Central Administrative Tribunal - Hyderabad
A. Sunder Kumar Das vs Union Of India & Others Reported In 2008 ... on 18 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH :: HYDERABAD O.A.No. 738 of 2007 Date of Order: 18.12.2008 Between: A. Sunder Kumar Das, IPS ..Applicant And 1.The State of Andhra Pradesh, Rep. by the Chief Secretary to Government, General Administration Department, A.P. Secretariat, Hyderabad. 2.The Director General & Inspector General of Police, Andhra Pradesh, Hyderabad. 3.The Secretary, Ministry of Home Affairs, Govt. of India, North Block, New Delhi. 4.Sri K.R. Nandan, IPS, S/o. K. Sreenivasa Rao, Director General of Police (Admn), Andhra Pradesh, Hyderabad. ..Respondents Counsel for the Applicant : Mr. P. Ratnam, Advocate Counsel for the Respondents : Mr. G. Jaya Prakash Babu, Sr.CGSC for R3 Mr. D.Y. Setti, SC for A.P. For R 1 & 2 Mr. K. Sudhakar Reddy, Advocate for R-4 CORAM: The Hon'ble Mr. Justice P. LAKSHMANA REDDY, Vice-Chairman The Hon'ble Mr. R. SANTHANAM, Member (Admn). *** ORAL ORDER
(As per Hon'ble Mr. R. SANTHANAM, Member (Admn).) The applicant in this O.A. is aggrieved by the order of the 1st respondent passed vide Memo. No. 507/SC.E/2007-1 dated 23.08.2007 rejecting his representation dated 29.06.2007 to expunge advisory remarks communicated to him.
2. The applicant belongs to Indian Police Service of 1998 batch. He claims that he has been awarded several appreciation letters including Police Medals. He was holding the post of Assistant Inspector General of Police (Admn.) from 01.07.2005 to 06.11.2006. His Annual Confidential Report for the period from 01.04.2006 to 06.11.2006 was initiated by the 4th respondent herein who was Addl. DGP (Admn) at that time. The applicant claims that he was reporting to two officers viz., Addl. DGP (Admn) and Addl. DGP (Provisions & Logistics). Most of the subjects that were handled by him were under the control of Addl. DGP (Provisions & Logistics). The appropriate authority, according to the applicant, to initiate the ACR is the Addl. DGP (Provisions & Logistics). But the Addl. DGP (Admn) chose to initiate the ACR even without calling for a special report or opinion from the Addl. DGP (Provisions & Logistics). The 4th respondent had made the following remarks in the ACR which was communicated to the applicant:
However, it was recorded that as AIG (Admn) you have to duly apply service Rules for Last Grade Service and Ministerial Service upto Sr. Assistants. There have been instances of improper understanding and consequent erroneous functioning, for which you are suitably advised. There is scope for improvement by way of a more positive and open minded attitude. It was further recorded that the fact that in 1 = years as AIG (Admn.), you have effected 214 transfers for a staff strength (Jr. Assts., Sr. Assts., Supdts.,) of around 150 only, the bulk of them within three months and quite a number being repeat transfers for the concerned staff, does not reflect well on your decision making ability. There is scope for improvement in interpersonal relations, especially as regards taking advice in the proper spirit.
3. While communicating the remarks, the applicant was informed that the remarks should be treated as advisory. The applicant claims that the observations of the 4th respondent herein are motivated, biased, malafide and have been made with an ulterior motive to spite the applicant. He has cited a few instances which according to him have influenced the 4th respondent's attitude towards the applicant. On receipt of the advisory remarks, the applicant submitted a detailed representation dated 29.06.2007 to the 1st respondent under a copy to the 2nd and 3rd respondents herein to expunge the remarks made in his ACR for the period from 01.04.2006 to 06.11.2006. But his representation has been rejected informing him that as per All India Service (CR) Rules, 1970 there is no provision to expunge advisory remarks communicated to a member of service and yet advisory remarks are communicated to enable the member of service to improve his performance. It is this rejection that has been challenged through this O.A.
4. The 1st respondent has filed reply statement stating that the Department of Personnel & Training has issued instructions in circular letter No. 11059/8/86-AIS(III) dated 16.02.1987 with regard to the advisory remarks, according to which, the instruction/ advice/ councel given by the reporting / reviewing/ accepting authority in the CR shall not be taken as matters adverse to the officer reported upon. These remarks are instructive designed to help the officer to improve his performance. They have stated that for the post of AIG (Admn.), Addl. DGP (Admn.) is the reporting authority, DG & IGP is the reviewing authority and Chief Secretary is the accepting authority. They have, therefore, disputed the claim of the applicant that the ACR should have been initiated by Addl. DGP(P & L). The respondents have further stated that there is no provision in the All India Service (CR) Rules, 1970 to make a representation against the advisory remarks communicated to the member of service in the said rules.
5. Reply affidavit has also been filed on behalf of the 3rd respondent who has also stated that as per rules 10(1) of AIS (CR) Rules, 1970, the government shall consider representations made against adverse remarks made under rule 9 by a member of the service. There is no provision to entertain representation against the advisory remarks. They have further stated that the advisory remarks were communicated only to enable the member of service to improve his performance and therefore, the question of expunction of advisory remarks does not arise.
6. Separate reply affidavit has been filed by the 2nd respondent justifying the remarks made in the ACR of the applicant by the 4th respondent. He has stated that according to proviso to Rule 8(2) of AIS (CR) Rules, 1970, the question whether a particular remark recorded in the confidential report of the member of the service is an adverse remark or not shall be decided by the Government and when the 1st respondent has communicated the remarks as advisory, it cannot be contended by the applicant that they are adverse remarks.
7. The 4th respondent has also filed a reply affidavit justifying his action in initiating the ACR and he has added that he is not required to obtain a report from the ADGP (P & L) as per rules and norms, but the 2nd respondent as reviewing authority did obtain a report from the Addl. DGP (P&L) about the performance of the applicant and recorded his remarks in the CR.
8. Heard Mr. P. Rathnam, learned counsel for the applicant, Mr. D.Y. Setti, learned counsel for the State Government, Sri G. Jaya Prakash Babu, learned Sr. CGSC for the 3rd respondent and Mr. K. Sudhakar Reddy, learned counsel for the 4th respondent. Material papers furnished by them were also perused.
9. Learned counsel for the State Government placed before us the relevant file in which advisory remarks were communicated to the applicant and also the confidential report for the relevant year.
10. The issues that arise for consideration are -
(i) Whether the respondent No.4 was competent to initiate the report of the applicant?
(ii) Whether the respondent No.3 was correct in communicating the advisory remarks?
(iii) Whether the remarks that were communicated are adverse or advisory in nature?
(iv) To what relief is the applicant entitled?
11. Issue No.1: The applicant claims that the CR for the period from 01.04.2006 to 06.11.2006 should not have been initiated by the Addl. DGP (Admn) since the latter joined only on 01.05.2006 and he had not seen the performance of the applicant during the period from 01.04.2006 to 30.04.2006. More over, the CR should have been initiated by the Addl. DGP (P&L) under whose control the applicant was in charge of many sections as per distribution of work. The respondent No.4 in his reply has stated that as per Sub-Rule 4 of Rule 5 of AIS (CR) Rules, 1970 where the reporting authority has not seen, and the reviewing authority has seen, the performance of the member of the service for at least three months during the period for which the confidential report is to be written, the confidential report of any such member for any such period shall be written by the reviewing authority. Since the applicant was under the control of the 4th respondent from 01.05.2006 to 06.11.2006 i.e. for more than three months which is sufficient for initiating the ACR as per rules, he was well within his right to initiate the ACR of the applicant. The respondent No.1 in his reply affidavit has also stated that for the post of AIG (Admn), the ADGP (Admn) is the reporting authority and that it is not correct to state that the ACR of the applicant should have been initiated by the Addl. DGP (P&L). From the rule position, it is obvious that the respondent No. 4 is competent to initiate the report on the applicant and the applicant's contention that his action was irregular is without any basis. Thus this point is found against the applicant.
12. Issue No. II. The applicant contends that Rule 8 of All India Services (CR) Rules, 1970 provides for communication of only adverse remarks and there is no provision to make entry in the CR giving advice and there is also no provision to communicate advisory remarks. Rule 10(A) of AIS (CR) Rules, 1970 gives power to the Central Government to issue instructions not inconsistent with the provisions of the rules. This section is reproduced below:
10-A General.- The Central Government may issue such instructions, not inconsistent with the provisions of these rules, as it may consider necessary, with regard to the writing of the confidential reports, the maintenance of the confidential rolls and the effect of the confidential reports on the conditions of service of a member of the service. The 1st respondent has invited attention to the circular letter No. 11059/8/86-AIS(III) dated 16.02.1987 which states that instructions/ advice/ counsel given by the reporting / reviewing/ accepting authority in the CR shall not be taken as matters adverse to the officer reported upon. These remarks are instructive designed to help the officer to improve his performance. This instruction has been given out of powers given in Rule 10(a) of the AIS (CR) Rules, 1970. The Hon'ble Apex Court in the case of Dev Dutt Vs. Union of India & Others reported in 2008 (8) SCC 725 has stressed the importance of communicating the entries in the ACR of a public servant. The relevant portion is extracted below:
Every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary. It is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of an employee and make him work harder. In the above judgment, the Hon'ble Apex Court also observed that -
Communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often principle of elimination is followed in selection for promotion, and even a single entry can destroy career of an officer which has otherwise been outstanding throughout. In paras 34 and 35 of the said judgment, the Apex Court has also observed as follows:
Originally there were said to be only two principles of natural justice: (1) rule against bias. (2) right to be heard (audi alteram partem). However, subsequently, some more rules came to added, namely, requirement to give reasons. Natural justice has also been held to be part of Article 14 of the Constitution. Natural justice is not a stagnating but an expanding concept. It is open to court to develop new principles of natural justice in appropriate cases.
Their Lordships have elaborated on the principle of natural justice in paras 26, 33 & 36 of the above judgment :
In the instant case, a new principle of natural justice is being developed by holding that fairness and transparency in public administration require that all entries (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 service (except military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This rule prevails even if there may be no rule/ G.O. Requiring communication of entry, or even if there is a rule/ G.O. prohibiting it, because principles of non-arbitrariness in State action as envisaged by Article 14 of the Constitution require such communication. Article 14 overrides all rules of government orders.
13. Even before the judgment in Dev Dutta supra was delivered by the Hon'ble Apex Court, a Five-Member Bench of this Tribunal (Principal Bench) in O.A. No. 24/2007 delivered on 07.05.2008 had ruled that the recording officer/ reviewing officer who are assumed 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 concerned officer enabling him to take appropriate measures.
14. It would be seen from the foregoing that the trend in civil service is towards more transparency with regard to the communication of the entries in the confidential report because it is recognized that the entries in the confidential report play a vital role in shaping the career of an officer. We are therefore, of the considered opinion that the respondent No.3 is not only justified in communicating the advisory remarks to the applicant, but in fact, he is obliged to do so. Therefore, this point is also found against the applicant.
15. Issue No. III: We find from explanation to Rule 8 that Adverse remark means a remark which indicates the defects or deficiencies in the quality of work or performance or conduct of an officer, but does not include any word or words in the nature of counsel or advise to the officer Proviso to Rule 8 states that the question whether a particular remark recorded in the confidential report of a member of the service is an adverse remark or not shall be decided by the Government. Another proviso states that in the event of any difference of opinion between the Central Government and the Government of State whether a particular remark is to be deemed as adverse remark or not, the opinion of the Central Government shall prevail. In the present case, the State Government concluded that the remarks made in the confidential report against the applicant are advisory in nature and not adverse. Since the applicant was aggrieved and had made a representation against the remarks, the State Government should have consulted the Government of India whether these remarks are adverse or advisory in nature. We find several expressions in the remarks which have been communicated to the applicant that are adverse in nature. For instance, the expression like improper understanding, erroneous functioning, etc. cannot certainly be considered as advisory. The remark that in 1 = years of AIG (Admn), you have effected 214 transfers for a staff strength (Jr. Assts., Sr. Assts., Supdts.) of around 150 only, the bulk of them within three months and quite a number being repeat transfers for the concerned staff, does not reflect well on your decision making ability. is certainly an adverse remark. More over, the overall grading of the applicant as recorded by the Addl. DGP (Admn) and as confirmed by the accepting authority is 'average'. The 'average' grading can come in the way of promotion even though it is considered adverse. The State Government's stand that the advisory remarks are communicated to enable the member of service to improve his performance and therefore, expunction of advisory remarks does not arise can quite often be harmful to officers since in the garb of advisory remarks, a number of adverse remarks can be entered in the confidential reports which cannot be expunged and which can prejudice the member of the empanneled committee/ selection committee against the officers reported upon. On the other hand, if they are considered adverse, the officer will have opportunity to represent against those remarks and get them expunged. The advisory remarks can therefore cause greater harm than the adverse remarks in certain circumstances. We are, therefore, of the considered view that the remarks communicated against the officer are certainly adverse in nature. Therefore, this point is found in favour of the applicant.
16. Issue IV: The purpose of communicating adverse remarks is to enable the officer to make a representation against such remarks if he is aggrieved so that it can be either expunged or toned down. Since it is held that the remarks against the applicant are adverse in nature, we are of the considered view that they should be communicated to the applicant immediately with a view to enable him to make a representation for expunction of the remarks. The applicant can also take recourse to Rule 25 of AIS (Disciplinary & Appeal) Rules, 1969 under which a member of the service is entitled to submit a memorial to the President against any order of the central government or the State Government by which he is aggrieved including an order passed by them under Rule 10(1) of AIS (CR) Rules, 1970.
17. In the result, O.A. is partly allowed with the following observations:
(i) The impugned memo C. No. 571(160)/SC.B/06 dated 28.08.2007 of the 2nd respondent is quashed and set aside;
(ii) The remarks communicated by the 1st respondent under D.O. Letter No. 59/SC.E/2007-2 dated 29.03.2007 are to be treated as adverse and communicated to the applicant to enable him to make a representation in that regard.
(iii) On receipt of the above communication, the applicant is at liberty to make a representation in accordance with the Rule 9 of AIS(CR) Rules, 1970 or Rule 25 of AIS (Disciplinary & Appeal) Rules, 1969;
(iv) On receipt of such representation, if it is made by the applicant, the respondents shall dispose of the same within a period of four weeks from the date of receipt of such representation.
18. There shall be no order as to costs.
(R. SANTHANAM) (P. LAKSHMANA REDDY)
MEMBER (Admn) VICE- CHAIRMAN
Dated this the 18th day of December, 2008
(Dictated in Open Court)