M.Paramasivam vs The Union Of India Represented By on 30 September, 2008

[Cites 3, Cited by 7]

Madras High Court

M.Paramasivam vs The Union Of India Represented By on 30 September, 2008

This writ petition has been filed against the order dated 9.9.2004 in O.A.No.213 of 2004 on the file of Central Administrative Tribunal, Madras bench dismissing the application filed by the petitioner. The writ petitioner had sought before the Tribunal a prayer seeking to set aside the order dated 24.4.2004 passed by the first respondent rejecting his plea to consider the effect of expunction of adverse remarks in the ACRs relating to the petitioner as regards his alleged entitlement to be empanelled for consideration for promotion to the next higher post.

II. Relevant facts in brief:

2.The facts require a further dilation. At the threshold of promotion, when the petitioner was working as Senior Section Engineer, to the post of Assistant Executive Engineer, a regular DPC was convened for assessing the suitability of the petitioner to the promotion post. The extant instructions were 70% of the posts were to be filled up by seniority-cum-suitability and 30% of the posts were to be filled up by limited departmental competitive examination. The petitioner vied for competition with others in the 70% quota. Out of 70%, the candidates were required to appear for written examination and those who secured 90/150 in the examination were subjected to viva-voce test. 25 marks had been assigned for viva-voce, 25 marks for record of service and the candidates had to secure a minimum of 30/50. Out of 25 marks allotted for record of service the candidate had to necessarily secure 15 marks from the last five years, on which alone depended the eligibility to be placed in the panel for selection.

III. Importance of grading in ACR stated:

3. The grading in the ACRs therefore assumed vital significance for, if a candidate did not have a minimum of 15 marks, he fell out of the range of consideration. On the basis of marks in the ACR's, candidates were assessed as outstanding, very good, good, average and below average with corresponding marks 5,4,3,2 and 1 marks respectively. The petitioner had been awarded with 14 marks for records of service and the short fall by 1 mark took him out of range of consideration. The scope of enquiry is further narrowed by the fact that in respect of the year 1998-99, he had been assessed as good by the Reporting Officer and downgraded to average by the Reviewing Officer and for 2000-2001, he had been assessed as "very good" by the reporting officer while the reviewing officer had downgraded to "good". If either one of the entries had been different and the downgrading had not been effected, the petitioner would have had a minimum of 15 marks and he could have been included in the panel for promotion. That did not happen, especially when the particular down grading by one scale had been made for the years 1998-99 and 2000-2001.

IV The effect of expunction of adverse entries in ACR

4.When adverse remarks had been made, the petitioner had complained against the adverse entries. Acting on the representation of the petitioner, the official responsible had earlier ordered the expunction of the remarks,. Notwithstanding their expunction, the grading remained the same and the non-consideration of the petitioner for promotion was the result. The petitioner therefore filed O.A.No.1122 of 2002 before the Central Administrative Tribunal challenging his non-selection and pointed out to the fact that in the light of expunction of adverse entries, the assessment could not have remained static and sought for consideration for promotion. The Tribunal passed an order on 10.2.2004 that contained direction to the respondent to reconsider by Review DPC, the effect of expunction of adverse entries on the overall grading and grade him accordingly and to consider the case of the applicant. On such further direction for reconsideration from the Tribunal, the Review DPC is purported to have taken note of all the relevant facts, but still the petitioner's name could not be empanelled since he had failed to obtain the requisite marks. This order was challenged again in O.A.No.213 of 2004 before the Central Administrative Tribunal and the Tribunal held that there was no scope for entertaining a judicial review in respect of the matter where the Review DPC had considered all the relevant facts and had come to a conclusion that he was not qualified.

V.No reasons given for downgrading against Executive instructions

1.It is vehemently contended before us that the DPC could not have failed to take note of the effect of expunction of remarks on relative grading in ACRs. Our attention was particularly drawn to two aspects:

(i)Brochures and Confidential Report issued by Ministry of Railway, Railway Board set out in Para 2.11.

2.11 After the report is written by Reporting officer, it would be reviewed by Reviewing authority i.e. authority superior to Reporting authority or such other authority as may be prescribed in this regard. The Reviewing authority should exercise a positive and independent judgment on the remarks given by the Reporting authority in the ACR and records his / her agreement or disagreement with the remarks / assessment of the Reporting authority, particularly if they are adverse.

Where the Reviewing authority disagrees with the assessment given by the Reporting officer, he should clearly mention the reasons therefore particularly in cases where it downgrades the assessment / rating given by the Reporting officer.

(ii) Contents and objective assessment contained in Para 3.10 as follows:

ACR contains a column regarding general assessment of the Government servant and grading of his work. The Government servant to be reported upon should be graded according to his performance. A Government servant should not be graded 'Outstanding' unless exceptional qualities and performance have been noticed in him. Reasons for giving such a grading should be clearly brought out. Where performance of an officer is graded 'Average', it should be supported by reasons bringing out his deficiencies in the body of the report, which should be communicated, to the concerned officer for improvement of his performance. Pointing out to the above instructions, it is argued before us that when the reviewing authority has agreed with the assessment given by the reporting officer, he could not have altered the grading, but when he did, the reasons for giving such a grading should be brought out.

5. It is borne out from the records which were produced before us that in the year 1998-99, the petitioner had been assigned two marks corresponding to assessment as average and for 2000-2001 he had been assigned 3 marks corresponding to assessment as good. The ACRs revealed that the reporting officer has graded him as "very good" for the year 2000-2001, while the reviewing officer making the remarks against the career has endorsed/approved the assessment given by the reporting officer, but downgraded him as "good". It is argued by the counsel for the petitioner that if he was agreeing with the assessment of the reporting officer, such an act must be with reference to his grading and consequently, there could not have been a change in assessment from "very good" to "good", and if such a down grading has to be done, it should have been done as per the instructions referred to above and the reasons for such down grading should have been given. It is clear from the remarks made by the reviewing officer that there is no such reasoning. Similarly, if for the year 1998-99, he had been originally assessed as "average", the expunction of adverse remarks subsequently could not have happened without a modicum of effect on the grading.

6. The respondents' only argument is that the review DPC , had before it the ACRs and remarks that had been made by the reviewing officers and that only after due notice the adverse entries had been expunged the marks had been given by the Review DPC. He would therefore plead before us that the assessment of the review DPC cannot be challenged and marks reassigned in favour of the petitioners.

7. The primacy of assessment by the DPC cannot be doubted in any way. All the instructions relating to assessment of ACRs are to ensure that a fair amount of objectivity is brought into reckoning and no person is subjected to any undue hardship and arbitrary grading. The requirement of having to state the reasons whenever there is relative downgrading exists not merely when the entries are adverse, but even from any form of downgrading which could be from excellent to "very good", or "very good" to "good".

VI. Need to assign reasons for down grading:

8. Learned counsel for the petitioner brought to our attention a decision of the Supreme Court in the State of Uttar Pradesh Vs. Narendranath Sinha reported in 2001(9) SCC 118 that the reporting Officer while grading from "outstanding" to "excellent", had not stated any reason or justification and no opportunity had been afforded, hence a fresh consideration was necessary. Again in U.P.Jal Nigam and others Vs. Pral Chandra reported in 1996 2 SCC 363, the Supreme Court held that when there was extreme variation from "excellent" grading in one year to "satisfactory" in the other, the reason for such change must be recorded in the personal file. It has been held in subsequent decision of the Supreme Court in Union of India Vs. Major Bhahadur Singh reported in (2006) 1 SCC 38 that the decision in U.P.Jal Nigam was in the particular circumstances of the case, when there was a huge difference in gradation. Therefore, the decision had to be confined only to the particular facts stated.

9. The serious flaw which has been occasioned out of not giving reasons for downgrading cannot be taken as merely an irrelevant issue, especially when all that the petitioner falls short is by one mark. Normally, we could have allowed the matter to go back for consideration by the review DPC, but such an exercise had already been undertaken. Indeed it is brought to our attention that the petitioner had subsequently been promoted and in the subsequent ACR, he has obtained his grading as "outstanding". The writ petition itself is only to obtain notional promotion, so that he could obtain the consequential benefits of re-fixation of salary without claiming any arrears on such re-fixation. We are therefore of the opinion that interest of justice would be best served, if the petitioner is awarded notional promotion on the basis that there had been a serious error in justice in the matter of gradation and assignment of marks by failure of the respondents to give reasons for downgrading and not giving tenable explanation as to how the expunction of the adverse remarks had no consequence of grading already made.

10. Under these circumstances, we set aside the order of the Central Administrative Tribunal and hold that he had the requisite eligibility for being considered for promotion and consequently direct that the petitioner shall be deemed to have been notionally promoted w.e.f. 5.7.2002 only for the purpose of fixing his scale of pay from the date when the petitioner's juniors had been empanelled for promotion and work out future benefits with reference to the scale of pay without claiming any arrears.

11.The writ petition is allowed on the above terms. No costs.

VJY/tk To

1.The Union of India represented by the General Manager, Southern Railway, Park Town, Chennai-3.

2. The Chief Personal Officer, Southern Railway H.Q., Park Town,Chennai-3.

3. The Registrar, Central Administrative Tribunal, Chennai 104

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