Central Administrative Tribunal - Delhi
Ashok Kumar Aneja vs Union Of India Through on 20 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 24/2007 New Delhi, this the 20th day of November, 2008 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Ashok Kumar Aneja, S/o Shri Kundan Lal Aneja, Aged about 59 years, R/o A-9/1, S.F.S. Flats, Saket, New Delhi-110017 Applicant (By Advocate: Shri A.K.Behera) Versus 1. Union of India through The Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi-110 001 2. The Chairman, Central Board of Direct Taxes, North Block, New Delhi-110001 3. U.P.S.C. through the Secretary, Shahjahan Road, New Delhi-110001 Respondents (By Advocate: Shri V.P. Uppal, for Union of India Shri Naresh Kaushik with Ms. Aditi Gupta, for UPSC) ORDER
Mr. L.K.Joshi, Vice Chairman (A) Shri Ashok Kumar Aneja, the Applicant herein retired on superannuation as Commissioner Income Tax on 31.05.2007. He is aggrieved by the fact that he was not considered fit by the Departmental Promotion Committee (DPC), which met in September, 2006 for the post of Chief Commissioner of Income Tax. The Applicant did not meet the prescribed benchmark of four Annual Confidential Reports (ACRs) to have Very Good grading out of five ACRs considered by the DPC. The Applicant was graded `Good in the year 2002-03. Further, for the year 2003-04 also, he was graded as `Good, which ACR was not reviewed. The Applicants contention in this OA is that :
the ACR below the benchmark of Very Good should have been communicated to him so that he could make representation against it; and the ACR of the year 2003-04 should not have been taken into consideration by the DPC because it had not been reviewed by the reviewing authority and, therefore, it was an incomplete ACR.
2. A reference had been made to a Bench of five Judges to consider the first issue whether the ACR below the prescribed benchmark should be communicated. The Bench in its order dated 7.05.2008 answered the question in affirmative holding thus:
35. Resultantly, we approve the view taken by the Ahmedabad Bench in OA 673/2004 holding that downgrading from `Very Good to `Good and similar downgrading does amount to making of an adverse entry. Mandatorily these are required to be communicated to the persons who stand to be affected thereby. The reference is answered as above. (Per Honble Member, Judicial) 32. In view of our reasoning as recorded earlier, we are of the opinion that the recording officer/reviewing officer who are presumed to be aware of the benchmark as laid down by the relevant orders, are also obliged to communicate the presence of the `Good entry, as and when they are recorded, to the knowledge of the concerned officer, for him to avail steps to resort to appropriate measures. This position could be envisaged as a fall out of the Supreme Courts decision in U.P. Jal Nigam as well as S.K. Goel. (Per Honble Vice Chairman, Judicial) Thus, the issue regarding communication of the ACR below the benchmark stands resolved.
3. Further, the Honourable Supreme Court in Dev Dutt Vs. Union of India and others, 2008 (7) SCALE 403 has held as follows :
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all en-tries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State ser-vice (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communica-tion of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or gov-ernment orders.
4. In so far the second issue regarding an ACR being incomplete without being reviewed and in such circumstances it not being advisable for the DPC to consider such ACR is concerned, the matter has been considered by the Ahmedabad Bench of this Tribunal in Shri A.P. Srivastava Vs. Union of India and others, OA No.673/2004 decided on 9.01.2007. The aforesaid learned Bench has taken into consideration the ratio laid down by the Honourable Supreme Court in State Bank of India Vs. Kashi Nath Kher, AIR 1996 SC 1328, which is reproduced below :
15. It would appear that the confidential reports and character rolls are being prepared by the officers of the same rank in the same MMGS-II working in the establishment department over the same cadre officers working elsewhere and the reporting officers are the same. Ms. Nisha is right and the High Court is well justified in holding that such a procedure is violative of the principles of natural justice. Such procedure and practice is obviously pernicious and pregnant with prejudices and manipulative violating the principles of natural justice and highly unfair. The object of writing confidential report is two fold, i. e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This Court in Delhi Transport Corporation's case (AIR 1991 SC 101) pointed out pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectively, impartially and fair assessment without any prejudices whatsoever with highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by superior officer of high rank, who are such high rank officers is for the appellant to decide. The appellants have to prescribe the officer competent to write the confidentials. There should be another higher officer in rank above the officer who has written confidential report to review such report. The appointing authority or any equivalent officer would be competent to approve the confidential reports or character rolls. This procedure would be fair and reasonable. The reports thus written would form basis for consideration for promotion. The procedure presently adopted is clearly illegal, unfair and unjust. (emphasis added) The Ahmedabad Bench thereafter has held thus :
12. We are accordingly of the view that the ACR is required to be recorded at two levels and in case one of the levels is not available then the said ACR can not be treated as complete. In the instant case there is an additional factor referred to above. (emphasis added)
13. We are accordingly of the view that the ACR of applicant for the year 2002-03 is not complete and hence can not be considered for promotion to the next higher rank.
5. We may also mention that in the instant case, there was ample opportunity for having the ACR reviewed. We had directed the Respondents to file an affidavit by our order dated 21.10.2008 to disclose the reasons why the ACR of the Applicant of the year 2003-04 could not be reviewed and also to disclose the date of retirement on superannuation of the reviewing officer. It has been stated in the affidavit, which has been filed by the Respondents on our directions that the ACR of the Applicant was recorded by the reporting officer Smt. Baljit Bains, the then Chief Commissioner of Income Tax on 30.08.2004. The reviewing officer Shri K. Subramanian, the then Member, CBDT, retired on superannuation on 30.10.2004. As far as the instructions are concerned, the officer, after retirement on superannuation, can record the ACRs up to one month after his retirement. This fact has been accepted by both parties during the course of the arguments. Therefore, we notice that in spite of ample opportunity being available, the Respondents did not have the ACR of the Applicant reviewed by the reviewing officer.
6. We need not go into further details of the case. The relevant facts have already been considered in the order of the Larger Bench of this Tribunal. The only arguments advanced by the Respondents with regard to the necessity of ACR to be reviewed were that (i) there are instructions of the Government about not considering the ACR complete if it is not reviewed and (ii) it would create difficulties if the reviewing officer has retired before the time for reviewing the ACRs or is not available for some other reason. We are unable to accept these arguments in view of the judicial precedents cited in the preceding paragraph. Moreover, previous years ACRs are also available for consideration.
7. On the basis of the above discussion, the OA succeeds. We direct that the Respondents should communicate the ACR for the year 2002-03 to the Applicant and get his comments, which may be considered by an officer of the rank of Member, CBDT. The report should be communicated to the Applicant within one month of the receipt of a certified copy of this order and the Applicant would give his representation to the second Respondent within one month of the receipt of the communication from the second Respondent. This would be further considered and a decision should be taken on this within one month after the receipt of the representation from the Applicant. In other words, a decision on the representation would be taken within three months of the receipt of a certified copy of this order. We further direct that the grading decided in the ACR of 2002-03 after receipt of representation etc. should be considered by the review DPC for the DPC of September, 2006. We further direct that the aforesaid review DPC shall not consider the ACR for the year 2003-04. The ACR to be considered would be one year immediately before the first ACR, which has been considered. To clarify, if in the last DPC of September, 2006 the ACRs from the year 2001-02 were considered, then in the instant case, the ACR for the year 2000-2001 should be considered in lieu of the ACR, which has not been reviewed. This is only by way of illustration. The review DPC should be held as expeditiously as possible but not later than five months from the date of receipt of a certified copy of this order. No costs.
(Meera Chhibber ) ( L.K. Joshi )
Member (J) Vice Chairman (A)
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