Central Administrative Tribunal - Delhi
Resident Of vs Union Of India Through on 25 August, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 2252/2014 Reserved on: 17.03.2015 Pronounced on:25.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Tushar Ranjan Mohanty S/o Shri Rabi Narayan Mohanty SAG Officer of the Indian Statistical Service Deputy Director General, Research and Publication Unit, Coordination and Publication Division, Central Statistics Office, Ministry of Statistics and Programme Implementation, Room No.6,Wing No.6, Ground Floor, West Block No.8, R.K. Puram, New Delhi 110 066. Resident of: G-31, HUDCO Place Extension, New Delhi-110 049. Applicant (Applicant in person) Versus 1. Union of India through The Chief Statistician of India and Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi 110 001. 2. Prof. TCA Anant, Chief Statistician of India and Secretary, Ministry of Statistics and Programme Implementation, Fourth Floor, Sardar Patel Bhawan, Parliament Street, New Delhi 110 001. 3. Shri Asish Kumar, Additional Director General, Central Statistical Office, Ministry of Statistics and Programme Implementation, Fourth Floor, Sardar Patel Bhawan, Parliament Street, New Delhi 110 001. Respondents (By Advocate: Shri R.N. Singh) O R D E R By Dr. B.K. Sinha, Member (A):
In the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved with the adverse remarks and below benchmark grading in his Annual Performance Appraisal Report (APAR) for the period from 01.11.2012 to 04.02.2013.
2. The applicant has prayed for the following relief(s):-
8.1 to allow the present Application;
8.2 to quash and set aside the adverse comments and below benchmark grading in the Annual Performance Appraisal Report for the period 01.11.2012 to 04.02.2013 (Annexure A-1) of the applicant;
8.3 and as a consequence thereto, direct the respondent Ministry to upgrade the Annual Performance Appraisal Report for the period 01.11.2012 to 04.02.2013 (Annexure A-1) of the applicant to Outstanding and grant 10 (Ten) marks out of 10 (Ten) to the applicant;
8.4. to pass suitable strictures against respondent no.2 and also other officers manning the Indian Statistical Service who are guilty of negligence as evidence from the official files;
8.5 to issue any such and further orders/directions this Honble Tribunal deems fit and proper in the circumstances of the case; and 8.6 to allow exemplary costs of the application.
3. Admittedly the applicant is a member of 1981 batch of Indian Statistical Service (ISS) (Group-A Service) under the Government of India, being controlled and governed by the Indian Statistical Service Rules, 2013 [hereinafter referred to as ISS Rules, 2013]. The applicant submits that he has been engaged in a long drawn legal battle with the respondents, which has continued without there being any sign of abatement. He was granted SAG of ISS on regular basis w.e.f. 29.05.2009 vide order dated 04.11.2011. The sequence of events narrated by the applicant in this regard is that on 04.11.2011, the applicant joined the respondent Ministry as Deputy Director General. On 31.10.2012, the Director General, Central Statistics Office, who was the immediate superior of the applicant, superannuated from government service as a consequence of which the respondent no.2 became his reviewing officer. The applicant submitted his self-appraisal of APAR for the period 01.11.2012 to 04.02.2013 to the reporting officer on 14.05.2013 despite not having received the blank APAR form from the respondent Ministry. This should have been received by the applicant by 31.03.2013. On 01.07.2013, the reporting officer reported upon his performance and submitted to the respondent no.2 in capacity of reviewing officer. On 16.12.2012, the applicant received a communication of adverse and below benchmark remarks in his APAR for the year 2011-2012 and for the period 01.04.2012 to 31.07.2012. On 24.01.2014, the applicant submitted his representation against the adverse and below benchmark grading on the ground that the respondent no.2 had recorded his portion very late. The applicant on this account represented to the respondent Ministry to interdict respondent no.2 from recording any comments in the impugned APAR. On 20.12.2012, the respondent Ministry unilaterally decided that there would be no reviewing officer for the applicant and that the Chief Statistician of India would not be the reviewing authority but the accepting authority. On 30.01.2013, the respondent no.2 recorded combined submission as accepting authority of the applicant and awarded five (5) marks out of ten (10). On 03.02.2014, the applicant received a letter seeking his representation, inter alia, against the adverse and below benchmark grading in the impugned APAR. On 10.03.2014, the applicant submitted a comprehensive representation which continues to linger in the respondent department and has not been put up before the Minister of State (Independent Charge) for Statistics and Programme Implementation. On 11.03.2014, the applicant requested for an early disposal of his representation and when no reasons were forthcoming, he proceeded to file the instant OA.
4. The applicant appears to have adopted as many as 106 grounds in the OA, which run from page 225 to 243 of the paper book. These grounds have been generally stated in a stereotyped format. For instance, the impugned APAR violates the judgment of Honble Privy Council in Emperor Vs. Sibnath Banerji, AIR 1945 PC 156; Jagannath Vs. State of Orissa, AIR 1966 (SC) 1140; and Abdul Rajjak Abdul Wahab Vs. Commissioner of Police, 1989 (2) SCC 222. Likewise, the list runs on and on. While citing these judgments, the applicant has not shown as to in what manner these violations have taken place and what are the points of the judgments which have been violated. It appears that this has been left to the good judgment of the Tribunal to go through and decide. However, during the course of oral submissions, these grounds have been considerably shortened by the applicant. We have tried our level best to glean the grounds from the pleadings as also on the basis of oral submissions and have narrowed down in the following manner:-
(1) The ground the applicant has pleaded vociferously is that the introduction of the system of accepting authority is wrong and de hors the ISS Rules and the Transaction of Business Rules and has been introduced against the procedures without the approval by the Indian Statistical Service Board;
(2) The remarks of the accepting authority have been made beyond the time stipulated;
(3) The applicant also alleges hostile discrimination and mala fide against the respondents particularly against respondent no.2 on a number of counts, which are:-
(i) In the first place that his ACR was not submitted before the then Minister In-charge one Srikant Jaina, who was well acquainted with the working and contributions made by the applicant to the department;
(ii) In the second place, the applicant refers that the respondent no.2 harbours a deep bias against the applicant as he had challenged his appointment in OA No.1653/2010, which led to his appointment being quashed. The respondent has since become vindictive against the applicant and these remarks have been recorded out of malice being borne against the applicant.
(4) The applicant has also submitted that the successor to Honble Minister Srikant Jaina has decided the representation on the advice of respondent no.2 against whom the applicant has accused malice. Therefore, it amounts to non-application of mind.
5. The respondents have given a short reply stating that the applicant has filed OA No. 1334/2014 challenging the introduction of accepting authority in respect of APARs of ISS officers and the matter is pending consideration of the Tribunal. The respondents have also taken preliminary objection to the effect that the instant OA is hit by the requirement of Section 20 of the AT Act as the representation of the applicant has not been disposed of by the time he filed the instant OA.
6. Sh. R.N. Singh, the learned counsel for the respondents, fairly conceded that the applicant is a phenomenally intelligent officer and it has been so recorded in his ACR and acknowledged by the accepting authority. The learned counsel emphatically submitted that not even a part of the remarks had been incorrectly given and all the remarks were based upon what has been recorded by the reporting officer as there was no reviewing officer in the instant case. While giving credit to the applicant, the respondent no.2 has recorded what he had experienced during his working with the applicant for the period. The learned counsel for the respondents has completely denied the allegation of mala fide leveled by the applicant. While admitting that the applicant was intervener in OA No. 1653/2010 decided on 20.10.2011 (S.K. Das versus UOI), the respondents denied that the appointment of the respondent no.2 had been quashed on the basis of the arguments of the applicant. The said S.K. Das was the applicant in this case and it nowhere stands stated that the case had been decided in favour of the applicant on the basis of the arguments advanced by the intervener. The learned counsel further submitted that the applicant had filed more than 200 OAs before this Tribunal and other courts and, therefore, it is easy for him to link each and every decision of any of the courts. The aforesaid decision was challenged before the Honble High Court of Delhi by way of WP(C) No. 8124/2011 wherein the applicant, not being a party, was not permitted to make his submissions. Aggrieved, the applicant filed CM Application for recall of judgment dated 17.09.2013 passed by the Honble High Court of Delhi, which was dismissed at the admission stage itself without issuing notice. Therefore, the applicant was not at all a party in these cases and his attempt to make out a case of bias on part of accepting authority by linking the court cases is only an attempt to mislead the Tribunal. The respondents further stated that as per the rules, if the reporting officer is not in a position and the review officer was taking work directly, from the officer reported upon, then he may initiate the report and submit the same to his own superior for review. Accordingly, the said S.K. Das, the reviewing authority of the applicant initiated the report and submitted the same to the Secretary, MOSPI. Since Secretary, MOSPI is the accepting authority, in the instant case, the accepting authority accepted the report. It is further submitted that since the period 01.11.2012 to 04.02.2013, the post of reviewing officer was vacant, so APAR could not be reviewed and it was accepted by the accepting authority i.e. Secretary, MOSPI.
7. Learned counsel for the respondents contends that the applicant has submitted a bulky representation of 115 pages and the same requires time for disposal. It was further argued by the respondents that the applicant has himself not adhered to the time and submitted his ACRs late and even the representation was also made after 15 days of the time stipulated.
8. The applicant has filed rejoinder wherein he has reiterated what he has submitted in the OA. The applicant repeated the argument that it was the accepting authority, who was not adhering to the timeline while dealing with APARs. Further, the accepting authority has given a combined comment for two periods i.e. 01.08.2012 o 31.10.2012 and 01.11.2012 to 04.02.2013, which is not permissible in terms of the extant rules and, therefore, cannot be sustained. The applicant in his rejoinder has referred to allegations of malice against the respondent no.2 and submits that he has been targeted for exposing corruption of several of the cronies of respondent no.2. These corrupt officers had to return several lakhs of rupees due to continuous tirade of the applicant. While still a good many gains accruing from the nets of corruption of the respondent no.2 and his cronies are yet to be recovered from these officers, the fact that there were recoveries of several lakhs of rupees from these officers has upset the apple cart and the applicant has to pay the price of not only being honest, but more for the reason for being completely intolerant towards corruption, corrupt practices and corrupt officers. Unfortunately, the corrupt officers were close to respondent no.2. The applicant further insisted upon reading in the court a copy of letter dated 15.09.2014 highly accusatory in nature addressed to the respondents, which has been placed at Pg. 613 of the paper book.
9. We have carefully gone through the pleadings of the parties as also the documents so adduced by them. We have also patiently heard the oral submissions of the learned counsel for the parties on the basis of which the following issues emerge for our determination in the instant case:-
1. Whether introduction of respondent no.2 as the Accepting Authority for writing APAR of the applicant is perverse under law?
2. Whether the remarks of the respondent no.2 recorded in the capacity of Accepting Authority are hit by delay?
3. Whether the impugned remarks are motivated by malice on part of the respondent no.2?
4. Whether the impugned remarks of the Accepting Authority show non-application of mind and arbitrariness?
5. What relief, if any, could be granted to the applicant?
10. Insofar as the first of the issues is concerned, this has already been challenged by the applicant in OA No.1334/2014, which has been decided on 20.08.2015 against the applicant. While deciding the matter, this Tribunal went in depth into the provisions of Articles 53, 74 & 77 of the Constitution relating to the executive powers of the State. Relying upon the decisions of the Honble Supreme Court in S.R. Bommai Vs. Union of India [1994(3) SCC 1] and Shamsher Singh Vs. Union of India [AIR 1974 SC 2192], the Tribunal arrived at the conclusion that the Council of Ministers, the Ministers and the individual officials exercise the executive powers of the President and that it was not mandatory for the respondent Ministry to consult the DOPT before introducing a third tier of appraisal in form of an Accepting Authority. For the sake of clarity, relevant portion of the decision in OA No.1334/2014 is being extracted as under:-
It is not possible for even the most hardworking of the Ministers to attend to every business of his Ministry personally nor is he expected to burden himself with the day-to-day administration, his primary function being to lay down policies and programmes of his Ministry while the Council of Ministers settles the major policies of the Government. This gives rise to the need for making provisions for more convenient transaction of business with each Ministry. This is done by the Rules of Business by designating particular civil servants or officials within the Ministry who shall be competent to take decisions or dispose of business of the Government subject to the control of the Minister-in-charge or directions issued by him through the standing orders [Sanjeevi vs State of Madras, 1970(1) SCC 443]. The Honble Supreme Court has further held in Shamsher Singh (supra) that any action taken by the specified officials designated by the Rules of Business is an action of the Government because the officials designated by the Rules of Business are limbs of Government, not its delegates. The rules of business and allocation of business rules among ministers of the said business all indicate that the decision of the minister or the officer U/A 77(3) is the decision of the President. Where functions entrusted to a Minister are performed by an official deployed in the ministers department, this is in law no delegation because constitutionally the act or the decision of the official is that of the Minister. The decision in Shamsher Singh (supra) is further supported by a decision of the Honble Supreme Court in Municipal Corporation of Delhi vs Birla Cotton and Spinning and Weaving Mills AIR 1968 SC 1232 that the official is merely machinery for discharge of the functions entrusted to the Minister. In short, by the Rules of Business made by the Government on advice of the Council of Ministers the President cannot only allocate the various subjects amongst particular Ministers but may go further and designate a particular official to discharge any particular function.
11. In view of such findings, this issue can no longer be taken as a ground and no useful purpose will be served by discussing this issue apart from adding to the bulk of the order. Now, we have to proceed with the assumption that the respondent no.2 is a legally inducted accepting authority whose remarks shall continue to be valid unless decided otherwise.
12. Insofar as the second of the issues is concerned, we have to examine what is the purpose of writing the ACRs/APARs. This issue has been examined in depth by Ahmedabad Bench of this Tribunal in A.P. Srivastava versus Union of India & Ors. [OA No. 673/2004 decided on 09.01.2007] and by the Principal Bench of this Tribunal in Gunjan Prasad versus Govt. of India [OA No. 1233/2014 decided on 28.04.2015], Devendra Swaroop Saxena Vs. Union of India & Ors. [OA No.4258/2013 decided on 19.12.2014]. The controversy in these cases had gone into the purpose of recording ACRs on the basis of various decisions of Honble High Courts and Tribunal. For the sake of convenience, relevant portion of the decision in Gunjan Prasad versus Govt. of India (supra) is being extracted herein below:-
21. In the case of Devendra Swaroop Saxena Vs. Union of India & Ors. in OA No 4258/2013 decided on 19.12.2014, the objects of recording confidential ACR have been dealt with in Para 18 of the order, which is being reproduced as hereunder:-
18. Additionally, we have consulted decisions of the Apex Court in Amar Kant Chaudhary versus State of Bihar [AIR 1984 (SC) 531]; State of Haryana versus P.C. Wadhwa [AIR 1987 (SC) 1201]; Union of India versus E.G. Nambudiri [AIR 1991 (SC) 1216]; S. Ramachandra Raju versus State of Orissa [1994 (5) SLR 199]; Sri Rajasekhar versus State of Karnataka [1996 (5) SLR 643]; State Bank of India versus Kashinath Kher [AIR 1996 (SC) 1328]; State of U.P. versus Ved Pal Singh [AIR 1997 (SC) 608]; Swatantar Singh versus State of Haryana [AIR 1997 (SC) 2105]; Union of India versus N.R. Banerjee [1997 SCC (L&S) 1194]; State of U.P. versus Yamuna Shanker Misra [1997 (4) SCC 7]; State of Gujarat vesus Suryakant Chunilal Shah [1999(1) SCC 529]; P.K. Shastri versus State of M.P. & Ors.[1999(7) SCC 329], B.P. Singh versus State of Bihar [2001 SCC (L&S) 403] and also the decision of Ahmedabad Bench of this Tribunal in the matter of A.P. Srivastava versus Union of India & Ors [OA No.673/2004 decided on 09.01.2007] on the basis of which following principles could be culled out:-
(i) Article 51(A)(j) enjoins upon every citizen to constantly endeavour to prove excellence individually and collectively. Given an opportunity an individual employee strives to improve excellence and thereby efficiency of administration would be augmented.
(ii) The object of writing confidential reports is two fold i.e., to given an opportunity to the officer concerned to remove the deficiencies, to improve his performance and to realize his potential and secondly to improve the quality & efficiency of the administration.
(iii) The object of communicating adverse ACR to the officer concerned is to enable him to make amends, to reform, to discipline himself and show improvement towards efficiency, excellence in public administration.
(iv) One of the uses of ACR is to grade him in various categories like outstanding, very good and satisfactory and average etc.
(v) Purpose of adverse entries is to be forewarn an employee to mend his ways and improve his performance.
(vi) The ACRs must be recorded at two levels.
(vii) The ACRs must be recorded objectively and after a careful consideration of all the materials. It should not be a reflection of personal whims or fancies or prejudices, likes of dislikes of a superior.
(viii)The Apex Court in Nambudiris case after 'eferring to the Constitution Bench decision in Mohinder Singh Gill and G.S. Fijji has held that principles of natural justice apply to administrative orders if such orders inflict civil consequences. Civil consequences means anything which affect a citizen in his civil life. Unjust decision in an administrative enquiry may have more far reaching consequences than a decision in a quasi-judicial enquiry.
(ix) The Apex Court in Amar Kant Chaudhary and Yamuna Shankar Misras case has emphasized the need for sharing information before forming an adverse opinion. The Apex court in Amar Kant Choudhary had asked the Executive to re-examine the existing practice of writing of ACRs to find a solution to the misuse of these powers by officers, who may not be well disposed.
(x) Representations against adverse/below benchmark entries must be disposed of by the prescribed competent authority and not by other.
(xi) The disposal of the representation must be made in a quasi judicial manner by a reasons order on due application of mind.
13. Now, we take into account the different timelines as have been provided along with ACRs. The applicant has drawn our attention to Annexure-II which was the format attached to the APAR for ISS officers/SAG Level for the period from 0.11.2012 to 31.03.2013. It was emphasized by the applicant that in the form attached with the APAR provided to him, there was no mention or provision of accepting authority. The exercise of recording the APAR was to be concluded by 30th November. The applicant in para 47 in his representation dated 10.03.2014 referred to Annexure-III of the Brochure on Preparation & Maintenance of Annual Performance Assessment Report for Central Civil Services and Annexure-III of the Office Memorandum dated 23.07.2009, the Time Schedule for preparation/completion of the APAR, where the reporting year is the financial year, and timeline/time schedule has to be mandatorily followed.
14. We have done another exercise in this regard that the difference between the two formats is that vide the one which was enclosed with APAR submitted by the applicant, the accepting authority is not there while in the other, the accepting authority is there. Here, it is to be noted that the applicant claims that he was not provided the format of APAR and he has submitted the same on his own. Therefore, we have also fitted the actual deadline as per which the APAR has been submitted and assessed. The comparison of both the Time schedule, as noted above, is given in the below chart:-
Time schedule for preparation/completion of APAR (Reporting year Financial Year) SUBMITTED BY THE APPLICANT Sl.
No. Nature of action Date by which to be completed 1 Distribution of blank CR forms to all concerned (i.e. to officer to be reported upon ) 31st March (This may be completed even a week earlier) 2 Submission of self-appraisal to Reporting Officer by officer to be reported upon 15th April 3 Submission of report by Reporting Officer to Reviewing Officer.
30th June 4 Report to be completed by Reviewing Officer and to be sent to Administration or CR Section/ Cell.
31st July
5.
Disclosure to the officer reported upon 01st September
6. Receipt of representation, if any, on APAR by the APAR Cell, M/o Statistics & Programme Implementation, S.P. Bhawan, New Delhi.
15 days from the date of receipt of communication.
7. Forwarding of representations to the competent authority 21st September
8. Disposal of representation by the competent authority Within one month from the date of receipt of representation.
9. Communication of the decision of the competent authority on the representation by the APAR Cell.
15th November
10. End of entire APAR process, after which the APAR will be finally taken on record.
30th November.
Annexure-III of the Brochure on Preparation & Maintenance of APAR Sl.
No. Nature of action Date by which to be completed 1 Distribution of blank CR forms to all concerned (i.e. to officer to be reported upon where self-appraisal has to be given and to Reporting Officers where self-appraisal is not to be given) 31st March (This may be completed even a week earlier) 2 Submission of self-appraisal to Reporting Officer by officer to be reported upon (where applicable) 15th April 3 Submission of report by Reporting Officer to Reviewing Officer.
30th June 4 Report to be completed by Reviewing Officer and to be sent to Administration or CR Section/ Cell or accepting authority wherever provided.
31st July
5. Appraisal by accepting authority, wherever provided 31st August
6.
(a)Disclosure to the officer reported upon where there is no reporting authority.
(b) Disclosure to the officer reported upon where there is accepting authority.
01st September 15th September
7. Receipt of representation, if any, on APAR 15 days from the date of receipt of communication.
8. Forwarding of representations to the competent authority
(a) Where there is no accepting authority for APAR
(b) Where there is accepting authority for APAR 21st September 06th October
9. Disposal of representation by the competent authority Within one month from the date of receipt of representation.
10. Communication of the decision of the competent authority on the representation by the APAR Cell.
15th November
11. End of entire APAR process, after which the APAR will be finally taken on record.
30th November.
15. Here, it is to be noted that the applicant claims that he had not received the APAR form and, therefore, he submitted the form on his own on 14.05.2013. The reporting officer has recorded his remarks on 01.07.2013 instead of 30.06.2013 and, therefore, not much delay is involved. However, the accepting authority recorded his remarks on 31.02.2014 against the due date of 31.08.2013. The disclosure to the officer reported upon should have been made by 15.09.2013 whereas it is on 03.02.2014. The representation has, however, been received 15 days later i.e. on 10.03.2014.
16. Here, we definitely find that the accepting authority has been late in recording his remarks and communicating the same to the applicant. The applicant has submitted his APAR on 14.05.2013. In this regard, the argument of the respondents has been contained in para 13 and 14 of the counter affidavit. Non-adherence of the timeline is equally applicable to all the parties concerned.
17. Sh. R.N.Singh, learned counsel for the respondents argued that once there was no adherence on part of the applicant, he cannot seek strict adherence from others. Here, we rely upon the decision of this Tribunal in M.K. Mirani, Chief Commissioner of Income Tax Vs. Union of India & Ors. [OA No. 105/2013 decided on 01.07.2013]. In this case, one of the issues was that whether the late submission of confidential reports bar the applicant from taking plea that the reviewing officer was not competent to initiate his ACRs. This issue has been decided against the applicant in that case, relevant portion whereof is reproduced hereunder:-
12. The Government also enjoins in Order 55 that the writing of ACR is a public trust and responsibility and must be completed in time. It is an admitted position that the applicant had submitted his resume only on 12.06.2007 whereas it should have been submitted by 15.04.2007. Had he submitted his resume within the stipulated period, M.N. Verma, CCIT, who was still in service, would have been competent to write his ACR. Likewise, Ms. Indira Bhargava, who was the Chairman, CBDT and the Accepting Authority in the instant case, would still have been in service and would have completed all the formalities. She retired only on 31.05.2007. The entire mischief had occurred because of late submission of the resume by the applicant. Here, we would very much agree with the learned counsel for the private respondent no.4 that had the resume been submitted in normal course, there would have been no occasion for this proceeding.
13. The learned counsel for the applicant has tried to explain the position by saying that the Reporting Officer was authorized to send his report in case no resume is submitted by the due date. However, we do not accept this explanation for the simple reason that initiation of process is to the submission of resume. There has been no satisfactory explanation forthcoming as to why the resume was submitted late. Assuming that the Reporting Officer should have sent his remarks where the resume was not forthcoming but has defaulted in this matter, still it would not have conferred any retrieve to the applicant on this ground as it would not absolve him of his part of mistake. Accordingly, this issue is decided against the applicant.
18. In the instant case too we are guided by the legal maxim that equity begets equity. It is well known fact that the situation is governed by the maxim Equitas sequitur legem, or that equity follows the law. Equity is defined to be a correction, or qualification of the law, generally made in that part wherein it faileth, or is too severe. It is a body of legal rules and remedies developed by the court of Chancery parallel to but separate from the common law; that which is fair and right; the recourse to general principles of justice to correct and supplement the ordinary law (S.132, T.P. Act (4 of 1882)].
Equity is defined to be a correction, or qualification of the law, generally made in that part wherein it faileth, or is too severe. In other words the correction of that wherein the law. By reason of its universality, is deficient.(1 Comm. 62 Tomlin). Body of legal rules and remedies developed by the Court of Chancery parallel to but separate from the common law; that which is fair and right; the recourse of general principles of justice to correct and supplement the ordinary law [S. 132, T.P. Act (4 of 1882)]. The word equity is used by lawyers and legal writers in various senses (See Austins Jurisprudence. Ch.; Co. Litt. 24 (b.)] of these by far the most important is its meaning as the name of what Austin proposed to call Chancery Law, and what can only be defined as that portion of remedial justice which was formerly exclusively administered by a Court of equity as contradistinguished from that portion which was formerly exclusively administered by a Court of Common law (story, S. 25); that portion of remedial justice administered in England by the High Court of Chancery by virtue of its extraordinary jurisdiction as extended, limited, and modified by statue and adapted to English conditions by judicial construction. The lay notion of equity is that its purpose is to administer natural justice in the particular case without regard to fixed or general rules, and indeed to set aside rules of law when essential to do so to the ends of natural justice. Such was undoubtedly the principle guiding the early chancellors. Such a state of affairs inevitably led to the condition depicted by the well known statement of Selden that Equity is a roguish thing. For law we have a measure, and know what we trust to equity. It is all one as if they should make his foot the standard for the measure we call the Chancellors doctrines of this court ought to be as well settled, and made a uniform almost as those of the common law laying down fixed principles, but taking care that they are not to be applied according to the circumstances of each case.
Here we have to also distinguish between Equity and Justice which happen to be intrinsically the same. In a technical sense, equity is the moral redressing of what is legal, where, owing to the imperfection of human also sometimes styled a Court of justice. The following remarks may serve to illustrate the difference generally between the two. Justice is chiefly concerned with personal rights, and rights of property between man and man. Equity is concerned chiefly with man himself. Our life, faculties, work, the fruits of our work, or fortune, reputation, honour are exclusively our own. Justice forbids violence to be done against these, and compensates for it if done. Our wants, miseries errors, faults wrongs, are not ours exclusively; they come of the weakness of humanity. Equity compassionates these things, and binds one to do good to another, if it be in his power. Justice in a manner isolates us from one another, and guards against the occasion which may make us enemies. Equity unites us, regarding us as members of the same body. Wrong not another, and recompense whom you have wronged, is the language of justice. Do to that other as one would like others to do oneself. This is the language of equity. Justice ensures to individuals all that law accords to them, and so implies communities living under positive rule. Equity is based upon natural law, and is an expression of human sentiment rather than political enactment, justice is the inflexible guardian of the public safety, and being inflexible regards nothing but the fact, whereas, equity will consider motives and intentions, and modify its decision accordingly. Where one receives injury, justice grants him redress, where the offence has been in any degree by error, or if the penalty to which one has the right to enforce should involve the ruin of the other equity suggests the question. ought I to pursue the case? All that the law declares is just. It belongs to equity to temper the rigour of its decrees.
From this method of interpreting laws by the reason of them, arises what we call equity, which is thus defined by Grotius:- The correction of that wherein the law, by reason of its universality, is deficient. (Smith Syn. Dis. ) Equity- Equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness and edge of the law, and is a universal truth. It does also assist the law, where it is defective and weak in the constitution (which is the life of the law). Equity defends law from crafty evasions, delusions and mere subtleties, invented and contrived to evade and elude the common law, whereby such as have undoubted right are made remediless. And thus is the office of equity to protect and support the common law from shifts and contrivances against the justice of the law. Equity therefore, does not destroy the law, nor create it, but assist it. [Sir JOHN TREVOR, M.R., Dudley v. Dudley, Preced in Ch. 241, 244 : 1 Wooddeson, Lect. 7, 192: 1 Story Eq. Jur. 13].
19. The Honble Supreme Court in W.B. State Electricity Board versus Patel Engg. Co. [2001 (2) SCC 451, para 28] held that the mistakes remained in the documents due to gross negligence in not checking the same before the submission of bid by the bidder and the rectification or correction in documents were not sought by him within time. Considering the maxim "equity follows the law. There is also a maxim that equity begets what equity does. This maxim of equity entitles a person to the benefits of the law only where he has been iquitous himself as held in W.B. State Electricity Board versus Patel Engg. Co. (supra), which reads as under:-
28. Exceptions to the above general principle of seeking relief in equity on the ground of mistake, as can be culled out from the same para, are :
(1) Where the mistake might have been avoided by the exercise of ordinary care and diligence on the part of the bidder but where the offeree of the bid has or is deemed to have knowlege of the mistake, he cannot be permitted to take advantage of such a mistake.
(2) Where the bidder on discovery of the mistake fails to act promptly in informing to the concerned authority and request for rectification, withdrawal or cancellation of bid on the ground of clerical mistake is not made before opening of all the bids, (3) Where the bidder fails to follow the rules and regulations set forth in the advertisement for bids as to the time when bidders may withdraw their offer; however where the mistake is discovered after opening of bids, the bidder may be permitted to withdraw the bid.
20. Therefore, invoking the equity jurisdiction, we find that the applicant having erred himself is not entitled to get benefit of the maxim of equity with equity will not suffer a wrong without the remedy. We would have been most happy to allow the plea of the applicant on this very ground had he himself been right. We do not accept the plea of the applicant that the format of APAR was not delivered to him as the same has been denied by the respondents. Therefore, it boils down to oath against oath. We are, however, constrained in allowing equity where the contradictory part has not been fulfilled by the applicant.
21. Insofar as the third of the issues relating to malice is concerned, the principal ground of the applicant is that in OA No. 1653 of 2010 (Sh. S. K. Das Vs. UOI), the appointment of respondent no. 2 was quashed by the Tribunal on the basis of his arguments. Though stated ambiguously, the applicant invariably created the impression in his pleadings and oral submissions that he has had major contributions in getting the appointment of Respondent No. 2 quashed by this Tribunal vide order dated 20.10.2011 in the afore OA for which he has not been forgiven by the latter to this date. Per contra, we also take note of submissions of the Respondents that the applicant had appeared only as intervener in OA No. 1653/2010 in which one S.K. Das had been the applicant. The applicant was also not a party to the Writ Petition No. 8124/2011 filed before the Honble High Court of Delhi wherein the afore order of the Tribunal had been quashed vide order dated 17.09.2013. It had also been submitted by the respondents that when the applicant wanted to make submissions on behalf of the respondent in the above Writ Petition, he was not permitted to do so by the Honble High Court of Delhi as he had not been a party to the proceedings. Moreover, his CM for recall of the order dated 17.09.2013 had been dismissed by the Honble High Court of Delhi at the admission stage itself without having issued notice to the Ministry. In view of the claims and counter claims, it is difficult for us to assert with any degree of certainty as to what extent the applicant can legitimately claim the laurels for the orders passed in OA No.1653/2010 as they were passed on 20.10.2011. However, we take note of the argument of the respondents that the case had been filed and contested by the applicant S.K. Das in OA No.1653/2010 and the matter does not survive as the order of the Tribunal had been set aside by the Honble High Court of Delhi, as referred to above, and that the Government does not act on the basis of malice against persons who had contested its decisions before courts.
22. Now, we go into the definition and nuance of the term mala fide, which has been defined by the Apex Court in the case of State of Punjab & Another versus Gurdial Singh & Others [(1980) 2 SCC 471] while discussing what is mala fide and how it is to be proved and held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
23. Further, in the case of Ravi Yashwant Bhoir versus District Collector Raigarh & Others [2012 (4) SCC 407], the Honble Supreme Court made a comprehensive view of its own earlier judgment and held as under:-
47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745).
24. In the case of in Institute of Law versus Neeraj Sharma Manu SC0841/2014 the Honble Apex Court has held as under:
29. Further, we have to refer to the case of Akhil Bhartiya Upbhokta Congress v. State of M.P. and Ors. (2011) 5 SCC 29, wherein this Court has succinctly laid down the law after considering catena of cases of this Court with regard to allotment of public property as under:
50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good......In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law.
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54. In Breen v. Amalgamated Engg. Union, Lord Denning MR said: (QB p. 190, B-C) ... The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law.
55. In Laker Airways Ltd. v. Deptt. of Trade Lord Denning discussed prerogative of the Minister to give directions to Civil Aviation Authorities overruling the specific provisions in the statute in the time of war and said: (QB p. 705, F-G) Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive.
56. This Court has long ago discarded the theory of unfettered discretion. In S.G. Jaisinghani v. Union of India, Ramaswami, J. emphasised that absence of arbitrary power is the foundation of a system governed by rule of law and observed: (AIR p. 1434, para 14)
14. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law......
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59. In Kasturi Lal Lakshmi Reddy v. State of J&K, Bhagwati J. speaking for the Court observed: (SCC pp. 13-14, para 14)
14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid....
61. The Court also referred to the reasons recorded in the orders passed by the Minister for award of dealership of petrol pumps and gas agencies and observed: (Common Cause case, SCC p. 554, para 24)
24. ... While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category....
62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC pp. 236, 239-40)
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional....
25. In the light of the above mentioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry out the necessary Regulations for allotting land for the purpose of constructing a public educational institution should not be misused.
26. In another land mark case of Sardar Prakash Singh Badal Vs. V.K. Khanna & Ors. (2001) 2 SCC 330, the Honble Supreme Court has further held that:
(2.) THE concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness. And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common man's perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. It is worthwhile to recapitulate that in a democratic polity, the verdict of the people determines the continuance of an elected Government - a negative trend in the elections brings forth a change in the Government - it is on this formula that one dominant political party overturns another dominant political party and thereby places itself at the helm of the affairs in the matter of the formation of a new Government after the election. The dispute in the appeals pertains to the last phase of the earlier Government and the first phase of the present Government in the State of Punjab : Whereas the former Chief Secretary of the State of Punjab upon obtaining approval from the then Chief Minister of Punjab initiated proceedings against two senior colleagues of his in the Punjab State Administration but with the new induction of Shri Prakash Singh Badal as the Chief Minister of Punjab, not only the Chief Secretary had to walk out of the administrative building but a number seventeen officer in the hierarchy of officers of Indian Administrative Service and working in the State of Punjab as a bureaucrat, was placed as the Chief Secretary and within a period of 10 days of his entry at the Secretariat, a notification was issued, though with the authority and consent of the Chief Minister pertaining to cancellation of two earlier notifications initiating a Central Bureau of Investigation (CBI) enquiry. The charges being acquisition of assets much beyond the known source of income and grant of sanction of a Government plot to Punjab Cricket Control Board for the purposes of Stadium at Mohali. A worthwhile recapitulation thus depict that a Government servant in the Indian Administrative Service being charged with acquiring assets beyond the known source of income and while one particular Government initiates an enquiry against such an acquisition, the other Government within 10 days of its installation withdraws the notification - is this fair? The High Court decried it and attributed it to be a motive improper and mala fide and hence by appeal before this Court.
6. In Girija Shankar Pant's case (supra) this Court having regard to the changing structure of the society stated that the modernisation of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test of real likelihood and reasonable suspicion, reliance was placed in the decision in the case of Parthasarthy (S. Parthasarthy v. State of Andhra Pradesh4), wherein Mathew, J. observed :
"16. the tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reason- able man would in the circumstances infer that there is real likelihood of bias. the Court must look at the impression which other people have. This follows from the principle that Justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not con- duct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. the Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others, etc.: 1968(3) WLR 694 at 707). We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings."
27. In the case of Kumaon Mandal Vikas Nigam Ltd. V. (2001) 1 SCC 182, the Apex Court has held as under:-
5. Whereas fairness is synonymous with reasonableness - bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a malafide move which results in the miscarriage of justice (see in this context Kumaon Mandal Vikas Nigam v. GiriJa Shankar Pant & Ors.1. In almost all legal enquiries, "intention as distinguished from motive is the all important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Brothers (Hunstanton) Ltd. v. Steuens2, the Court of Appeal has stated upon reliance on the decision of Lumley v. Gye3 as below :
"For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye, where Crompton, J. said that it was clear that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service commits a wrongful act for which is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse : Bromage v. Prosser, [1825(1) C. & P. 673], "Intentionally" refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved."
28. We also find that the respondents have relied upon the case of E.P. Royappa Vs. State of Tamil Nadu & Anr. AIR 1974 SC 555 wherein the Honble Supreme Court has gone to emphasize the necessity of proof:
..Secondly, we must not also overlook that the burned of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
29. We have already stated that the instant OA is one amongst a chain of long running legal feud where arguments are more or less standardized on the issue of mala fide and are repeated with regularity in almost every case. In R.K. Rai v. Union of India and Ors. (OA No. 3132/2014 decided on 12.012.2015) this Bench of the Tribunal has gone into the issue of mala fide as alleged in those cases on the same ground and conclusively rejected the same. In that case this Tribunal had held that action may be wrong at times but every wrong committed not imply that it is actuated by mala fide, which needs to be proved on the facts of each case.
30. In conclusion of the issue, we have already held that this is another case in long standing legal feud raging between the applicant and the respondents. At one time, the Honble High Court had tried to broker peace and had granted major concessions to the applicant including withdrawal of criminal case which had withstood the challenge at several legal fora including before the Chief Metropolitan of the Delhi. However, the situation has gone back to the stage where it originally stood prior to the peace efforts by the Honble High Court, or has become even worse.
31. In the instant case we are swayed by primarily three considerations. In the first place, it does not appear legitimate on part of the applicant to claim that it was on the basis of the arguments of the applicant that the appointment of the respondent no.2 had been quashed. He was merely an intervener in OA No.1653/2010 whereby the appointment of the applicant had been quashed. He was not even the party to the Writ Petition (C) No.8124/2011 before the Honble High Court of Delhi and was not, therefore, permitted by the Honble High Court to argue in that case. In the second place, mala fide could have been more plausibly pleaded on part of the said S.K. Das, the applicant in OA No.1963/2010 before this Tribunal. We do not find any complaint of any mala fide filed by the said S.K. Das against the Respondent No. 2. Had there been any such act of harassment against the said S K Das it would have been brought to our notice. In the third place, as per the litigation policies of the Government of India, this Tribunal is thronged by persons seeking relief against the Respondent authorities. However, it is not often that such authorities have acted in a vengeful manner. In addition in the decision of R.K. Rai and Anr V. State of Union of India (supra), this matter has been gone into depth by this Tribunal. Therefore, we find that the applicant has failed to discharge the burden of proof that lies upon his shoulder. This issue is accordingly decided against the applicant.
32. Now we take up the issue of non-application of mind and arbitrariness. We find from the record that the reporting authority has given the applicant 8.97 marks. The reporting officer makes the pen picture of the officer in the following manner:-
(i) He is intelligent (ii) Ensures that the jobs assigned to him are completed within time schedule (iii) He is efficient and effective manager. The impugned remarks of the accepting authority are as under:- (i) Does not agree with the reporting officer; (ii) The applicant is fairly intelligent; (iii) His contribution was ordinary; (iv) He was prone to whimsical functioning; (v) This impeded the organizational goals and team work;
(vi) Ad hoc ways in routine work were visible in the printing of TPP calendars
(vii) His unprofessional conduct, when, in full view of the participants, he indulged in loud exchanges with officers of his unit, caused grave embarrassment in the meeting of the heads of national statistical offices of BRICS countries. His contribution towards releases and publications in RPU are a result of the set of officers and systems in place;
(viii) His contribution was ordinary;
(ix) Based on work output, behavioural competency and functional competency, he has rated him Good.
33. It appears from the above that the remarks of the accepting authority (respondent no.2) have been based on his personal observation and experience. However, we find that the respondent no.2 in the capacity of accepting authority has conceded that the applicant is a fairly intelligent officer. However, his contribution to the department was ordinary, and he also refers him to be prone to whimsical functioning which impeded the organizational goals.
34. The learned counsel for the respondents has referred that due to whimsical and temperamental character, the applicant has been continuously in trouble. He also referred the earlier incident where the applicant had assaulted some officers of the respondent department in the court premises, for which he was charge sheeted. Thus, there does not appear anything that the remarks have been made on account of his temperamental and whimsical character. However, it must be confessed at this moment that we are nobody to decide the competence of the applicant as the court is not empowered to step into the shoes of the appellate authority. Therefore, we cannot say whether the remarks were justified or not or if justified, to what extent. The only point for which the learned counsel for the respondents has succeeded in making that the remarks of the accepting authority are not biased. Other observations of the applicant, like his behavior and entering into loud exchanges in international conferences are borne out of his personal experience as also his contribution to publications being ordinary. We have further taken note of the argument of the learned counsel for the respondents that applicants behavioural aspect has also been taken note of by the accepting authority while giving his remarks.
35. At this point of time, in consideration of the entire issues we can only hold that we have not found on answer to the present issue that the accepting authority has indulged in non-application of mind and arbitrariness.
36. We observe here that the applicant has filed more than 208 litigations against the respondent department out of which 53 are still active on the cause list of this Tribunal. Each of his pleadings runs into 900-1000 pages. It would require compilation as to what cases have been allowed and what cases have been rejected. However, we are to observe that the applicant is a very intelligent officer with very good knowledge of law and command over English language. He is articulate. However, we may also observe that we find him present in the court almost every day. It is also admitted that the Honble High Court of Delhi made efforts to sort out the issues of the applicant on the terms advantageous to the applicant, but the same proved to be of no avail in this unabated spate of cases being thrown from his pen.
37. In the instant case, we find that the first issue challenging the respondent no.2 being made accepting authority has already been considered and rejected; the impugned remarks being hit by delay on account of factor of equity; the issue of malice has already been decided in another case and, therefore, cannot be agitated here; there is nothing on record to show non-application of mind and arbitrariness on part of the respondents. However, before we part with this order, we would like to observe that the applicant being an intelligent and capable officer, could have been of much use with his capabilities to this nation, but he has wasted a huge amount of time and effort in chasing litigations. We are further of the view that the applicant could still well redeem himself on account of capabilities. At the same time, we find the instant OA bereft of merit and the same is dismissed accordingly. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/