Central Administrative Tribunal - Madras
Dr. Aruna Basu Sarcar, I.F.S. Deputy ... vs State Of Tamil Nadu And Ors. on 17 March, 1999
JUDGMENT
K.S. Bakthavatsalam, Vice-Chairman
1. The applicant who belongs to Indian Forest Service in this application challenges a panel order issued by the first respondent vide G.O.Ms. No. 19, Environment & Forests (FR. Spl. A) Department dated 13.1.1998 in which the third and fourth respondents have been promoted as Conservator of Forests.
2. The applicant was directly recruited to Indian Forest Service on 9.5.1983 and was posted as Assistant Conservator of Forests. Later on 9.5.1987, she was elevated to Senior Time Scale and was posted as Deputy Conservator of Forests, The applicant was then elevated to Junior Administrative Grade on 1.4.1992 and presently she is working as Divisional Forest Officer. The applicant claims that she has served in different capacities from time to time in the Forest Department and has always rendered outstanding performance. The applicant also claims that she is placed at S. No. 47 in the Civil List of Indian Forest Service Officers Tamil Nadu Cadre. By virtue of her seniority, merit and ability, the applicant was under the bona fide impression that her name would be included in the panel for Deputy Conservatory of Forests, fit for promotion as Conservatory of Forests. Further, it is stated that the applicant was surprised to see that the third and the fourth respondents have been included in the panel who are juniors to the applicant. The applicant states that she reliably understands that because of the adverse remarks made against her in her Confidential Rolls pertaining to the years ending 31.3.1992 and 31.3.1993 by the Reporting Authority and countersigned by the Accepting Authority, her name has not been included in the panel. The applicant further states in the application that the adverse remarks pertaining to the years ending 31.3.1992 and 31.3.1993 were communicated to her in June 1995 and even the said adverse remarks were communicated in the form of loose papers, not even addressed to the applicant which violates the provisions of All India Service (Confidential Rolls) Rules, 1970. It seems the applicant has made a representation on 21.7.1995 to the first respondent for expunging the adverse remarks made by the Reporting Authority and Accepting Authority for the years ending 31.3.1992 and 31.3.1993. But no orders have been passed till the applicant has approached this Tribunal. It seems the applicant has made representations during March, 1996 and October, 1997. When there was no response from the respondents, the applicant has come before us.
3. A detailed reply has been filed by the first and second respondents (hereinafter referred to as official respondents). After referring to the procedure, it is stated in the reply that in G.O. Ms. No. 563 dated 5.7.1978 instruction's were stipulated for appointment of Indian Forest Service Officers to Selection Grade as well as Supertime Scale Post. It is a selection post based on merit-cum-seniority as per Rule 3(3) of the Indian Forest Service (Pay) Rules, 1968. The officials respondents have brought out in paragraph 4 of the reply the rules with regard to the selection. In the light of these instructions, the Screening Committee which met on 3.12.1997, adjudged by evaluating the merits, character roll record as a whole and general assessment of her work as seen from the Confidential Reports of the applicant and decided not to include her name not only in the panel of Deputy Conservatory of Forests fit for promotion as Conservatory of Forests but also for appointment to Selection Grade in the post of Deputy Conservator of Forests. It is also stated in the reply that with regard to the adverse remarks in the Confidential Reports and based on her representation for expunging the adverse remarks, the Government in G.O. Rt. No. 84, Environment and Forests (FR. Spl. B) Department, dated 4.2.1998 expunged the entries adverse remarks recorded in her Confidential Report for the period from 1.4.1991 to 31.3.1992. But in G.O. Rt. No. 85, Environment and Forests (FR. Spl. B) Department dated 4.2.1998, the Government have allowed to stand the entire adverse remarks recorded by the Reporting Authority and the Accepting Authority against the applicant in Part III, IV, V and VI of her Confidential Reports for the period from 1.4.1992 to 31.3.1993. As such, it has been taken that she has no merit to argue that the adverse remarks need not be taken into account for inclusion of her name in the panel, if included will be violative of instructions issued in G.O.Ms. No. 563, Forests and Fisheries Departed, dated 5.7.1978. It has been stated in paragraph 11 of the reply that the Government has passed orders by allowing to stand the entire adverse remarks recorded in her Annual Confidential Report for the period ended 31.3.1993. The State Government will now send the Annual Confidential Reports of the applicant to the Government of India. It is also pointed out that when she earns two more reports in her Annual Confidential Reports in future she will be reconsidered for Selection Grade as well as to Supertime Scale, that is the instructions of the Government of India.
4. In the rejoinder filed by the applicant, the applicant had referred to the provisions of All India Services (Confidential Rolls) Rules, 1970 and states that the official respondents cannot take shelter under the provisions of executive instructions issued in G.O.Ms. No. 563 dated 5,7.1978. It is also pointed out in the rejoinder that the official respondents have not replied anything about the inordinate delay in communicating the adverse remarks and in passing orders thereon. According to the applicant, the inordinate delay violates the provisions of All India Services (Confidential Rolls) Rules, 1970.
5. The learned Counsel for the applicant Mr. M. Ravi strenously contended that the adverse remarks with regard to the applicant for the years ending 31.3.1992 and 31.3.1993 have been communicated to the applicant in June 1995 and immediately the applicant, represented in July 1995, within the stipulated time. The learned counsel referred to the All India Services (Confidential Rolls) Rules, 1970, especially Rules 5,6,6-A and 7 and argued though the rules are directory and there cannot be any strict compliance of the rules and if the adverse remarks are communicated to the applicant after a lapse of many months, the period given under the rules cannot be stretched simply because these rules are directory. For this proposition the judgment of the supreme Court in State of Haryana v. P.C. Wadhwa, IPS, Inspector General of Police and Anr., (1987) 2 SCC 602, has been referred to by the learned counsel for the applicant. The learned counsel also pointed out that when the DPC met on 3.12.1997, no order has been passed on the representation made by the applicant. But only from the reply filed before us, the Government has given a reply that the adverse remarks for the period 1.4.1991 to 31.3.1992 have been expunged and for the period from 1.4.1992 to 31.3.1993, the adverse remarks were allowed to stand. As such the learned counsel for the applicant contended that the failure on the part of the official respondents to communicate the adverse remarks in time and the failure on the part of the official respondents to consider the representation of the applicant have put against the applicant and hence the applicant claims that the adverse remarks cannot be made as an impediment for inclusion of her name in the panel for promotion as Conservator of Forests. According to the learned Counsel, non inclusion of the name of the applicant in the panel is illegal and the learned counsel wants us to set aside the impugned order. Further, the learned counsel prays that the applicant's name to be considered taking into consideration the pendency of the Confidence Rolls and the representation made by the applicant. During the course of argument, the learned Counsel for the applicant produced before us a copy of order No. G.O.Rt. No. 1280 dated 12.12.1997 in which the representation made by the fourth respondent with regard to the adverse remarks recorded in the Confidential Report for the period from 1.4.1993 to 6,8.1993 has been considered and the remarks were expunged. According to the learned counsel for the applicant, if it is so the applicant's. case should also be considered. If it is a fact that the fourth respondent's representation with regard to his adverse remarks in the Annual Confidential Report was pending on the date of the Screening Committee and if it is not so, it is violative of Article 14 of the Constitution of India. It has been brought to the notice of the Tribunal while the case was heard.
6. The learned Counsel for the official respondents relying upon the reply contended that the rules and regulations have been followed by the Screening Committee and according to the merits the panel was drawn, and the Tribunal has no jurisdiction to enter into the arena as held by the Supreme Court time and again. The learned counsel for the official respondents urged that the subsequent development should be taken into account. The adverse remarks for the 1.4.1991 to 31.3.1992 have been expunged and for the period 1.4.1992 to 31.3.1993 have been allowed to stay. As such, it cannot be said that no disposal has been given to the applicant's representation with regard to the adverse remarks. With regard to the delay in communicating the adverse remarks and consideration of the representation of the applicant, the learned counsel for the official respondents argued that it depends upon the facts and circumstances of each case.
7. We have considered the arguments of the learned Counsel for the applicant and the learned counsel for the official respondents.
8. On facts there is no dispute. It is true that the applicant's name was not considered because of the pendency of representative of the Annual Confidential Reports for two years i.e. for 1991-92 and 1992-93. It is also not in dispute that the applicant has made a representation in time and it has not been disposed of till the Screening Committee met on 3.12.1997. At this point of time, it is necessary for us to look into the decision of the Supreme Court in the case of State of Haryana v. P.C. Wadhwa, IPS, Inspector General of Police and Anr., (1987 2 SCC 602) wherein the Supreme Court has considered the scope of Rules 5, 6, 6-A and 7 of All India Services (Confidential Rolls) Rules, 1970. In that case the adverse remarks have been communicated to the respondent after about 27 months after the closure of the relevant period. The respondent instead of making a representation preferred a Writ Petition before the High Court to quash the report. A Division Bench of the High Court allowed the Writ Petition. The Supreme Court while confirming the judgment of the High Court went into the scope of these rules of All India Services (Confidential Rolls) Rules, 1970. In that context the Supreme Court has held as follows:
"13. Before we part with this appeal, we may dispose of another contention of the respondent about the delay in communicating to him the impugned adverse remarks. Under Rule 5 of the Rules, a confidential report assessing the performances, character, conduct and qualities of every member of the Service shall be written for each financial year, or calendar year, as may be specified by the Government, ordinarily within two months of the close of the said year. Rule 6 provides that the confidential report shall be reviewed by the reviewing authority ordinarily within one month of its being written. Under Rule 6-A, the confidential report, after review, shall be accepted with such modifications as may be considered necessary, and countersigned by the accepting authority, ordinarily within one month of its review. Thus, the whole process from the writing of the confidential report to the acceptance thereof has to be completed ordinarily within a maximum period of four months. Further under Rule 7 the adverse remarks, if any, in a confidential report shall be communicated to the officer concerned within three months of the receipt of the confidential report. Thus, a total period of seven months has been laid down as the maximum period within which adverse remarks, if any have to be communicated to the officer concerned. It has been already noticed that the adverse remarks were sent to the respondent after two years three months, that is, after twenty-seven months of the close of the year. It is submitted by the respondent that in view of the delayed communication, the adverse remarks lost all importance and should be struck down on that ground.
14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty-seven months, it is true that the provisions of Rules 5, 6, 6-A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6-A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty-seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."
9. It cannot be disputed as a fact of that there is inordinate delay in communicating the adverse remarks for two years. The above stated principles to be applied. At any rate, subsequently the adverse remarks for the year 1991-92 have been expunged and the adverse remarks for the year 1992-93 were allowed to stand. In the circumstances, we think it is for the official respondents to convene a review DPC and consider the name of the applicant for the post of Conservator of Forests. That apart, while considering the applicant, the respondents are directed to take note of the fact that the name of the fourth respondent has been included in the panel when the Screening Committee met on 3.12.1997 though his representation for expunging the adverse remarks recorded in the Confidential Report for the period 1.4.1993 to 6.8.1993 was ordered only on 12.12.1997. This is being questioned by the learned counsel for the applicant and also the delay in communicating the adverse remarks. Whatever it may be, it is a fact that only after the G.O. has passed the adverse remarks have got expunged. So we do not understand why not the applicant can be considered on the same line as the fourth respondent was considered while his representation was pending for consideration, if it is a fact.
10. Considering the facts of this case, instead of the prayer asked for, we direct the official respondents to convene a review DPC to consider the name of the applicant for selection in the panel of Deputy Conservator of Forests fit for promotion as Conservatory of Forests. This exercise shall be carried out within eight weeks from the date of receipt of a copy of this order.
11. The O.A. is disposed of as above. No costs.