Central Administrative Tribunal - Delhi
T.M. Sampath vs The Director General on 28 August, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.1131/2008 New Delhi, this the 28th day of August, 2008 HONBLE MR.L.K. JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) T.M. Sampath Administrative Officer, National Water Development Agency, Flat NO.213, Palika Bhawan, R.K. Puram, Sector-13, New Delhi-110 066. ..Applicant By Advocate: In person. Versus 1. The Director General, National Water Development Agency, 18-20 Community Centre, Saket, New Delhi-110 017. 2. Shri Jabbar Ali Deputy Director & Reporting Officer, National Water Development Agency, Flat No.206, Palika Bhawan, R.K. Puram, Sector-13, New Delhi-110 066. 3. Shri K.P. Gupta Superintending Engineer & Reviewing Officer, Investigation Circle, National Water Development Agency, Damanganga Project Building, Damanaganga Colony-I Campus, Tihal Road, Valsad, Gujarat. ..Respondents By Advocate: Shri M.M. Sudan. O R D E R
By Honble Mrs. Meera Chhibber, Member (J) By this OA, applicant has sought the following relief:-
To call for the confidential report of the applicant for the period from 26.6.2004 to 16..1.2005, examine and quash the Confidential Report written and reviewed by respondent Nos.2 and 3.
2. It is stated by the applicant that he was appointed as Administrative Officer on 23.4.2001 after he qualified the departmental examination and was posted in the administrative wing of National Water Development Agency (hereinafter referred to as NWDA) (HQ) where he was performing the duties of assisting the Dy. Director (Admn.) and Director (Admn.). He had objected to the compassionate appointment of Mrs. Rajni Sharma and absorption of 5 LDCs of Cement Corporation of India as it was not permissible whereas senior officers including Shri S.G. Sood, the then Dy. Director (Admn.) wanted to favour those persons. Applicant had even challenged appointment of Shri S.G. Sood who was appointed as Dy. Director (Admn.) ignoring the claim of applicant by filing Writ Petition No.4385/2003, therefore, he was not maintaining good relations with the applicant. Since then applicant had given a complaint also on 24.6.2002 that Shri Sood had threatened he would spoil his CR yet no action was taken and Shri Sood did spoil applicants CR for the year 2002-03 which was challenged by the applicant by filing Writ Petition No.2220/2005 and is now pending in Tribunal as it was transferred.
3. Applicant had even pointed out irregularities committed by the then Chief Engineer (HQ) Shri S.B. Suri which was found to be correct. He had to make payments, therefore, he also became inimical to the applicant. As a result of it, applicant was transferred on 7.11.2002 but that was also stayed by the High Court on 29.11.2002. The officers got so furious that applicant was suspended on 30.09.2003 and charge-sheets were issued. Ultimately suspension was revoked w.e.f. 26.6.2004.
4. After revocation of suspension, he was posted in task force on interlinking of rivers w.ef.. 28.6.2004 even though there was no work. Applicant was kept idle from 28.6.2004 to 16.1.2005 which is evident from the fact that even Secretary, Task Force had written there is no work for Administrative Officer and his services may be utilized elsewhere.
5. From 17.1.2005 applicant was again posted in O&M Unit under Superintending Engineer III Unit Palika Bhawan arbitrarily which is being agitated separately.
6. It is submitted by the applicant that he submitted his resume for the period from 28.6.2004 to 16.1.2005 to the then Secretary, Task Force by clearly mentioning therein that his CR should not be reviewed by SHri K.P. Gupta as he has personal grudge against the applicant. His CR should have been written by the Secretary yet it was written by the Dy. Director Shri Jabbar Ali and reviewed by Shri K.P. Gupta, Superintending Engineer even though they had no jurisdiction. Being aggrieved he gave a representation for quashing his CR from 28.6.2004 to 16.1.2005 but his representation has been rejected vide memo dated 28.2.2008.
7. He had requested the respondent No.1 to provide him a copy of his CR for 2004-05 and 2005-06 but the same has been denied, therefore, he had no other option but to file the present OA.
8. Respondents have opposed this OA. They have submitted the application filed by the applicant relates to quashing of his Annual Confidential Report for the period 28.6.2004 to 16.1.2005 reported by Shri Jabbar Ali, Deputy Director, NWDA and reviewed by Shri K.P. Gupta, Superintending Engineer, NWDA. The contention of applicant that his posting in Task Force is illegal is denied. They have explained he was posted in the Task Force with the approval of the Competent Authority in the interest of work. Being a Government servant, the applicant can be ordered by the competent authority to perform any official duty which in the opinion of the competent authority may be in public interest. Even before his joining the Task Fore, Secretary of the Task Force (Smt. Neena Garg) had issued a detailed duty char, vide communication No.NG/PERS/2004/05, dated 26.3.2004, indicating the channel of submission for every type of staff working in Task Force. As per this duty chart, the applicant was supposed to report to Shri Jabbar Ali, Deputy Director. Therefore, applicant was rightly asked to submit resume to Shri Jabar Ali, Deputy Director (respondent No.2). Regarding his apprehensions that Shri K.P. Gupta, Superintending Engineer (respondent No.3) will spoil his report, the applicant has not submitted any supporting documents which may substantiate his apprehensions. As his Annual Confidential Report for the period 28.6.2004 to 16.1.2005 was reported and reviewed by the designated officer, there was no question to consider the request of the applicant for quashing the Annual Confidential Report for the above period.
9. They have also explained that Task Force on inter-linking of rivers was set up on the directions of the then Honble Prime Minister of India. Shri Suresh Prabhu, Honble Member of Parliament was appointed as its Chairman. As NWDA is basically dealing with the subject, it provided secretariat/ministerial assistance to the Task Force and also met all the expenditure of Task Force in terms of Ministry of Water Resources Resolution No.2/21/2002-BM dated 13.12.2002 (Annexure R-5). Therefore, it is incorrect to say that Task Force on inter-linking of reviews was not an outfit of NWDA. As such the contention of the applicant that his posting with the Task Force was arbitrary and done with the intention of harassment is totally false. It is also submitted that when the applicant was posted with the Task Force, about 20 other employees of various level were already working in the Task Force. As such the contention of the applicant that Task Force was a defunct entity ion the date of his posting with the Task Force is totally false and denied.
10. They have further submitted that the applicant joined the Task Force on 28.6.2004 whereas he requested Secretary, Task Force on 20.12.2004 for issuing his further posting orders. He wants to say that during this six months period, the applicant was not aware about the working of the Task Force which in itself is quite strange and no one will accept his contention. As per rule 40 (iv) and 41 of the Rules and Regulations of the NWDA Society (Annexure R-6), Director General (respondent No.1) has powers to prescribe duties and functions of officers and staff of NWDA. While exercising this power, Director General issued orders posting the applicant in O&M Unit of NWDA. Once the competent authority approves his posting in O&M Unit, functions of that unit become the legal duties of the applicant. It is submitted here that nature of work of O&M unit is of secretariat nature and there is nothing illegal while posting the applicant in O&M Unit.
11. As far as the allegations against Shri K.P. Gupta are concerned, the applicant has not submitted any documentary proof to substantiate his apprehension that Shi K.P. Gupta will spoil his report. In the absence of any documentary proof, he cannot level this type of allegation. Moreover, the remarks given in the Annual Confidential Report simply show the level of performance observed by the Reporting/Reviewing officer during that particular period. As proper procedure was followed for writing Annual Confidential Report of the applicant for the period 28.6.2004 to 16.1.2005, his request dated 15.1.2008 for quashing the Annual Confidential Report for the above period was not agreed to.
12. They have further explained that the post of Deputy Director (Admn.) fell vacant on 29.12.2007. As per recruitment rules, the post of Deputy Director (Admn.) is to be filled by promotion/deputation (including short term contract). As the mode of recruitment is composite one, the applicant being the departmental candidate, has to compete with outside candidates. During the meeting of the selection committee held on 19.2.2008, the candidature of the applicant was also considered by the selection committee along with outside candidates. Since the applicant is presently undergoing minor penalty of reduction of pay by one increment for a period of three years he could not be selected. In future selections also, his candidature will be considered provided he submits his application within the prescribed time limit. They have thus prayed there is no merit in the OA, the same may, therefore, be dismissed.
13. We have heard applicant, who appeared in person as well as counsel for the respondents.
14. Respondents have explained that Task Force for interlinking of rivers was set up in 2002 since NWDA is dealing with the subject, it had not only provided secretarial/ministerial assistance to the Task Force but had also met all the expenditure of Task Force which is evident from Annexure-5 (page 97) of the counter-affidavit. The relevant portion of Annexure-5 is quoted for ready reference:-
CONSTITUTION OF TASK FORCE ON INTERLINKING OF RIVERS (TO BE PUBLISHED IN THE GAZETTE OF INDIA IN PART-I SECTION-I) NO.2/21/2002-BM GOVERNMENT OF INDIA MINISTRY OF WATER RESOURCES New Delhi, the 13th December, 2002 RESOLUTION The Ministry of Water Resources (then known as Ministry of Irrigation) in the year 1980 formulated a National Perspective Plan for water resources development by transferring water from water surplus basins to water deficit basins/regions by inter-linking of rivers. The National Perspective Plan has two main components i.e. the Himalayan Rivers Development and Peninsular Rivers Development. The National Water Development Agency (NWDA) was set up as Society under the Societies Registration Act, 1860 in 1982 to carry out the detailed studies and detailed surveys and investigations and to prepare feasibility reports of the links under the National Perspective Plan.
2. NWDA has, after carrying out detailed studies, identified 30 links for preparation of feasibility reports of 6 such links. The various basin States have expressed divergent views about the studies and feasibility reports prepared by NWDA. With a view to bringing about a consensus among the States and provide guidance on norms of appraisal of individual projects and modalities for project funding etc. the Central Government hereby sets up a Task Force.
9(i) Al the capital and revenue expenditure required to be incurred by the Task Force shall be borne by the Central Government through the grants-in-aid to National Water Development Agency.
(ii) National Water Development Agency will account for expenditure of the Task Force as a part of its establishment expenditure and would provide such other secretarial/ministerial assistance as may be required. Audit of Controller General of Accounts and Comptroller and Auditor General of India would be incident on such expenditure in the same manner as it would be National Water Development Agencys other usual expenditure.
15. From above it is clear that Task Force was to be provided the secretarial/ministry assistance by NWDA, therefore, if applicant, who was working as Administrative Officer in NWDA, was posted with Task Force, it cannot be termed as illegal.
16. As far hierarchy is concerned, that is also reflected in the chart annexed by the respondents (page 75 at 78) which clearly shows that there were two UDCs and one superintendent below the Administrative Officer so naturally he was required to supervise their work. The Administrative Officer in turn was to report to Dy. Director (HQ) Shri Jabbar Ali, so naturally he would be the initiating officer for applicant. Moreover, no substantive allegations of mala fides have been made against Shri Jabbar Ali, therefore, it is wrong to suggest that Shri Jabbar Ali was not competent to write his CR nor the report given by Shri Jabbar Ali can be stated to be mala fide as no foundation has been laid for proving mala fides against him.
17. As far as reviewing officer is concerned, it is noted that the only ground taken by applicant was that at the time of submitting his resume, applicant had requested the Secretary on 26.9.2005 (page 36) that his CR should not be reviewed by Shri K.P. Gupta as he had made unanimous complaints against the applicant using unparliamentary language but neither any evidence has been brought on record to prove why Shri K.P. Gupta would be biased against the applicant nor any foundation is laid down.
18. Law on the point of mala fide is well settled now. In the case of E.P. Royappa vs. State of Tamil Nadu reported in AIR 1974 SC 555, it was held as under:-
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. In view of above not only proper foundation is required to be laid down by giving the instances as to why the other person would be biased against the applicant but it has to be proved also. Mere bald statement of mala fides is not sufficient. It is also noted that Shri K.P. Gupta is three levels above applicant. No evidence has been produced to show why Shri K.P. Gupta would write unanimous complaint against the applicant, therefore, it cannot be accepted that reviewing officer Shri K.P. Gupta was biased against the applicant nor can it be accepted that he was not competent to review applicants ACR.
19. In fact in the entire OA applicants grievance seems to be against one Shri K.P. Sood but he has neither initiated his CR nor reviewed it, therefore, reference to the facts why Shri Sood would be inimical to the applicant, is not relevant in the present case. In any case as per applicants own saying he has challenged Shri Soods appointment in separate proceedings so we are not required to look into that aspect of the matter. We have gone through the entire OA and find there is only one paragraph wherein applicant has referred to Shri K.P. Gupta but apart from making bald allegations, no evidence has been brought on record against Shri K.P. Gupta, Superintending Engineer, therefore, contention of mala fides is rejected.
20. We find in the self resume submitted by the applicant he had specifically written that practically there was no work entrusted to the applicant. Moreover, Secretary, TF ILR had also written to DG, NWDA that the services of Administrative Officer was not required in TF ILR, therefore, his services should be utilized elsewhere. He had also written 3 cases were processed by him apart from other works entrusted to him from time to time. The above paragraph clearly shows that applicant may not have been burdened with work but he was given some work. Ability of a person can be assessed on the basis of some work also. However, whether applicant was assigned work or not can only be answered by those officers under whom he was posted. Shri Jabbar Ali has been impleaded by name but he has not filed any reply, therefore, it is for the authorities to apply their mind on this aspect.
21. Since applicant had submitted his CR would be spoiled by Shri K.P. Gupta, we had directed the respondents to produce his CR. Respondents have produced his CR from 26.6.2004 to 16.1.2005. In this CR applicant has been assessed as Average by the reporting officer, which has been agreed to by the reviewing officer. Grading of average is definitely not complimentary and it would come in his way for further advancement in career. It is stated by the applicant that he had requested for supplying him the CR but his request has been rejected.
22. At this juncture it would be relevant to quote from the latest judgment of Honble Supreme Court in the case of Dev Dutt vs. Union of India & Ors., decided on 12.5.2008 wherein it has been held as under:-
14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a `good' or `average' or `fair' entry certainly has less chances of being selected than a person having a `very good' or `outstanding' entry.
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19. In our opinion, every entry in the A.C.R. 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 ..
22. In U.P. Jal Nigam's case (supra) there is only a stray observation "if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading". There is no discussion about the question whether such 'good' grading can also have serious adverse consequences as it may virtually eliminate the chances of promotion of the incumbent if there is a benchmark requiring 'very good' entry. And even when there is no benchmark, such downgrading can have serious adverse effect on an incumbent's chances of promotion where comparative merit of several candidates is considered.
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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 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 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 communication 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 19 the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
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40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
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41. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368. But they will apply to employees of statutory authorities, public sector 20 corporations and other instrumentalities of the State (in addition to Government servants).
23. In view of above judgment the note dated 17.4.2008 is not sustainable in law. The same is accordingly quashed and set aside. Respondents are directed to provide copy of CR from 26.6.2004 to 16.1.2005 and 01.4.2005 to 31.3.2006 to the applicant within one month from the date of receipt of a copy of this order so that he may make proper representation to the authorities.
24. With the above directions, OA stands disposed off. No costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI) MEMBER (J) VICE CHAIRMAN (A) Rakesh