Central Administrative Tribunal - Delhi
Shri M.K. Mirani vs Union Of India Through Secretary on 1 July, 2013
Central Administrative Tribunal Principal Bench OA No. 105/2013 Reserved on: 25/04/2013 Pronounced on: 01/07/2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) Shri M.K. Mirani Chief Commissioner of Income Tax-IV, 3rd Floor, C.R. Building, I.P. Estate, New Delhi 110 002. Applicant (By Advocate: Shri Padma Kumar S.) Versus 1. Union of India through Secretary, Ministry of Finance, Deptt. of Revenue, New Delhi. 2. The Secretary, Ministry of Finance, Deptt. of Revenue, New Delhi. 3. Ms. Deepa Krishan, Member, CBDT, Ministry of Finance, Deptt. of Revenue, New Delhi. 4. Ms. Parvinder S. Behuria D/o Late Brig Hardial Singh, R/o C-1/9, Humayun Road, New Delhi. Respondents (By Advocate: Sh. Maninder Singh, Sr. Advocate with Mrs. P.K. Gupta & Ms. Shaheen Parveen) O R D E R By Justice Syed Rafat Alam, Chairman:
The instant Original Application is directed against the impugned Communication dated 27.11.2012 whereby the respondents have communicated the reasons for rejecting the representation of the applicant dated 14.11.2011 made against his ACRs communicated to him vide letter dated 04.01.2011. The OA is further directed against the order dated 23.03.2012 by which the Revenue Secretary has actually rejected the representation, as being illegal, invalid and, therefore, non est in law.
2. Applicant has sought the following relief(s):
a. Pass an order setting aside the order dated 23.03.2012 whereby the respondents have rejected the representation dated 14.01.2011 made by the applicant against the impugned ACR as being illegal;
b. Pass an order setting aside the ACR of the applicant for the period 200607 as being invalid and non-est and direct the respondents to expunge the same from the profile of the applicant;
c. Direct the respondents to hold a Review meeting for selection by the Committee of Secretaries by considering the 10 ACRs of the applicant which will now include the ACR of 2000-01 and by the expunging the ACR of 200607 as non-est and grant consequential benefits of seniority etc in case he empanelled for the post of Member CBDT;
d. Pass such other order(s) which the Honble Tribunal deems fit and proper in the facts and circumstances of the case.
3. The applicant is admittedly working as Chief Commissioner of Income Tax-IV in the Department of Revenue, Ministry of Finance. On 04.01.2011, the Department of Revenue communicated the ACRs for 10 years from 1998-99 to 200809. Out of these, the ACRs for the year 199899, 200001 and 200607 were below benchmark. The applicant submitted a representation dated 14.01.2011 to the Respondent No.2 for upgrading the three ACRs to the benchmark of Outstanding which was allowed in respect of the two ACRs for the year 1998-99 and 2000-01 leaving the ACR for the year 2006-07 to the present grading of Very Good. The grievance of the applicant relating to the ACR for the year 200607 is that his ACRs had been initiated by his Reviewing Officer, who had no direct contact with the applicant and, thus, was not in a position to evaluate his performance. Moreover, the relevant ACR for the year 200607, which had been so recorded, had not been endorsed by the next superior authority and was, therefore, non-est as being One Man Report as per the DoPT guidelines. When the applicant failed to get any response from the respondents over his representation, he submitted a reminder on 13.06.2011 followed by several others. In the meantime, the respondents commenced the process for selection to the post of Member, Central Board of Direct Taxes. Three officers were selected out of a panel prepared for this purpose. The applicant had also applied for the post of Member, CBDT but he was not empanelled for the same. Feeling aggrieved, the applicant submitted an application under the Right to Information Act, 2005 and the reply whereof communicated that the representation of the applicant had been considered by the Revenue Secretary and the decision taken in this regard has been appended to the respective ARCs of the applicant. The applicant claims that the respondents had not communicated the reasons for the decision taken by them in respect of ACR for the year 2006-07. The applicant whereupon submitted another representation vide his communication dated 20.10.2012 to the Secretary, Department of Revenue reiterating his earlier request for ACR for the year 2006-07 as invalid in view of the DoP&T instructions on this point. On 02.11.2012, there was a communication from the Under Secretary/CPIO informing the applicant that his ACRs for the year 1998-99 and 2000-01 had been upgraded as per his request. However, at the same time his request to treat the ACR for the year 2006-07 as Outstanding or alternatively to treat the period as No Report Period has been rejected along with three certificates. As regards, his request for ACRs pertaining to other candidates selected, it had been intimated to the applicant that the ACR gradings of other parties could not be communicated to him being third party information. The applicant subsequently filed OA No. 3826/2012 seeking directions for communication of the order dated 23.03.2012 passed on his representation dated 14.01.2011 regarding his ACRs. This Tribunal disposed of the aforesaid OA vide its order dated 20.11.2012 with a direction to the respondents to communicate the said order to the applicant within a period of ten days. The information provided under the Right to Information Act further reveals that the applicant had secured total of 91 points on the basis of the ACRs earned by him during ten years period under consideration.
4. Since the two ACRs in question i.e. 1998-99 and 2000-01 have already been upgraded, no grievance, therefore, subsists for the applicant in that regard. The sole grievance of the applicant is now concentrated on the ACR for the year 2006-07 wherein his plea has not been accepted. The arguments of the applicant is that the offending ACR for the year 2006-07 had not been written by the Reporting Officer but had been initiated directly by the Reviewing Officer. One MN Verma, CCIT, Jaipur, who was the Reporting Officer for the period 01.04.2006 to 30.11.2006 had retired and none of the other officers, whose names find mention in the confidential reports of the IRS officers of the level of Commissioner of Income Tax, had supervised the work of the applicant for a period of three months or more. As per the O.M. of DOP&T dated 23.09.1985 where there is no Reporting Officer with the requisite experience to initiate the report, the Reviewing Officer himself may initiate the report as a Reporting Officer provided the Reviewing Officer has been the same for the entire period of report and he is in a position to fill in the columns to be filled in by the Reporting Officer. However, where a report was initiated by the Reviewing Officer, it would have to be submitted by him to his own superior for review. The DoP&T further provides that the confidential report of every employee should contain the assessments of more than one officer in order to have complete picture except in cases where there is only one supervisory level above the officer reported upon. The confidential report should be written by immediate superior and should be submitted by the Reporting Officer to his own superior. The applicant had been posted as Commissioner of Income Tax (CIT), Jaipur and his reporting officer was the Chief Commissioner of Income Tax (CCIT), Jaipur, reviewing officer being a Member of CBDT. However, admittedly there was no reporting officer with requisite experience to initiate the report of the applicant and under such circumstances, the reviewing officer can initiate the report provided he has been the reviewing officer for the entire period of the report and that the report must be endorsed and reviewed by an officer superior to such a reviewing officer. One RR Singh, who was a Member, CBDT and reviewing officer of the applicant initiated the ACR for the year 2006-07 on 26.07.2007. However, he did not submit it for further review to the next superior officer i.e. the Chairman, CBDT. The applicant has challenged this act on the ground that RR Singh was not the reviewing officer for the entire period of report as he was Member, CBDT only for about 7 months and in the second place, it became a one man report inasmuch as it had not been reviewed by the Chairman, CBDT in violation of the DoPT guidelines. Hence, this report has to be considered as non est. The Selection Committee in its meeting held on 04.07.2012 considered ten years ACRs profile of the applicant which is rendered illegal on this count.
5. The learned counsel for the applicant also submits that the said RR Singh, reviewing officer deemed as reporting officer had never had any direct contact with the applicant and had not visited Jaipur even once. Hence, the assessment of Very Good given by him was only on the basis of presumptive knowledge and not on the basis of actual performance of the applicant which he himself considers to be Outstanding. The learned counsel for the applicant has also drawn the attention of the Tribunal to the fact that despite having one ACR below benchmark, he had secured 91 points. Learned counsel for the applicant further contends that an Outstanding grading carries 10 points whereas a Very Good grading carries 8 points and now when the applicants ACR for the year 2000-01 has been considered as Outstanding, his total climbs up to 93 points, which may be more than the points secured by other candidates.
6. The learned counsel for the respondents has opposed the Original Application on the ground of non-joinder of such Members of the CBDT, who were appointed during the year 2012-13. Since they have also become stakeholders and their interest would stand to be adversely affected, it was necessary on the part of the applicant to have impleaded them in the array of party. It is an admitted position that the applicant during the year 2006-07 worked as CIT-II under four different CCIT i.e. (i) M.N. Verma from 01.04.2006 to 30.11.2006; (ii) A.J. Majumdar from 01.12.2006 to 08.01.2007; (iii) Vijay Ranjan from 08.01.2007 to 28.03.2007; and (iv) S.C. Kapil from 28.03.2007 to 31.03.2007. The respondents have referred to DoPT OM dated 20.05.1972 which requires that the Reporting Officer should have at least three months experience to base his report on the officer reported upon. One M.N. Verma, CCIT worked as the supervisory officer of the applicant from 01.01.2006 to 30.11.2006. However, the applicant submitted his resume only on 12.06.2007 and was, therefore, rightly reported upon by one Rao Ranvijay Singh, the then Member, CBDT who had been the reviewing officer of the applicant on 26.07.2007. One Ms. Indira Bhargava, the then Chairman, CBDT retired on 31.05.2007 and could not have reviewed the ACR of the applicant. The respondents have accused the applicant of deliberately submitting his resume late in order to avoid the scrutiny by the then CCIT M.N. Verma and the Chairman, CBDT. In the second place, learned counsel for the respondents has further argued that in the initial stages of his representations, one being dated 14.01.2011, the applicant has not challenged the ACR as non est. He rather simply wanted that the Very Good grading given to the applicant should be revised to Outstanding. In the third place, the respondents have contested the demand for treating the ACRs as non est. The DoPT guidelines provide for issue of no report certificate/no review certificate if there is no reporting officer/reviewing officer who supervised the work of the officer reported upon. As admitted by the applicant himself, RR Singh, Member, CBDT had supervised his work for more than 7 months in the year 2006-07 and was competent to report his ACR. In the fourth place, the respondents have seriously contested the stand of the applicant that RR Singh had no contact with the applicant and was thus not competent to review his work.
7. We have carefully gone through the pleadings of the rival parties, the documents submitted by them and have also listened to the oral submissions made by their respective counsels and on the basis thereof, the following issues emerge for consideration:-
Whether the fact of not impleading others as party serves to defeat the claim of the applicant?
Whether R.R. Singh, Member, C.B.D.T was competent to initiate the ACRs of the applicant under the DoPT guidelines?
Whether the late submission of the confidential report bars the applicant from taking the plea that the Reviewing Officer was not competent to initiate his ACRs?
Whether the ACR in question is a One Person Assessment and as such is not liable to be considered?
Whether the case of the applicant is entitled to be considered by a Review Committee as a consequence of upgradation of the applicants ACR for the year ending 2000-01?
What relief can be granted to the applicant?
8. Insofar as the first issue is concerned, it has been pleaded by the learned counsel for the respondents that the applicant has sought a review of the meeting of the Committee held for the purpose of empanelment of officers to be selected as Member, CBDT. The claim of the applicant is that in case his ACR for the year 2006-07 is declared null and void, he is likely to be selected and appointed as Member, CBDT. However, the stand of the respondents is that since the applicant has not impleaded the officers who have already been appointed as Member, CBDT during 2012-13 being necessary parties, his claim is liable to be dismissed on this ground alone. Two facts stand out here. One is that admittedly in case the offending ACR for the year 2006-07 is declared non est, the same will make the applicant entitled for inclusion of his name at the right place of seniority in the panel prepared. However, it is also to be admitted that the rights of some other persons will stand affected. Hence, this appears to be a case of non-joinder of necessary parties. We would proceed to examine that whether the non-joinder of the parties would be deemed to abort the case of the applicant at this very stage or that it needs to be examined further. In case of Savita Garg (Smt.) versus Director, National Heart Institute [2004(8) SCC 56], the National Consumer Disputes Redressal Commission (NCDRC for short) had dismissed the original petition of the applicant on the ground of non-joinder of necessary parties. This was a case where husband of the applicant, one AK Garg had been admitted to the National Heart Institute but could not get the proper medical attention on account of negligence of the doctors ultimately leading to his death. The appellant being the wife of deceased A.K. Garg had filed a case before the NCDRC claiming damages but the same had been dismissed on account of non-impleading the attending doctors against whom the medical negligence had been alleged. The Honble Supreme Court has held that under the Code of Civil Procedure, Order I Rule 9 and Order I Rule 10, no suit shall fail because of mis-joinder or non-joinder of parties. It can proceed against the persons who are parties before the court. Even the court has the power under Order 1 Rule 10 (4) to give direction to implead a person who is a necessary party. Therefore, the Honble Supreme Court has held as under:-
Therefore, as a result of our above discussion we are of the opinion that summary dismissal of the original petition by the Commission on the question of non-joinder of necessary parties was not proper. In case the complainant fails to substantiate the allegations, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died. The hospital/Institute is not going to suffer on account of non-joinder of necessary parties and the Commission should have proceeded against the hospital. Even otherwise also the Institute had to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns on not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities.
9. In the case of S. Shanmugavel Nadar Versus State of Tamil Nadu & Another [2002(8) SCC 361], the Honble Supreme Court has gone into the effect of non-joinder of the necessary party and held that it would not come into the way of the Full Bench review of the issues involved in the case of M. Varadaraja Pillai versus Salem [85 L.W.760]. This position is further supported in the case of Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman versus M/S Ponniamman Educational Trust represented by its Chairman/Managing Director [JT 2012(6) SC 149], wherein the Honble Supreme Court has held that it was for the trial court to exercise its powers under Order 7 Rule 11 of the Code of Civil Procedure at any stage of the suit either before registering the plaint or after issuance of the summons to the defendants or at any time before conclusion of the trial. When the plaintiff himself persists in not impleading a necessary party in spite of the objection, the consequences of non-joinder may follow. The issue of non-joinder could not, however, be raised for the first time before the Honble Supreme Court. In the instant case, one finds that respondent no.3 Ms. Deepa Krishan, Member CBDT and respondent No.4 Ms. Parvinder S.Behuria have been impleaded in their personal capacities. Here, we would like to draw a distinction between the necessary and proper parties. Were we to agree with inclusion of the name of the applicant in the select list, it would imply that some other persons would be moved out. Therefore, the persons affected are proper party and should have been impleaded as the party respondent. However, in the same breath, we hold that though two private respondents have been impleaed in this case, yet the court has the option to direct impleadment of such other person(s), who may be affected. However, having not issued this direction under Order 7 Rule 11, it is in the fitness of things that a case could be decided on its substantive merit. This lacuna notwithstanding. We also have to point out in this regard that all the provisions of Code of Civil Procedure are not fully applicable to the Tribunal, which has a good deal of flexibility in procedural matters. Hence, we hold that having heard the arguments in detail, it becomes necessary that the issues along with other issues, collaterally raised, should also be decided.
10. Insofar as issue no. 2 is concerned, we have relied upon the Circular of the Government of India in this regard. We have already dealt with the admitted position in this case. One MN Verma, who was CCIT from 01.04.2006 to 30.11.2006, was the immediate superior of the applicant. However, after retirement of MN Verma, there was no officer who had supervised the work of the applicant for three months or more. Therefore, there was no officer, who was competent to initiate ACR of the applicant. Admittedly, the resume of the applicant was submitted on 12.06.2007. One RR Singh, who was the Member, CBDT had been there for seven months for the period under report, recorded the ACR of the applicant in question on 26.07.2007 awarding the grading of Very Good. Rule 10 of the orders as contained in OM dated 23.09.1985 provides:-
10. When there is no Reporting Officer having the requisite experience.- A question has been raised as to the course of action to be adopted when, in the case of an officer, there is no Reporting Officer having the requisite experience of three months or more during the period of report, as a result of which no Reporting Officer is in a position to initiate the report. It has been decided that where for a period of report there is no Reporting Officer with the requisite experience to initiate the report, the Reviewing Officer himself may initiate the report as a Reporting Officer, provided the Reviewing Officer has been the same for the entire period of report and he is in a position to fill in the columns to be filled in by the Reporting Officer. Where a report is thus initiated by the Reporting Officer, it will have to be reviewed by the officer above the Reviewing Officer. From a plain reading of the above, three things clearly emerge. In the first place, there may arise conditions where there is no Reporting Officer having the requisite experience of three months or more during the period of the report; in the second place, in such eventuality, the Reviewing Officer may initiate the report as a Reporting Officer; and in the third place, this is subject to two conditions i.e. (i) he is in a position to fill in the columns to be filled in by the Reporting Officer implying thereby that he should have sufficient interaction with the officer reported upon so as to fill in all columns; and (ii) the Reviewing Officer has been the same for the entire period of the report. Here, there is a contest over these provisions. The applicant has asserted that the Reviewing Officer had only worked with him for only seven months and not for the entire period of the report. Moreover, he did not have sufficient interaction with the applicant so as to fill in all columns of the report. Therefore, according to the applicant, R.R. Singh was not competent to act as the Reporting Officer. On the other hand, the learned counsel for the respondents has vehemently argued that if this interpretation of the applicant were to be accepted, not very many ACRs would get written. If three months are sufficient for writing the ACRs by the Reporting Officer then why it is the entire period of the report for the Reviewing Officer to act in the capacity of the Reporting Officer. Assuming that the Reporting Officer was there, still the Reviewing Officer would have been there to review the ACR, which is the continuation of what the Reporting Officer has written. In that case also, it is valid for the entire period. If this logic were to be extended, then the report written by the Reporting Officer would only be valid for a period of three months for the reason that he has supervised his work for three months only. This is not the intention of the framers of these guidelines. The learned counsel for the respondents has further submitted that the instant set of instructions are not the rules framed under Article 309 of the Constitution of India but are only the guidelines lacking the sanctity of the Rules. Hence, these are only to be understood in the spirit of harmonious construction that the Reviewing Officer is competent to review the ACR whether he has served for more than 3 months provided for the Reporting Officer. Therefore, we hold that there was nothing wrong in initiating the ACR of the applicant by the Reviewing Officer.
11. Insofar as the third issue is concerned, it is an admitted position that the Government have prescribed a Time Schedule for recording of ACRs and the follow up procedure, which reads as under:-
TIME-SCHEDULE FOR PREPARATION OF CONFIDENTIAL REPORTS 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.
-18 Where self-appraisal by officer reported upon is prescribed.
-19 Where self-appraisal by officer reported upon is not prescribed.
-20 Where officer reported upon is himself a Reporting Officer for subordinates under him.
7th May 21st April 22nd May 4 Report to be completed by Reviewing Officer and sent to Administration or CR Section/ Cell. 23rd May where the due date for the Reporting Officer is 7th May.
7th May where the due date for the Reporting Officer is 21st April 5th June where the due date for Reporting Officer is 22nd May.
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.
14. Insofar as the fourth issue is concerned, it is an admitted position that the ACR in order to be valid, Order 3 of the OM dated 28.05.1972, which still holds good emphasizing the general procedure, reads as under:-
3. Objectivity in confidential reports and assessment at more than one level.- In order to minimize the operation of the subjective human element and of conscious or unconscious bias, the confidential report of every employee should contain the assessments of more than one officer except in cases where there is only one supervisory level above the officer reported upon. The confidential report should be written by the immediate superior and should be submitted by the Reporting Officer to his own superior.
While it might be difficult for the higher officer to get to know a large number of employees two grades below him, his overall assessment of the character, performance and ability of the reported officer is vitally necessary as a built-in corrective. The judgment of the immediate superior even though completely fair in its intent might sometimes be too narrow and subjective to do justice to the officer reported upon. The officer superior to the Reporting Officer should, therefore, consider it his duty to personally know and form his own judgment of the work and conduct of the officer reported upon. He should accordingly exercise positive and independent judgment on the remarks of the Reporting Officer under the various detailed headings in the form of the report as well as on the general assessment, and express clearly his agreement or disagreement with those remarks. This is particularly necessary in regard to adverse remarks (if any) where the opinion of the higher officer shall be construed as the correct assessment.
The Reviewing Officer is free to make his remarks on points not even mentioned by the Reporting Officer. Such additional remarks would, in fact, are necessary where the report is too brief, vague or cryptic.
15. It is to be further admitted that since the applicant submitted his resume on 12.06.2007 and one Ms. Indira Bhargava, who was the then Chairman, CBDT, demitted office due to superannuation on 31.01.2007, and next superior authority was Rao Ranvijay Singh. The fact stands that this is a one person assessment and, therefore, on face of it, is not tenable.
16. Having held this, we also fall back upon the previous paragraphs to examine the issues in continuity. Here, a reference has to be made that the issue of recording of ACR had been considered in a number of cases earlier by Courts including this Tribunal. In the case of Ms. Swati S. Patil versus Union of India & Others [OA No. 2033/2010 decided on 11.02.2011], the grievance of the applicant was that her ACR for the year 2003-04 for promotion, in which she had been given Good grading was below benchmark. This ACR had not been reviewed by the Reviewing Authority and had also not been accepted by the Accepting Authority and it had been written only at one level of the Reporting Authority. The Tribunal, while referring to its earlier decisions in the matters of Ashok Kumar Aneja Vs. Union of India and Others [OA No.24/2007 decided on 20.11.2008) and Balvinder Singh Versus Union of India and Others [OA No. 253/2009 decided on 26.03.2010], held that the ACR should be reported upon by the superior officer of high rank and reviewed by an officer of still higher rank and where the ACR is not recorded at least at two levels, it is incomplete. This case was challenged in WP(C) No. 4018/2011 before the Honble High Court of Delhi wherein the Honble High Court considered the cases of Abhijit Ghosh Dastidar Vs. Union of India & Others [2009 (16) SCC 146] and Dev Dutt Vs. Union of India & Others [2008 (8) SCC 725]. The Honble High Court having considered these two cases along with others dismissed the Writ Petition while agreeing with the Tribunal. However, the point to be considered here is that the instant case is not the one wherein the facts of the cases of Abhijit Ghosh Dastidar Vs. Union of India & Others (supra) and Dev Dutt Vs. Union of India & Others (supra) are attracted. We need to trace the history as to how the law relating to ACR developed over the course of the years. The accepted practice and instructions were that the only adverse ACRs needed to be conveyed to the officer reported upon and not the other ACRs including those which were below benchmark. The fact that the remarks in the ACR being confidential in nature would imply that there was certain confidentiality attached to it. This position was upheld in the case of U.P. Jal Nigam vs. Prabhat Chandra Jain [1996 (2) SCC 363] by observing 3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect and adverse element compulsorily communicable, but 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. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. This was one of the first departures, which was made from the established practice.
17. In the case of State of U.P. versus Yamuna Shanker Misra and Another [1997 (4) SCC 7], the adverse remarks were recorded for three years in the confidential report of the appellant and as a consequence he was not promoted. The Tribunal quashed the adverse remarks on the basis that the remarks recorded in the ACR would smack of arbitrariness and subsequently affirmed by the Honble High Court. In this regard, the Honble Supreme Court held as under:-
7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
18. Now, we take the landmark judgment in the case of Dev Dutt Vs. Union of India & Others (supra). The appellant was an Executive Engineer in the Border Roads Engineering Service eligible to be considered for promotion to the post of Superintending Engineer on completion of five years of service in the grade of Executive Engineer, which he admittedly completed on 21.02.1993. The DPC held on 16.12.1994 promoted his junior while he was denied promotion as he had only Good entry in one of the five years under consideration i.e. ACR for the period 1993-94. The plea taken by the applicant in this case was that had his entry been conveyed to him, he would have an opportunity of making a request for upgradation for the entry from Good to the benchmark and if his request had been allowed, he would have also become eligible for promotion. Hence, the applicant has pleaded violation of the principles of natural justice. Relevant part of the judgment is reproduced as under:-
17. In our opinion, every entry in the A.C.R, of a public servant must be commu-nicated 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, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Consti-tution.
18. Thus it is not only when there is a bench-mark 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 the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.
19. Learned counsel for the respondent has relied on the decision of this Court in U. P. Jal Nigam vs. Prabhat Chandra Jain AIR 1996 SC 1661. We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) which has held that all State action must be non-arbitrary, otherwise Article 14 of the Constitution will be violated. In our opinion the decision in U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle that entries need not be communi-cated. As observed in Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani AIR 2004 SC 4778 (vide para 9) :
"Observations of Courts are neither to be read as Euclid's Theorems nor as provi-sions of the statute, and that too, taken out of their context".
xxx xxx xxx xxx
34. Originally there were said to be only two principles of natural justice :
(1) the rule against bias and (2) the right to be heard (audi alterant pattern).
However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India, AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.
35. Thus natural justice has an expanding content and is not stagnant. It is there-fore open to the Court to develop new principles of natural justice in appropriate cases.
19. Now, we take the case of Abhijit Ghosh Dastidar Vs. Union of India & Others (supra) which flows out from Dev Dutts case (supra). The appellant was Post Master General eligible to be promoted to the post of Chief Post Master General. However, his case was considered by the DPC on 15.12.1999 and 20.02.2001 but he was not found eligible for Higher Administrative Grade-A. The respondent-department alleged that the applicant was not considered because the remarks in his two ACRs were below benchmark as Good. Admittedly, the remarks had not been communicated to the appellant. The Honble Court relied upon the decision in the case of Dev Dutt (supra) to hold that the non-communication of such entries was arbitrary and in violation of Article 14 of the Constitution of India. In this case, the appellant had retired and the Honble Supreme Court relying upon the judgment in Dev Dutts case (supra) directed that the appellant should be promoted w.e.f. 28.08.2000 when the person immediate junior to him had been promoted. This position more or less stands. It is only recently that an SLP (C) No.15700/2009 in the case of Union of India versus A.K. Goel has been admitted by the Honble Supreme Court vide its order dated 29.03.2010 where there is an apparent conflict between the decisions of the Honble Supreme Court in the case of Dev Dutt (supra) on one hand and decision in the case of Satya Narain Shukla Versus Union of India & Others [Appeal (Civil) No.2082/2003 decided on 11.05.2006] and K.M. Mishra versus Central Bank of India & Others [Civil Appeal No.5683/2008 decided on 16.09.2008]. However, as the matter is still under consideration of the Honble Supreme Court, nothing more is to be said about this.
20. In the instant case, the situation is quite different from the cases cited above. Admittedly, in the instant case, a below benchmark entry was recorded, which was a one level entry. However, the entry was communicated and the applicant was given opportunity to represent. His representation in respect of two entries was accepted but for the instant entry, it was declined. In detailed examination in respect of issue no.3, we have gone into the question as to how this situation has arisen. We have clearly arrived at the conclusion that this was due to the applicant not submitting his resume in time. We also held that though Reporting Officer has also defaulted in his duty in terms of order 9 of OM dated 30.01.1978 which provides that delay in submission of the confidential report should be commented upon by the Reporting Officer and further that the Reporting Officer is competent to submit his own report even without submission of resume. We refuse to accept this argument for the reason that in the first place, he submitted his resume late on 12.06.2007 i.e. by two months from the date prescribed, yet the Reviewing Officer did not make any adverse entry in his ACR. In the second place, what is more important is that by submitting his resume late, the applicant ensured that it became one level entry as both the Reporting Officer MN Verma and the Accepting Authority Ms. Indira Bhargava stood superannuated. Had it been submitted on due date, this problem would not have arisen. We are not sure whether this had been a design or inadvertently, but the result is the same. Having defaulted in this manner, we find that both the cases of Dev Dutt versus Union of India & Others (supra) and Abhijit Ghosh Dastidar Vs. Union of India & Others (supra) are not attracted to the facts of the instant case. In fact, we have no hesitation in holding that if one has omitted any of his duties, it amounts to estoppel by deed. Having once defaulted in his duty, the applicant would be estopped from taking a plea that the principle of Jus naturae proprie est dictamen rectaeration is quo seimus quid turpe quid no nestum quid faciendum quid fugiendum would apply. This issue is accordingly answered against the applicant.
21. Now we take the Issue no. 5. It is an admitted fact that two of the remarks of the applicant namely 1998-99 and 2000-01 have since been upgraded by the order of the Secretary (Revenue) vide order dated 09.04.2012. It is to be noted that order of upgradation was communicated to the applicant vide letter dated 02.11.2012 of the Under Secretary while the meeting of the DPC held on 04.07.2012. It logically flows from this that the overall points obtained by the applicant will rise above 91. It further flows that as a consequence of this, it may just be possible that the applicant could qualify to be included in the panel prepared for appointment to the post of Member, CBDT. This question has not been controverted during the course of arguments and logically deserved to be allowed. This issue is answered accordingly in favour of the applicant.
22. Insofar as issue no. 6 is concerned, we take note of the arguments proffered and denied in the above paragraphs while deciding the issue. However, we also take note of the answer to issue no.5 that we have discussed above. It has been seen that insofar as the offending ACR for the year 2006-07 is concerned, there is no escape from the fact that the submission of the statistical supplements had been delayed by the applicant to his own peril. He, therefore, should reap the consequence thereof. One who sows a wind must reap a whirlwind. So it would apply in the instant case as well. However, insofar as the other two ACRs for the year 1998-99 and 2000-01 are concerned, they have been upgraded by the competent authority. Therefore, looking to all aspects of the matter, we are of the view that the case of the applicant is required to be reviewed in spite of the other issues being answered against the applicant because of upgradation of ACRs for the years 1998-99 and 2000-01, the applicant becomes entitled to be considered. In view of the above, the OA is partly allowed with the following directions:-
1. The respondents are directed to consider the points secured by the applicant on account of upgradation of remarks in the ACRs for the period 1998-99 and 2000-01 leading to increase in the number of points and to hold a review DPC to consider his case individually as to whether he comes within the zone of empanelment.
2. Let this exercise be carried out within a period of three months from the date of production of the certified copy of this order.
3. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/