applicant submitted that for the period from 1.4.2020 to 4.11.2020, by recording the pen picture/comments as below, the Reporting Authority had given grading '9.21' and the Reviewing Authority by assigning his reasons and comments had agreed with the grading given by the Reporting Authority and had maintained grading of '9.21' while reviewing the APAR for the said period. The comments of the Reporting and Reviewing Authorities are as under:-
Sl. No. Year/ Comments of the Comments of the Reviewing Authority Perio Reporting Officer d 1.4.20 The officer is Shri Mohit Agrawal has worked as To knowledgeable and Additional Commissioner in Ahmedabad diligent and has always South CGST Commissionerate during the 4.11.20 been found ready to period under review. He has handled assume responsibilities. different responsibilities in the His attitude towards Commissionerate ranging from preventive weaker sections has wing to Legal and Review, Technical always been very branch as well as dedicated legal cell for sympathetic. the whole state. He has ensured that the work in all these diverse sections is carried out as per plan and nothing is ignored.
Notable amongst his achievements is the high disposal of long pending applications for Advance Rulings and that of SVLDRS applications. His achievement in disposal of pending adjudications is also noteworthy.
Overall, his performance is of high order.
He is a good leader of his team. He has sympathetic attitude towards weaker sections of society.
6 OA No.387 of 20222.4 Further it is submitted that for the remaining period of the year 2020-21, i.e., 05.11.2020 to 31.03.2021, the Reporting Authority by recording his pen picture/comments as stated in para 9 of Section III of said APAR had given overall grading of '9.17'.
However, the Reviewing Authority by recording difference of opinion in para 2 of Section IV and by recording her pen picture/comments in para 3 of the Section IV of the said APAR downgraded the overall grading to that of '7.44' (Annexures A/2 and A/4 refer).
The relevant pen picture of the Reporting Authority in and pen picture/comments of the Reviewing Authority for the period from 5.11.2020 and 31.3.2021 read as under:-
Sl. Year/ Comments of the Comments of the Reviewing Authority No Period Reporting . Officer
1. 05.11.2020 The officer is 2. The officer has shown good work output in To 31.03.2021 knowledge and the Commissionerate and his work competency hardworking. He is satisfactory.
(impugned has always been
in the ready to assume However he needs to work on his personal
instant OA)
responsibilities. attributes especially with regard to office
His attitude discipline, ethics and moral courage.
towards weaker Subordinates too need to be treated with respect
sections is positive and dignity so as to maintain office protocol.
and sympathetic.
He has also aired his grievances regarding
leave by his Commissioner and pursuit of law
course on social media in gross violation of office discipline.
3. An intelligent officer, with high sense of entitlement. He has good working knowledge of laws and procedure which he must try and put to greater public service.
2.5 Learned counsel for the applicant further drew our attention to the subsequent APAR for the period from 31.7.2021 to 31.4.2022 and submitted that the Reporting Authority had given overall grading '10' and the same grading has been agreed upon by the Reviewing Authority by recording the pen picture/comments. The same are as follows:-
7 OA No.387 of 2022Sl. Year/ Comments of the Reporting Comments of the No. Period Officer Reviewing Authority 1 31.07.2021 Mohit Agrawal is a very bright and 3. He is a very meticulous, To 31.04.2022 diligent officer. He possesses a sound sincere and efficient officer.
knowledge of law and procedure and He has excellent knowledge uses it in a very fair and balanced about Customs Laws and manner He is clear cut in his thinking procedures. He is very and does not shy away from taking cordial with his seniors and decisions. He is a meticulous planner subordinate officers, and has and goes about his duties in a very satisfactorily handles all the systematic and organized manner. work assigned to him. These are the reasons he was able to accomplish such a high rate and quality of disposal during the reporting period.
Besides, he carries his team with him and keeps his team members motivated at all times. He shows understanding and empathy towards the weaker sections.
2.6 By referring the aforesaid comments of the Reporting and Reviewing Authorities and overall grading granted to the applicant in his APARs, learned counsel would submit that it is evident that in the previous period from 01.04.2020 to 04.11.2020, i.e., before the impugned period of APAR 05.11.2020 to 31.03.2021, the Reporting Officer of the Applicant was the same and the work being performed by the applicant was almost same in both the periods. The Sub-ordinates of the applicant were the same in these two periods.
Only the change in the Reviewing Authority who gave the adverse grading and remarks in the applicant's APAR of the aforesaid period.
2.7 Learned counsel for the applicant further submitted that during the last five years, there were three Reporting Officers of the applicant who had awarded the applicant Marks between '9.17' to '10' Marks. There were also three Reviewing Authorities, Except the lone period, where Respondent No. 3 had graded the applicant as 'Very Good', the other two Reviewing Authorities, had awarded grading of '9.21' and '10' Marks to the applicant.
8 OA No.387 of 20222.8 Learned counsel for the applicant submitted that during the period under review, the Applicant was posted as Additional Commissioner, Ahmedabad, South. The Applicant was the only regular Additional Commissioner posted in the Commissionerate on a regular basis against the sanctioned strength of three Joint Commissioner/ Additional Commissioners.
In addition, one more Joint Commissioner was posted in the Commissionerate holding the additional charge of Chief Commissioners' Office.
However, most of the Work of the Commissionerate was allocated to the applicant, which was ably and proficiently discharged by the applicant. Ahmedabad South Commissionerate was having one of the heaviest charge in entire Ahmedabad Zone on account of DLC Section and Centralized Establishment Structure of all Directorates, which was being single handedly discharged by the applicant in addition to Legal Section, O&M Section, Tax Recovery Cell, Vigilance & Confidential Section, CAT Matters, P&E Section, Audit Section, RTI Section, Hindi Rajbhasha, Supervision of Divisions I, VI, VII, VI, Parliamentary Questions, Technical Section, Statistics Section, Sevottam, SVLDRS Section and the like. DLC section was entrusted with the responsibility of closely monitoring the work related to petitions on behalf of Union of India for entire territorial jurisdiction of Gujarat including the State Government.
Apart from above, the Applicant was also holding the charge as Member, Advance Ruling Authority for entire Gujarat jurisdiction. As against the numerous charges entrusted to the applicant, the counterpart of the applicant as Joint Commissioner, on additional charge 9 OA No.387 of 2022 basis was holding charge of Preventive RRA, Land & Building, Administration, PRO/GSO, Systems, O&A and Supervision of Divisions II, II, IV, V: Despite shouldering the responsibility of heavy workload, all the official duties were discharged whole-heartedly, efficiently, effectively and timely by the applicant.
2.9 Learned counsel for the applicant further submitted that the applicant being primarily aggrieved against the unfounded and unsubstantiated comments made by the reviewing authority in his APAR for the period in question, he had submitted his representation before the Competent Authority to expunge the said comments and for upgradation of his overall grading at least to '9.17' which was given by the Reporting Officer based on his performance as pen picture in his APAR. Although the Referral Board while considering the representation of the applicant had upgraded the overall grading vide order dated 16.6.2022 from overall grading '7.44' given by Reviewing Authority to that of '8', however, had not expunged some of the comments/remarks recorded by the reviewing authority which are adverse in nature and will adversely affect his future career as well the moral in conducting his official duties. Hence, the applicant has no other option except to file the present OA.
3. Learned counsel further submitted that the Referral Board in its minutes dated 16.6.2022 has erroneously formed their opinion by relying upon the work output shown by the applicant in Preventive Section, Review Section and Adjudication out of miscellaneous charges under the impression that these charges were held by him for the entire impugned APAR's period i.e. from 5.11.2020 to 22.3.2021. In this regard, learned counsel would argue that the applicant has clearly brought on record and has also submitted in his APAR that the charges of the 10 OA No.387 of 2022 Preventive Section and Review Section were held him only during the period from 5.11.2020 to 14.12.2020. Further during the said short period, the applicant was on medical leave due to 'Corona Infection'. resulting in working days of 14 days. Therefore, the Referal Board had erroneously formed their opinion by considering this limited period performance in specific section as the performance for the entire period under review.
3.1 It is stated that the applicant was transferred on two occasions during the period under review, one on 11.12.2020 and other on 22.3.2021 and held different charges for which he has provided in his APAR, the nature of charges held by him and in this regard, the Referral Board had itself noted that appreciable work was done in the area of System and Computers, Legal and Prosecution, Administration & Technical, SVLDRS Scheme, Advance Ruling Authority, Vigilance and Confidence, Tax Recovery, Personnel and Establishment, Audit, Raj Sabha and RTI and such other areas. In fact, the applicant had submitted and provided the details of exceptional works done by him in paragraph 3 of Section II of the said APAR and the same has never been refuted either by Reviewing Authority or by the Referral Board. Therefore, the observations of the Referral Board that the applicant has not provided additional details of exceptional work done during the impugned period of APAR which have been overlooked by the Reviewing Officer and did not bring any material fact to substantiate his claim of not having been assessed by the Reviewing Officer. In this regard, it is further submitted that the performance shown by him during the period approximately 4 and a half months at a time, when the second wave of Covid-19 had struck the entire nation and not only the applicant, but even his entire family was infected with Covid-19 at the material time and there existed directions from the DoP&T for limiting the presence of officers of 50% 11 OA No.387 of 2022 attendance and staggered timing below the rank of Under Secretary. The performance shown by the applicant has not only been accepted by the Reporting Authority but even the Reviewing Authority who in Section IV of the said APAR had stated that 'the officer has shown good work output in the commessionerate and his work competency is satisfactory.' Therefore, the same is ought to have been considered by the Referral Board in true spirit while considering the representation of the applicant.
3.2 Learned counsel would submit that the applicant was holding the charge of the two Members of Advance Ruling authority for the entire State of Gujarat. This charge not only covering the territorial jurisdictional area of Ahmedabad CGST Zone, but also Vadodara CGST Zone too. Huge pendency of cases pending for more than two years was brought within the statutory limits while ensuring proper personal hearing and qualitative orders. Further it is stated that the applicant adopted the data from all the commissiononerate of the same zone, under the supervision of the same Reviewing Authority to compare the performance of all additional/Joint Commissioner posted in the same zone by filing the RTI Applications in respect of the charges held by him during the impugned period and the details therein has not been refuted by the respondents. To sustain the claim of the applicant that Reporting Authority had correctly assessed the performance of the applicant during the period in question and given overall grading of '9.17' grading based on his outstanding performance, learned counsel relied upon the following summarised data of the performance of all Joint Commissioners/ Additional Commissioners including the applicant herein working at Ahmedabad Zone during the period from 05.11.2020 to 22.03.2021:-
Sl. Name of the Commissionerate Number of Number of No. Officer of posting Orders issued adjudications (Shri.Ms.) during the pending for 12 OA No.387 of 2022 period from more than on 05.11.2020 to 31.03.2021.
22.03.2021
1. Mohit Agarwal Ahmedabad South 23 8* 2. R. K. Tiwari Ahmedabad South 5 11 3. Marut Tripathy Ahmedabad North 23 2 4. ML Meena Ahmedabad North 15 5
5. MS Chauhan Ahmedabad North 1 ----6. Manjunatha T. Bhavnagar 3 0 7. Mihir Rayaka Bhavnagar 3 0 8. Dev Prakash Gandhidham 13 0
Bamnavat 9. Milan Kumar Gandhidham 8 0 Singh 10. Abhilash Kumar Rajkot 15 0 Sreenivasan 11. Vishal Malani Rajkot 3 0 12. Ram Singh Rajkot 9 0 Shekhawat 13. MS Chauhan Gandhinagar 6 27 14. P.M. Rao Gandhinagar 21 19 * Pending on account of Hon 'ble High Court order and sudden premature transfer.
The Number of cases of prosecution including the existing ones and new ones being handled by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.2021, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 44 2. Ahmedabad North 17 3. Gandhinagar 15 4. Rajkot 17 5. Gandhidham 1 6. Bhavnagar 3 The Number of cases of litigation in Honourable High Court handled by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.2021, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 306 2. Ahmedabad North 119 3. Gandhinagar 60 4. Rajkot 70 5. Gandhidham 59 6. Bhavnagar 48 The Number of cases of litigation in Honourable High Court received by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.2021 for which legal counsel were nominated, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 72 2. Ahmedabad North 8 3. Gandhinagar 4 13 OA No.387 of 2022 4. Rajkot 5 5. Gandhidham 6 6. Bhavnagar 11 The Number of cases of litigation in Honourable High Court, in which Affidavit-in-reply were filed in Honourable Court by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.2021, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 17 2. Ahmedabad North 5 3. Gandhinagar 4 4. Rajkot 5 5. Gandhidham 1 6. Bhavnagar 2 The Number of cases of litigation in Honourable Supreme Court being handled by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.202, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 61 2. Ahmedabad North 20 3. Gandhinagar 22 4. Rajkot 10 5. Gandhidham 22 6. Bhavnagar 10 The Number of cases of litigation in Honourable Supreme Court received by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.2021 for which legal counsel were nominated, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 19 2. Ahmedabad North 6
3. Gandhinagar Nil 4. Rajkot 3 5. Gandhidham 9
6. Bhavnagar Nil The Number of cases of litigation in Honourable Supreme Court, Affidavit-in-reply were filed in Honourable Court by each Commissionerate under Ahmedabad, CGST Zone during the period from 05.11.2020 to 22.03.2021, are as under:
Sr. No. Name of Commissionerate Number of cases of Prosecution Handled 1. Ahmedabad South 7
2. Ahmedabad North Nil
3. Gandhinagar Nil
4. Rajkot Nil
5. Gandhidham Nil
6. Bhavnagar Nil 14 OA No.387 of 2022 3.3 By referring the aforesaid details and data, learned counsel for the applicant would vehemently argued that the Reviewing Authority had not followed the correct procedure to record pen picture/comments in the said APAR of the applicant. The very said contention raised before the Referral Board has not been considered in true spirit and applicant has been only given overall grading '8' instead of '9.17' and had not expunged the certain adverse remarks recorded by the Reviewing Authority which as such lacks material on record.
Therefore, it is submitted that the applicant is entitled for higher grading or at least '9.17' which was given by the Reporting Authority and expunction of the remarks of the Reviewing Authority recorded in the said APAR.
3.4 Learned counsel for the applicant submitted that in Section III of the said APAR, the Reporting Authority had categorically stated that he agreed with the responses related to the accomplishments of the work plan and unforeseen tasks as filled out in Section II. The work out shown by the applicant in Self Appraisal at Section II of the said APAR is a clear indicator about the performance of the applicant which in fact not matched by any other similarly placed officers in the entire Zone from the data as referred hereinabove. The work output of the applicant as such includes even the exceptional work done by him since it was the comprehensive achievements made by the applicant. Therefore, the applicant performance required to be assessed correctly and in true letter and spirit.
3.5 Learned counsel for the applicant further submitted that in para 2 of Section III of the said APAR, which indicates that the Reporting Authority must give their comments on the claim (if made) of exceptional contribution by the officer reported upon. In this regard, the Reporting Authority had recorded in his response nothing specific. However, this phrase of the Reporting Officer has to be read in conjunction with the response of the Reporting Authority at para 1 of Section III of the said APAR, but the same has been erroneously 15 OA No.387 of 2022 understood by the Referral Board as inadequate justification for recording such score of '9.17'. Learned counsel also submitted that it may be appreciated that the reporting Authority was supposed to make comments in respect of exceptional contribution by the applicant in the respective column of Section II. As such it is on record that the Reporting Authority by not commenting adversely upon the exceptional contribution of the applicant recorded in the APAR has already accepted the same especially when the Referral Board itself accepted that Reporting Authority had graded the applicant as Outstanding at the score of '9.17' .
3.6 Learned counsel would argue that it is worth noting that Para 4 of Section III of the said APAR, which states that : "Has the officer reported upon met with any significant failure in respect of his work? If yes, please furnished factual details."
In this regard, the Reporting Authority has clearly stated that "No" indicating that no significant failure was ever met by the applicant. Therefore, it is stated that the assessment and judgment of the Reporting Authority has been sought to be subsided by the Reviewing Authority irrespective of specific comments and the work output in Self Appraisal of Section II of the said APAR.
3.7 It is stated that the Reporting Authority being the Supervisory Authority of the applicant was in best position to judge the performance of the applicant, since he had day to day interaction with the applicant in respect of all charges and responsibilities held by him. Therefore, the Referral Board disregarded the fact that though the Reporting Authority had provided the specific comments, the Reviewing Authority had failed to provided even a single instances in order to justifying the recording of adverse comments in the said APAR of the applicant. Further the Referral Board had erroneously treated the remarks of the Reviewing Authority as administrative instructions/ advice. As such the remarks of Reviewing Authority which has not been expunged by the Referral Board will definitely affect the career prospects of the 16 OA No.387 of 2022 applicant as the same remarks in the said APAR will be considered by the competent authority while considering his case for further promotion.
3.8 Learned counsel for the applicant argued that the Referral Board failed to consider the factual position with regard to records, performance of the officer and the comments and grading of Reporting Officer and heavily relied upon the comments of Reviewing Officer. Though Referral Board took notice of the biased approach of Reviewing Officer, yet it has provided only the partial relief in the matter. That it has been stated that the past performance assessment reveal that there have been variations in the Grading given to the Applicant and that Applicant has submitted only partial past records with reference to his APAR Grading.
3.9 Learned counsel further submitted that the Referral Board had failed to notice that the comments by the Reviewing Authority is self contrary to his/her own earlier comments in Section IV of the said APAR and the facts on record. It is required to be noticed that APAR was required to be assessed in terms of the work output and achievements made in terms of factual records and not abstract false statement defying all logic and record. In this regard, learned counsel would submit that in para 2 of Section IV of the said APAR, the Reviewing Authority had stated that "The officer has shown good work output in the Commissionerate and his work competency is satisfactory. However he needs to work on his personal attributes especially with regard to office discipline, ethics and moral courage. Subordinates too need to be treated with respect and dignity so as to maintain office protocol. He has also aired his grievances regarding leave by his Commissioner and pursuit of law course on social media in gross violation of office discipline."
In this regard, learned counsel for the applicant therefore submitted that the Reviewing Authority as such not provided any instances or record to maintain the comments that the applicant was 17 OA No.387 of 2022 found lacking in discipline or moral courage. Further, neither any instance of ill treatment to subordinate(s) by the applicant nor any evidence in support of airing of grievance by the applicant on Social Media produced by the Reviewing Authority. Although the Referral Board in their Order dated 16.6.2022 by accepting the very said fact had expunged part remarks mentioned in para 2 of Section IV in the said APAR that 'He has also aired his grievances regarding leave by his Commissioner and pursuit of law course on social media in gross violation of office discipline.' However, the other remarks of the Reviewing Authority in the said para 2 of Section IV of the said APAR that "However he needs to work on his personal attributes especially with regard to office discipline, ethics and moral courage. Subordinates too need to be treated with respect and dignity so as to maintain office protocol." has not been expunged by the Referral Board in spite of the fact that the same is contrary to the material on record. Therefore, the decision of the Referral Board to maintain the said alleged adverse remarks by treating it as advisory in nature vide order dated 16.6.2022 is also bad in law and as such the said findings are contrary to the material on record.
3.10 Learned counsel for the applicant had also argued that the Referral Board has erroneously not expunged the remarks of the Reviewing Authority as recorded in para 3 of Section IV of the said APAR that the applicant is an intelligence and high sense of intelligence and good working and knowledge of laws and procedure which he must try and put to greater public service. The comments recorded by the Reviewing Authority in the said para, the applicant must try and put to greater public service, the same is also stated by the Reviewing Authority any contrary evidence on record. The findings of the Referral Board to the effect that such comments at para 3 were amounting to adequate reasons/justification for downgrading of the overall grading, which clearly established that the Referral Board erroneously carried away by the comments of Reviewing Authority without examining wording of such comments and factual record 18 OA No.387 of 2022 mentioned in the APAR. It is stated that the Referral Board had completely ignored that no evidence of high sense of entitlement or not putting the knowledge to greater public service was recorded by the Reviewing Authority. The said findings of the Referral Board is contrary to the self appraisal of the applicant in Section II of the said APAR and the appraisal of the Reporting Authority in Section 3 of the said APAR.
3.11 Learned counsel would also argue that the Reviewing Authority had provided self contradictory statement while responding to the representation of the applicant before the Referral Board to the effect that 'Further, the performance of the Officer in the period shows huge pendency in respect of Risky Tax Payer, TRAN-I Verification, Adjudication, Arrears in his supervisory role, the Officer has not been upto the marks.' 3.12 Again the Reviewing Authority in absence of any statistic of any instance of shortcoming has taken completely contradictory claim that there was huge pendency in respect of Risky Tax Payer, TRAN-I Verification, Adjudication, Arrears. In fact, it is matter of record that the work output shown by the applicant has been accepted by the Reporting Authority in Section III. Verification of 586 tax payers was supervised in coordination with Divisions which resulted in recovery to Rs.62.99 Cr. in respect of DGARM report, red flag report No.1 to 5. The reports were uploaded during the period under review. Therefore, the statement of the Reviewing Authority in her response before the Referral Board, is self-contradictory and also against the material on record.
3.13 Learned counsel for the applicant submitted that though the referral board had opined that such a drastic reduction in the grading by the Reviewing Officer from '9.17' awarded by the Reporting Authority to '7.44' is not required keeping in view mind the performance of the officer reported upon, but had failed to notice that any reduction in APAR from 9.17 was not warranted in terms of achievement endorsed 19 OA No.387 of 2022 by the Reporting Authority and not refuted by the Reviewing Authority.
3.14 Learned counsel by referring the various instructions issued by the DoP&T with regard to purposes for performance objectives and standard as well as an effective performance appraisal would submit that the Reviewing Authority failed to adhere to said instructions on the subject and erroneously downgraded the grading of the applicant as well erroneously recorded adverse comments against the applicant in his said APAR. In violation of the DoP&T's instructions, the Reviewing Authority recorded the adverse remarks/comments, therefore, the said remarks become non-est in the eyes of law and cannot be relied upon by anyone.
In support of the aforesaid contention, the applicant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of U.P. Jal Nigam and Others v. Prabhat Chandra Jain and Others, AIR 1996 SC 1661, and submitted that the issue and the ratio of said case squarely applies to the present case and the downgrading by the Reviewing Authority in the impugned APAR of the applicant for the period from 05.11.2020 to 31.03.2021 in such a situation cannot be sustained, especially when the Grading in the APAR of the applicant for the just preceding period from 01.04.2020 to 04.11.2020 was '9.21' and further when there was no warning or advice from the Reviewing Authority to the applicant regarding fall in his performance. The said judgment also gives the Hon'ble High Court the power to correct wrong/incorrect grading.
Further reliance has been placed on the judgment passed by the Hon'ble Supreme Court in Sukhdev Sinah v. Union of India and Others, reported in (2013) 9 SCC 566 (Annexure A-25 refer), wherein the Hon'ble Apex Court as such discusses on the entire gamut of Annual Performance Appraisal Reports and the principles enunciated therein and the same are squarely applicable to the present case.
20 OA No.387 of 20223.15 Reliance has also been placed on the Judgment/Order dated 27.11.2015 (Annexure A-15 refer) of the Principal Bench of this Tribunal in OA No. 1973/ 2014 in the case of Tushar Ranjan Mohanty v. Union of India and Others and it has been submitted that in the said judgment, the grading given by the Accepting Authority was quashed, as the Accepting Authority had never given any warning or advice to the applicant therein.
The said judgment of this Tribunal in the case of Tushar Ranjan Mohanty (supra) was challenged by the Union of India before the Hon'ble High Court of Delhi by filing W.P.(C) No.10816 of 2016, titled Union of India and Others v. Tushar Ranjan Mohanty and the Hon'ble High Court dismissed the said Writ Petition vide judgment/order dated 19.2.2019 (Annexure A-16 refer) while upholding the Judgment of this Tribunal.
3.16 Reliance has also been placed on the judgment dated 01.05.2019 (Annexure A-17 refer) of the Hon'ble High Court of Delhi in W.P. (C) No. 9544 of 2018 in the matter of Tushar Ranjan Mohanty V. Union of India, whereby the Hon'ble High Court of Delhi has upgraded the marks awarded by the Accepting Authority in an APAR of the applicant therein, as the same was not in consonance with the Marks given by the Reporting Officer and the Reviewing Authority. Therefore, the final grading of the Applicant in the impugned APAR for the period from 05.11.2020 to 31.03.2021 can be corrected and upgraded at least to the level given by the Reporting Officer which is '9.17'.
3.17 Further learned counsel placed reliance on the Order/Judgment dated 19.1.2010 (Annexure A-18 refer) of the Tribunal in OA No. 1386 of 2009, titled Anil Kumar Barnwal v. Union of India and Others. In this Judgment, it can be seen that the Adverse Remarks in the Annual Performance Appraisal Report of the Applicant therein was quashed.
3.18 Reliance has also been placed on the Order/Judgment dated 7.2.2013 (Annexure A-20 refer) of this Tribunal in OA No. 1362 of 21 OA No.387 of 2022 2012, titled Mrs. Rajnesh Jain v. Union of India and Others in which rejection of the representation against the Adverse Remarks in the APAR of the applicant therein was quashed on the grounds of bias, which is also the case herein.
The aforesaid Order/Judgment of this Tribunal in the case of Mrs. Rajnesh Jain (supra) was challenged before the Hon'ble High Court by the Department therein by way of W.P. (C) No. 5883 of 2013, titled UOI and Others v. Rajnesh Jain) and the Hon'ble Delhi High Court vide order/judgment dated 16.4.2014 (Annexure A-21refer) upheld the aforesaid Order/Judgment of this Tribunal.
3.19 Reliance has also been placed on the Judgment of the Hon'ble Supreme Court in Sri M.A. Rajasekhar v. The State of Karnataka & Another, reported in JT 1996 (7) 708 (Annexure A-23 refer) in which the Hon'ble Apex Court expunged the adverse remarks in the APAR of the petitioner therein.
3.20 Reliance has also been placed by the applicant on the Order/Judgment dated 1.5.2014 of the Principal Bench of the Tribunal in OA No. 2148 of 2013, titled Ravendra Mohan Dayal v. Union of India and Other (Annexure A-24 refer) and submitted that the case of the applicant is squarely covered by the same. Para 22 of the said Order/Judgment reads as under:-
"22. In totality of facts and circumstances of the case, we dispose of the instant OA with the following directives:-
(a) The remarks of the reviewing and accepting authorities made in the ACR of the applicant for the year 1998-99 are hereby found arbitrary and against the provision of law as the Government have not taken a decision on the representation of the applicant as warranted under Rule 10 of the Rules of 1970. Therefore, the said remarks are quashed.
(b) The upgradation made vide the impugned order obviously do not sustain in view of the facts mentioned earlier.
(c) The consequential benefits that may arise out of the above order may follow.
(d) There shall be no order as to costs."
22 OA No.387 of 20223.21 Learned counsel for the applicant to substantiate the claim of the applicant that the Reviewing Authority has not followed the instructions contained in various OMs issued by the DoP&T and erroneously downgraded the overall grading of the applicant and at the same time, the Referral Board had also maintained the remarks of the Reviewing Authority in absence of any supporting material and erroneously downgraded the overall grading from '9.17' to '8.0' although the said Referral Board agreed that comments of the Reviewing Authority are without any substantive material on record and upgraded the grading from '7.44' to '0.8' but as noted hereinabove, there is no basis for the Referral Board not to maintain the overall grading recorded/given by the Reporting Authority. In such factual matrix the appraisal of his performance and grading cannot allowed to be downgraded and jeopardized the better prospect of the applicant in his service career, the applicant has relied upon the following orders/judgments:-
(i) Order/Judgment dated 5.12.2013 of the Tribunal in OA No. 1386 of 2009, titled Anil Kumar Barnwal v. Union of India and Others;
(ii) Order/Judgment dated 14.1.2010 of this Tribunal in OA No. 274 of 2009, titled Arvind V. ICAR and Others;
(iii) Order/Judgment dated 7.2.2013 of this Tribunal in OA No. 1362 of 2012, title Mrs. Rajnesh Jain v. Union of India and Others which was upheld by the Hon'ble High Court of Delhi in W.P.(C) No. 5883 of 2013, titled UOI and Others v. Rajnesh Jain vide Order/Judgment dated 16.4.2014;
(iv) Judgment/Order dated 30.3.2011 of this Tribunal in OA No.3410 of 2010, titled Rohit Kumar Parmar V. Union of India and Another;
(v) Judgment of the Hon'ble Supreme Court in Sri M.A. Rajasekhar v. The State of Karnataka & Another, reported in JT 1996 (7) 708;
23 OA No.387 of 2022(vi) Order/Judgment dated 1.5.2014 of this Tribunal in OA No. 2148 of 2013, titled Ravendra Mohan Dayal v. Union of India and Other;
(vii) Judgment of the Hon'ble Supreme Court in Sukhdev Singh v.
Union of India and Others, reported in (2013) 9 SCC 566;
(viii) Judgment dated 22.8.2014 of the Hon'ble Gauhati High Court in W.P. No. 2052 of 2012, titled I.A. Khan v. Union of India and Others;
(ix) Judgment dated 13.5.2014 of the Hon'ble Supreme Court in Civil Appeal No. 283 of 2008, titled Union of India and Others v. Jai Prakash Gupta and Another;
(x) Judgment of the Hon'ble High Court of Rajasthan in Ashok Bhatnagar v. State or Rajasthan, reported in 2002 (2) WLC 479 : 2002 (5) WLN 372;
(xi) Order/ Judgment dated 27.11.2015 of this Tribunal in OA No. 1973 of 2014, titled Tushar Ranjan Mohanty v. Union of India and Others;
(xii) A.P. Srivastava v. Union of India and Others of this Tribunal in OA No. 673 of 2004 decided on 09.01.2007;
(xiii) Gunjan Prasad v. Govt, of India of this Tribunal in OA No. 1233 of 2014 decided on 28.04.2015;
(xiv) Devendra Swaroop Saxena v, Union of India & Others of this Tribunal in OA No.4258/2013 decided on 19.12.2014;
(xv) Dev Dutt Vs. Union of India & Others, 2008 (8) SCC 725;
(xvi) State of U.P. Vs. Yamuna Shankar Misra & Another, 1997 (4) SCC7;
(xvii) S. Ramachandra Raju v. State of Orissa [Civil Appeal No.5815 of 1994 decided by Hon'ble Supreme Court on 31.08.1994]; and (xviii) S.R. Julka v. Union of India & Others, decided by Chandigarh Bench of the Hon'ble Tribunal [1988 (6) ATC 18].
3.22 Learned counsel for the applicant on the strength of the relied upon judgments submitted that it is clearly provided that before 24 OA No.387 of 2022 downgrading the Marks of an employee or before recording Adverse Comments in APAR of any employee, several parameters have to be fulfilled. First of all targets have to set, continuous monitoring of the work of the employee has to be undertaken, and the employee has to be advised and, if required, warned that his performance is falling or not up to the mark. In the absence of the above, the adverse remarks recorded by the Reviewing Officer in the APAR in question are not sustainable in the eyes of law.
3.23 Learned counsel for the applicant would also placed reliance on the Instructions with regard to Memorandum of Services has to be maintained by the Reporting Authority and the same should be the sole basis for writing the Annual Reports as provided in Para. 174 (7) of P.&T. Manual, Vol. III, the relevant instructions in this regard are quoted below for ready reference:
"Merit as reflected in the confidential reports is generally recognized as the main criterion for deciding the cases of promotion to higher grades. It is, therefore, very important both in the interest of efficiency of the service and also of the officers that the reports are written with the greatest possible care so that the work conduct, character, and capabilities of the officers reported upon can be accurately judged from the recorded opinion. Officers recording remarks must realize the importance of these entries as their own competency will be judged partly from the confidential remarks they record about officers working under them. With a view to enabling them to make correct over-all assessment of the work and conduct of their subordinates, the reporting officers are required to maintain memorandum of services in respect of each officer employed under them. All instances of good and bad work coming to the notice of the reporting officer should be promptly noted in the memo. of services. Impression formed by the officer at the time of visits, inspections, interview etc. should also be included in that memorandum. This memorandum should not be reduced to a black book by recording instances of only adverse nature. Instances of good work should also be liberally recorded. The memoranda of service should, invariably, be consulted at the time of writing of annual reports. In case, the reporting officer is not the immediate superior of the officer to be reported upon, the immediate superior 52 should also maintain a memo. of services which should be consulted by the reporting officer at the time of writing the report. The memo. of services in respect of an officer should be a complete and continuous record of his service and accordingly, it should not be destroyed after the annual report has been written. The entries in the memo. of services should be based on facts and documentary evidence. The memo. of services making transfer, promotion or writing special reports. For writing the annual report, only those entries in the memo. which pertain to the 25 OA No.387 of 2022 year of the report should be taken into account. The entries in the memo. of services need not necessarily be communicated. As the memo. of services is the sole basis for writing the annual reports, the reporting officer at the time of submitting reports to the countersigning authorities, if any, should make a specific mention in the forwarding letters that memoranda of services have been maintained and consulted. With a view to checking up that these memoranda are being properly and regularly maintained, the countersigning authorities may call for them and check them up. The negligence on the part of the reporting officers in this regard should be duly noticed."
3.24 Learned counsel for the applicant would also argue that unfortunately, no Memorandum of Services has been maintained by the Reporting Authority for the concerned period from 05.11.2020 to 31.03.2021. Therefore, the comments of the Reviewing Authority by which the Applicant is aggrieved are nothing but Ipse Dixit on the part of the Reviewing Authority without any base or basis. The same has to be expunged. In this regard reliance has been placed on letter dated 09.04.1996 of the Department of Post, Ministry of Communications, Government of India regarding Maintenance of Memorandum of Services (Annexure A-28 refer). It can be seen from the said communication that the Cuttack Bench of this Tribunal has held that maintenance of Memorandum of Services is mandatory.
3.25 Learned counsel for the applicant would further argue that the Minutes of the Referral Board dated 16.06.2022 (Annexure: A-1), while being an extensively written Document, does not really disclose any reasons for rejection of the representation of the applicant inasmuch as expunction of the impugned Adverse Remarks are concerned.
3.26 It is submitted that it is well settled law that every action of the State or an instrumentality of the State must be informed by reason. Actions uninformed by reason may amount to being arbitrary and liable to be questioned by the Govt. employee before the competent Court/Tribunal. It is further stated that the action must be just, fair and reasonable. Fair play and natural justice are part of fair public administration; non-arbitrariness and absence of discrimination are hall marks for good governance under rule of law. However, the said settled legal proposition has not been maintained in the present case. In this 26 OA No.387 of 2022 regard, it is submitted that the comments of the Reviewing Authority is bad and non-est in law, being uninformed by reason. Therefore, the same is liable to be set aside. In this regard, learned counsel would also placed reliance on the decision of the Hon'ble Supreme Court in M.J. Sivani vs. State of Karnataka, reported in AIR 1995 SC 1770 : (1995) 6 SCC 289, wherein it has been held :
"31. It is settled law that every action of the State or an instrumentality of the State must be informed by reason. Actions uninformed by reason may amount to being arbitrary and liable to be questioned under Article 226 or Article 32 of the Constitution. The action must be just, fair and reasonable. Rejection of the license must be founded upon relevant grounds of public interest. Fair play and natural justice are part of fair public administration; non-arbitrariness and absence of discrimination are hall marks for good governance under rule of law. Therefore, when the State, its delegated authority or an instrumentality of the State or any person acts under a statutory rule or by administrative discretion, when its actions or orders visit the citizen with civil consequences, fairness and justness require that in an appropriate case, the affected citizens must have an opportunity to meet the case......."
3.27 Further, in Kumari Shrilekha Vidyarthi v. State of U.P., reported in AIR 1991 SC 537: (1991) 1 SCC 212, the Hon'ble Supreme Court has held :
"13. ...However, 'without assigning any cause' is not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India [1984] 3 SCR.676 that the expression 'without assigning any reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary."
3.28 The applicant also relies upon the judgment of the Hon'ble Supreme Court in Assistant Commissioner, Commercial Tax Department, Works Contract & Leaslng, Kota v. M/s Shukla & Brothers, reported in (2010) 4 SCC 785 wherein the Hon'ble Apex Court held:
27 OA No.387 of 2022"10. The Supreme Court in the case of S.N. Mukherjee v. Union of India [(1990) 4 SCC 594], while referring to the practice adopted and insistence placed by the Courts in United States, emphasized the importance of recording of reasons for decisions by the administrative authorities and tribunals. It said "administrative process will best be vindicated by clarity in its exercise". To enable the Courts to exercise the power of review in consonance with settled principles, the authorities are advised of the considerations underlining the action under review. This Court with approval stated: -
"the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained."
11. In exercise of the power of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastise. Thus, it will not be far from absolute principle of law that the Courts should record reasons for its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the Court whose order is impugned has adopted the correct legal approach. To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing.
12. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly; hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment. Now, we may refer to certain judgments of this Court as well as of the High Courts which have taken this view.
13. The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should 28 OA No.387 of 2022 meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders. In the case of Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India and Anr. [AIR 1976 SC 1785], the Supreme Court held as under:-
"6. .....If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of, natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."
14. In the case of Mc Dermott International Inc. V. Burm Standard Co. Ltd. and Ors, (2006) SLT 345, the Supreme Court clarified the rationality behind providing of reasons and stated the principle as follows:-
".... Reason is a ground or motive for a belief or a Course of action, statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded.
The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the Arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills' Arbitration in Re, proper adequate reasons Such reasons shall not only be intelligible but shall be a reason connected with the case which the Court can see is proper. Contradictory reasons are equal to lack of reasons.....
15. In Gurdial Singh Fijji v. State of Punjab [(1979) 2 SCC 368], while dealing with the matter of selection of candidates who could be under review, if not found Suitable otherwise, the Court explained the reasons being a link between. the materials on which certain conclusions are based and the actual conclusions and held, that where providing reasons for proposed supersession were essential, then it could not be held to be a valid reason that the concerned officer's record was not justify his selection was not contemplated not legal. In this context, the Court held - "Reasons" are the links between the materials on which certain conclusions are based and the actual conclusions. The Court accordingly held that the mandatory provisions of Regulation 5(5) were not complied with by 29 OA No.387 of 2022 the Selection Committee. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion. that the officer Concerned was found to be not suitable for inclusion in the Select List."
16. This principle has been extended to administrative actions on the premise that it applies with greater rigor to the judgments of the Courts. In State of Maharashtra v. Vithal Rao Pritirao Chawan [(1981) 4 SCC 129], while remanding the matter to the High Court for examination of certain issues raised, this Court observed:
"... It would be for the benefit of this Court that a speaking judgment is given".
3.29 Further reliance has been placed on the Hon'ble Supreme Court's judgment in Ravi Yashwant Bhoir v. District Collector, Raigad, reported in (2012) 4 SCC 407, in which the Hon'ble Apex Court has observed :
"RECORDING OF REASONS:
29. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Kumari Shrilekha Vidyarthi etc. vs. State of U.P. & Ors., AIR 1991 SC 537, this Court has observed as under:-
"Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you,"
This is what a man in power must remember always."
30. In L.I.C. of India & Anr, v. Consumer Education and Research. Centre & Ors., AIR 1995 SC 1811, this Court observed that the State or its instrumentality must not take any irrelevant or irrational. factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. M.L. Capoor & Ors., AIR 1974 SC 87; and Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors., AIR 1993 SC 935.
31. In State of West Bengal v. Atul. Krishna Shaw & Anr., AIR 1990 SC 2205, this Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review.
30 OA No.387 of 202232. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
33. In Krishna Swami v, Union of India & Ors., AIR 1993 SC 1407, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed:
"Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21."
34. This Court while deciding the issue in Sant Lal Gupta & Ors. V. Modern Co-operative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336, placing reliance on its various earlier judgments held as under:
"28. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its Conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless, Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded 31 OA No.387 of 2022 in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."
35. In Institute of Chartered Accountants of India v. LIK. Ratna & Ors., AIR 1987 SC 71, this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held:
"In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under S. 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a "finding". Moreover, the reasons contained in the report by the Disciplinary Committee for Its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding,"
36. The emphasis on recording reason is that if the decision reveals the 'inscrutable face of the sphinx, it can be its silence, render it. virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least Sufficient to indicate an application of๊ mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi- judicial performance."
By referring the aforesaid dicta laid down by the Hon'ble Apex Court, learned counsel would submit that in the case of the applicant the Reviewing Authority had not followed the same and as such the impugned remarks and comments of the Reviewing Authority are therefore not tenable. It is also submitted that Referral Board ought to have expunged the impugned adverse remarks as well but had failed to do so by treating the said impugned remarks as advisory in nature.
3.30 Grading and adverse comments recorded by the Reviewing Authority in the impugned APAR is bad in law, as the same was based 32 OA No.387 of 2022 on irrelevant considerations, as no Memorandum of Services was maintained in respect of the Applicant, as the same is in violation of Letter dated 09.04.1996 on the Department of Posts and Department of Personnel & Training O.M. No. 12/2/84-PP dated 17.12.1986.
3.31 Grading and adverse comments recorded by the Reviewing Authority in the impugned APAR suffer from the vice of arbitrariness, and is hit by the Wednesbury Principle.
3.32 Reliance has also been made to the observations of the Hon'ble High Court of Rajasthan in Ashok Bhatnagar vs. State c Rajasthan, reported in 2002 (2) WLC 479 : 2002 (5) WLN 372, which also covers the issue, as follows:
"9. The object of writing APAR is to make objective assessment of performance of an employee. The duties have been cast as per instructions issued and reproduced in Writ Petition. The duties have been cast on the Reporting Officer to be careful in consideration the norms prescribed and/or duties demanded from the reportee before recording his opinion, He should not form hasty opinions or arrive at conclusions based on insufficient data much less on hearsay. The Reporting Officer is not make objective assessment of his subordinate. He is supposed to give necessary advice, guidance and assistance to correct their. faults. The Adverse remarks are to be recorded in APAR only when the reportee persistently fails to show improvement. The Reviewing Officer is duty bound to consider if he personally knows the Work and conduct of the Officer. He is to exercise positive and independent judgment of the remarks of Reporting Officer under the detailed headings in the form of the report as well as on the overall assessment and express clearly his agreement or disagreement with those remarks. This is particularly necessary in regard to adverse remarks, if any, where the opinion of the higher officer shall be constructed as the correct assessment. The arbitrary, capricious and baseless remarks are to be avoided."
3.33 It is argued that the Reporting Officer of the applicant was Shri Sunil Kumar Singh and the Reviewing Officer was Mrs. Seema Arora [Respondent No. 3). The said APAR is the part of APAR for the period of approximately four and half months during the later part of the year 2020-21. For the APAR of the other part of the year 2020-21, for the period from 01.04.2020 to 04.11.2020, the Applicant has been graded by the same Reporting Officer, Shri Sunil Kumar Singh but the said APAR was reviewed by another Reviewing Officer, Shri Ajay Jain. During the majority period in the year 2020-21, the Applicant has been 33 OA No.387 of 2022 awarded an overall grade of 9.21 by both the Reporting Officer as well as Reviewing Officer. For the period from 01.04.2020 to 04.11.2020, the Reviewing Officer has mentioned the overall qualities of the Applicant in the relevant section as under:
"Shri Mohit Agrawal has worked as Additional Commissioner in Ahmedabad South CGST Commissionerate during the period under review. He has handled different responsibilities in the Commissionerate ranging from preventive wing to Legal and Review, Technical branch as well as dedicated legal cell for the whole state. He has ensured that the work in all these diverse sections is carried out as per plan and nothing is ignored. Notable amongst his achievements is the high disposal of long pending applications for Advance Rulings and that of SVLDRS applications. His achievement in disposal of pending adjudications is also noteworthy Overall, his performance is of high order. He is leader of his team. He has sympathetic attitude towards weaker sections of society."
3.34 Lastly, learned counsel for the applicant by referring to various grounds as noted hereinabove and mentioned in the OA and by relying upon the aforesaid judgments as well as those attached with the rejoinder, further submitted that the instant OA may be allowed in terms of the prayer made in the OA.
4. Per contra, learned counsel for the respondents mainly argued by referring to the averments made in the counter reply filed on behalf of the respondents that:
4.1 The applicant has preferred the present application to quash and set aside the Minutes of the Referral Board dated 16.06.2022 and further challenged the adverse comments and grading given by the reviewing authority in APAR of applicant for the aforesaid period. The applicant also prays that his numerical grading in APAR for the aforesaid period that has been upgraded from '7.44' to '8' be further upgraded to '9.17', grading as given by reporting officer. The Applicant also prayed for expunging all adverse remarks recorded by the Reviewing Authority in the APAR under review.34 OA No.387 of 2022
4.2 The applicant had submitted his representation dated 26.11.2021 against the grading & remarks given by the Reviewing Authority before the competent authority. In the impugned APAR, the Reporting officer was Shri Sunil Kumar Singh, Pr.
Commissioner (grading awarded '9.17') and Reviewing Officer was Smt. Seema Arora, Pr. Chief Commissioner (grading awarded '7.44').
4.3 The performance of Government is ultimately the sum total of the performances of the individuals through which it functions. Therefore, the Government has to know from time to time that how its constituent's function. This information is essential for proper Personnel Administration and Management. It is in the interest of every Government servant that he should know how well or otherwise, he is performing his job. Without this feedback information, it will be difficult for him to plan his career development in a systematic manner.
The system of APAR has two principal objectives. The first and foremost is to improve the performance or the subordinate in his present job.
The second objective is to assess the potentialities of the subordinate and prepare him through appropriate feedback and guidance for future possible opportunities in service.
4.4 The instructions F.No.21011/1/2005-Estt(A)(Pt-II) dated 14.05.2009 and 23.07.2009 issued by the DOPT and F.No.A.28011/3/2009-EC/Per dated 30.03.2010 (Annexure R3 colly.) issued by the CBIC are well established and have been practiced for several years. According to DOPT/CBIC's aforesaid instructions, any officer aggrieved with his or her APAR grading or remarks, is given an opportunity to represent his or her case before the competent authority as prescribed. This procedure has been laid down to ensure fairness, transparency, and justice.
35 OA No.387 of 2022Keeping in view the principles of natural justice the comment of the Reporting and Reviewing officers were also sought.
Accordingly, on receipt of representation of the applicant against the comments and remarks of the Reporting and Reviewing Authorities, the competent authority had constituted the Referral Board to decide the representation of aggrieved officer which consists of three very senior officers. The Referral Board in its meeting examines all available records, representation made by the aggrieved officer, comments by the Reporting and Reviewing officers and after careful consideration of all the relevant facts, the Referral Board passes a speaking order giving detailed reasoning for the decision arrived at.
4.5 The instructions & well-established procedure on the subject, comments of the Reporting and Reviewing officers were also called for in the electronic Annual Performance Appraisal Report (SPARROW) online system, on the said APAR representation dated 26.11.2021 of Applicant.
4.6 In terms of CBEC (now CBIC) instructions F.No. A-
28011/03/2009-SO(Per/EC) dated 29.09.2011 (ANNEXURE-R4) on the issue of APAR, representations against grading etc., a meeting of APAR Referral Board was held on 16.06.2022 wherein the Referral Board gave careful consideration to the representation made by applicant, comments of the Reporting and Reviewing officers and other facts available on records and after due deliberation of all the facts, the Referral Board unanimously passed a detailed speaking order. The fairness of the entire process can be judged by the fact that the Referral Board decided to upgrade the overall numerical grading given by the Reviewing officer to Applicant from '7.44' to '8.0'.
It is to be noted that the Referral Board upgraded the numerical grading from '7.44' to '8.0' resulting in assessing the performance of Applicant from 'Very Good' (i.e. below 8) to 36 OA No.387 of 2022 'Outstanding' category (8 and above) and it is also ordered to expunge following remarks recorded by the Reviewing Officer in Section IV, 2:
"He has also aired his grievances regarding leave by his Commissioner and pursuit of law course on social media in gross violation of office discipline".
4.7 Challenge has also been made to the Minutes of Referral Board meeting, held on 16.06.2022. In this regard, it is submitted that the Referral Board has been constituted as per well-established procedure by the CBIC to examine the APAR representation of applicant. The decision of the Referral Board not only fair as may please be noted that the Referral Board has not only upgraded the overall grading to 8 which is 'Outstanding' but has also expunged some of the remarks which appeared unwarranted or unfair to them. Thus, the present application of Applicant, to set aside the Minutes of Referral Board Meeting dated 16.06.2022, is devoid of any merits.
4.8 It is further submitted that the procedure followed for APAR writing of Applicant is no different from the procedure followed for the other officers. The applicant's performance has been assessed as per the prescribed procedure by the Reporting/ Reviewing officer who have more experience and insight to assess an individual officer.
4.9 In fact, the past performance assessment submitted by the Applicant itself reveals that there have been variations in the gradings given to the applicant by the Reporting/ Reviewing officers which is not unnatural. In fact, the applicant has submitted only partial past records with reference to his APAR gradings. In the year 2011-12, applicant had been given numerical grading of 8 which is the same as the present numerical grading upgraded by the Referral Board.
37 OA No.387 of 20224.10 It is submitted that it is a well-established principle of jurisprudence that no person can be a Judge in his own case. If the assertion made by the applicant is accepted then it will lead to complete breakdown of administrative discipline and render the well-established APAR writing procedure meaningless. As such the procedure has inbuilt mechanism of check and balances to safeguard the interest of the individual officer. In this regard, it is submitted that in order to ensure fairness and transparency, the process also includes provision for representation by an aggrieved officer to be examined at appropriately senior level. If the request made by the Applicant is accepted, it will lead to breakdown of Administrative machinery and discipline. This will also set a bad precedent and will have far reaching consequences for entire eco-system of APAR Management System.
4.11 The applicant's final grading has been decided by a Referral Board comprising of three highly experienced officers of very senior level and it's a unanimous decision. The Referral Board has passed a detailed speaking order and has also explained the rationale for arriving at their decision. They have upgraded the numerical grading of the Applicant to 'Outstanding' category.
4.12 Learned counsel for the respondents further submitted that reliance placed by the applicant on the aforesaid Orders/judgments are not relevant to the facts and circumstances of the present case and as such the same are not applicable herein.
4.13 Lastly, it is submitted that the fairness of the entire process is well established from the above submissions and, therefore, it is prayed that the present OA may be dismissed as being devoid of merits and consider imposition of exemplary cost upon the applicant.
38 OA No.387 of 20225. We have heard learned counsel for the parties at length and perused the material placed on record as well as the judgments on which reliance has been placed by the applicant.
6. Having regard to the facts and submissions of the learned counsel for the parties, it is evident that the Self Appraisal of the applicant in Section II of the APAR for the period from 5.11.2020 to 22.3.2021 was assessed and appraised by the immediate higher officer, i.e., the Reporting Authority and in Section III - Appraisal of the APAR, the said Reporting Authority had recorded his agreement with the responses related to accomplishment of the work plan and the unforeseen tasks as mentioned in Section II of the said APAR by the applicant.
7. It is also evident that the Reporting Authority, having regard to the Self Appraisal of the applicant, had assessed the 'work output' and had granted grading of numerical grading of '9' in respect for 'accomplishment of exceptional work/unforeseen tasks performed along with other work output, i.e. 'accomplishment of planned work', and 'quality of output as mentioned in para 5 of Section III
- Appraisal of the said APAR'.
It is noticed that after considering the assessment of work output, the assessment of personal attributes and assessment of functional competency, the Reporting Authority in para 9 of the Section III of the said APAR recorded his pen picture on the overall qualities of the applicant that 'The Officer is knowledge and hard working and he has always ready to assume responsibilities. His attitude towards weaker section is positive and sympathetic'.
Accordingly, the Reporting Authority had granted overall grade of '9.17' to the applicant in the said APAR.
7.1 However, as noted hereinabove, in Section IV of the said APAR, the Reviewing Authority did not agree with the assessment made by the Reporting Authority and in para 2 of Section IV while recording 39 OA No.387 of 2022 difference of opinion and reasons, the said Reviewing Authority has mentioned that:
"The officer has shown good work output in the Commissionerate and his work competency is satisfactory.
However, he needs to work on his personal attributes especially with regard to office discipline, ethics and moral courage. Subordinates too need to be treated with respect and dignity so as to maintain office protocol. He has also aired his grievances regarding leave by his Commissioner and pursuit of law course on social media in gross violation of office discipline."
Further, in Para 3 of Section IV of the impugned APAR which stipulates that the Reviewing Authority has pen picture and has to give comments on the overall qualities of the officer including in the area of strengths and lesser strength and his attitude towards weaker section. In this regard, the said Reviewing Authority recorded its comments in para 3 of Section IV of the APAR under question as under:
"An intelligent officer, with high sense of entitlement. He has good working knowledge of laws and procedure which he must try and put to greater public service."
7.2 It can be seen that though the Reviewing Authority while writing the pen picture in respect of the applicant's performance and his strength to the effect that 'he is an intelligent officer. However, the underlined remarks i.e., 'with high sense of entitlement' and '.....which he must try and put to greater public service' the said remarks has been objected by the applicant herein as the same are contrary to the material on record and the same are adverse in nature. In this regard, it is apt to mention that there is no rebuttal of the contentions of the applicant that:
(i) He was never given any signal adverse remarks during the entire aforesaid APAR period. No communication at any occasion was presented to him. He was not questioned for his discipline and moral courage. All 40 OA No.387 of 2022 files/noting/order/decisions were open for scrutiny for adjudging the standard of moral courage. The Reviewing Authority had not cited even a single instance of such mis- founded allegation.
(ii) Further there is no rebuttal to the contention of the applicant that any grievance was made against the applicant for not being respectful towards his subordinates and at no occasion ever had arisen were any complaint for not following the office protocol was raised by any person, including the officers in the department against the applicant.
(iii) Further, there is no rebuttal in respect to the contention of the applicant that 'the applicant had never inclined himself any sense of entitlement at all. There has not been any instance quoted by the Reviewing Authority, wherein the applicant had shown any inclination towards any entitlement. Further, with regard to remarks by the Reviewing Authority that applicant must try and put his working knowledge of laws and procedure to greater public service, the applicant had also contended that it is evident from all the files handled by him and order passed, he had used his knowledge for greater public service only, there has not been any instance when the action, decision or file notes of the applicant were put to question by any of the supervisor authorities including respondent no.3.
(iv) It is also stated by the applicant that from his self-appraisal and corresponding records, it is evident that all deliverables were duly attempted to be achieved and suitable result accomplished by the applicant. The Reviewing Authority has not disclosed any instance at which any of the decision of the applicant in any file was not found for greater public service. The Reviewing Authority has not made any comment on the data furnished by him in his self-appraisal.41 OA No.387 of 2022
It can be seen that the Reviewing Authority while writing the quality of officer in the area of his strength and lesser strength and his attitude towards weaker section as provided under Para 3 of Section IV of the said APAR, without assigning any reason or by mentioning any instance(s) recorded impugned remarks and as such the same are contrary to the material on record in respect to the performance of the applicant during the period under review. Therefore, the same cannot be allowed to maintain by treating it as advisory in nature as stated by the Referral Board in the impugned order.
7.3 At this stage, it is apt to mention that this Tribunal is conscious with the settled principle that no person can be a judge in his own case. We have also noticed that the respondents had also objected the claim of the applicant to maintain the overall grading of '9.17' granted by the Reporting Authority.
At the same time, we cannot ignore the fact that:
(i) the performance data mentioned in the Self Appraisal was agreed upon in Appraisal by the Reporting Authority by referring and mentioning the service record of the applicant had granted grading of '9' in respect to exceptional works and unforeseen tasks performed by the applicant herein as well as the same grading of '9' was given for 'accomplishment of planned work', 'quality of output', 'attitude to work', 'Overall bearing and personality', 'communication skills', 'emotional stability' and 'moral courage and willingness' and 'to take professional stand', 'capacity to work in time limit', 'strategic planning ability', 'decision making ability', 'initiative ability to motivate' and 'develop subordinates/work in team'.42 OA No.387 of 2022
(ii) It is also noticed that the Reporting Authority had given '10' numerical grading in respect to 'sense of responsibility', 'leadership qualities, coordination ability, knowledge of laws/rules/procedures/IT skills and awareness of local norms in the relevant area of the applicant. It is evident that by considering the said overall assessment, the Reporting Authority had awarded overall grading of '9.17' to the applicant.
(iii) Further it is noticed that undisputedly the Reviewing Authority and Referral Board agreed with the comments of the Reporting Authority that 'the Officer had shown good work output in the Commissionerate and his work competency is satisfactory. He is an intelligent officer having good working knowledge of law and procedure.'
(iv) Further it is evident that for the first spells of APAR of 2020 to 2021, i.e., 1.4.2020 to 4.11.2020, the Reporting Authority had awarded overall grading of '9.21' and the previous Reviewing Authority had agreed with the said Grading of '9.21'.
In the aforesaid facts and circumstances, we find substance in the submissions of the learned counsel that the performance of the applicant had not been correctly reviewed and appreciated by the Reviewing Authority as well as acceptance authority. in absence of any contrary material on record for the APAR under Review, the remarks/comments of the Reviewing Authority are not tenable.
7.4 We also take note of the fact that while partly allowing the representation of the applicant, though the Referral Board find it appropriate to expunge some of the adverse remarks recorded by the Reviewing Authority in the said APAR, in our considered view, the Referral Board ought to have also expunged the impugned 43 OA No.387 of 2022 remarks/comments recorded by the Reviewing Authority since the same were recorded contrary to the material on record as discussed hereinabove..
7.5 So far as contention of the learned counsel for the respondents that the Referral Board in the impugned order correctly observed that the Reviewing Authority had given adequate reasons and justification for downgrading of overall grading in para 2 of Section V and in Para 3 of Section IV of the said APAR is concerned, the said submission of the respondents in our considered view is not maintainable. Suffice to reiterate that there is no material on record to sustain the remarks recorded by the Reviewing Authority and as such the comments and remarks of the Reviewing Authority are not supported with any cogent reason for the purpose of downgrading the overall grading of the applicant.
7.6 Further, the reason assigned by the Referral Board to maintain the impugned remarks recorded by the Reviewing Authority that the said remarks are 'advisory in nature' is also not tenable since the same are contrary to the material on record. It is reiterated that the same remarks are contrary to the data provided in the Self-Appraisal and Appraisal and in absence of any material to sustain the said remarks the same is not tenable.
7.7 At this stage, it is profitable to note the observation of the Hon'ble Supreme Court in Sri M.A. Rajasekhar v. The State of Karnataka & Another, reported in 1996 (10) SCC 369, held that:
"It was found that his integrity was not doubted and his work also in all those respects was found to be satisfactory. Under those circumstances, the remark that he "does not act dispassionately then faced with dilemma" must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. He 44 OA No.387 of 2022 should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. Even when he acted in dilemma and lacked objectivity, in such circumstances, he must be guided by the authority as to the manner in which he acted upon. Since this exercise has been done by the respondents, it would be obvious that the above adverse remark was not consistent with law."
In the present case, as noted herein above, undisputedly, in respect to the alleged unsatisfactory performance of the applicant during the period under review, no opportunity to correct himself of any mistake had been ever given to him, not only that no opportunity in the cases where applicant had not alleged to have objectively or satisfactorily worked or performed. Therefore, the assessment of the Reviewing Authority are not in consonance with the dictum laid down by the Hon'ble Apex Court as well as various instructions issued time and again by the DoP&T in respect to writing of APAR and its assessment.
7.8 Thus, we are of the opinion that in absence of any substantial rebuttal and in absence of any contrary material on record the impugned remarks - comments recorded by the reviewing authority in the APAR of the applicant under review, i.e., :
"However he needs to work on his personal attributes especially with regard to office discipline, ethics and moral courage. Subordinates too need to be treated with respect and dignity so as to maintain office protocol..."
And the remarks that :
"He has good working knowledge of laws and procedure which he must try and put to greater public service."45 OA No.387 of 2022
The aforesaid remarks, in our considered view, as such are not tenable. Accordingly, the decision of the Referral Board in this regard is set aside. In other words, the aforesaid impugned remarks should be treated as expunged from the APAR of the applicant for the period from 5.11.2020 to 22.3.2021.
8. At this stage, it is apt to mention that by keeping in mind the performance of the officer reported upon, i.e., the applicant herein and also on perusal of the past performance of the applicant wherein he was constantly graded as 'Outstanding' though, the said past assessment are not binding for the assessment for the current assessment period, yet they serve as indicators of capabilities and personal attributes of the officer reported upon, accordingly, the Referral Board while partly allowing the representation of the applicant recorded its finding that such a drastic reduction in the grading by the Reviewing Officer (from '9.17' awarded by the Reporting Authority, to '7.44') is not proper and the same was not required.
Thus, it is evident that the Referral Board had as such agreed that the comments/remarks as well as the grading given by the Reviewing Authority is not tenable in the light of the performance of the officer reported upon. Under the circumstances, the finding of the Referral Board that for downgrading the numerical grading of the applicant by the Reviewing Authority has given adequate reason and justification runs contrary to the material on record.
9. We are of the considered opinion that although the Referral Board find it appropriate for upward correction of the overall grading awarded by the Reviewing Authority to make it in consonance with the performance of the officer during the impugned period and accordingly, upgraded the numerical grading of the applicant from '7.44' to '8.0'. However, in our considered view since there exists material on record in Self-Appraisal and Appraisal of the APAR on hand, the same are undisputedly indicator for the purpose of an appropriate assessment including for grant of higher grading in the case of the applicant as well 46 OA No.387 of 2022 as the discussion made hereinabove. For the said limited purpose, we deem it appropriate to remit the matter back to the competent authority to re-examine/review the decision of the Referral Board dated 16.6.2022 (Annexure A/1).
10. The present OA is allowed in the aforesaid terms. There shall be no order as to costs.
(Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
/ravi/