Indian Kanoon - Search engine for Indian Law

4. Mr.N.R.Chandran and Mr.Vijaynarayan, learned Senior Counsels appearing for the petitioner, assailing the Order of the Tribunal, contended that the finding of the Tribunal, viz., assessment beyond 3 to 6 months' period should not be countenanced, is not supported by any legal principle or statutory Rule or Order. According to them, ACR being vital document for advancement in the service career of a Government Servant and the same being written by the superior officers, viz., reporting officer, reviewing officer and accepting officer; and in view of the fact that the Government servant has no role in the matter of writing of the ACR; to hold that belated ACR should not be taken into account to consider the claim of the Government servant would violate his fundamental right guaranteed under Article 16 of the Constitution of India. In other words, according to them, because of the delay on the part of the higher officials, the service career of a Government servant should not be let affected. Both the counsels further contended that, having supported their own orders before the Tribunal, the present stand of the Government of India and the State Government that the Tribunal's order was right and a belated ACR ought not to have been taken into account is not tenable. According to them, inasmuch as the Tribunal directed the authorities to go through the entire process of preparation of panel for the year 1994-1995 afresh, which was confirmed by the Supreme Court, it necessarily follows that the Supreme Court approved all the findings and directions of the Tribunal and, therefore, the proceedings for preparation of 1994-95 panel should be done de novo without any limitation. They further submitted that the principles of res judicata and constructive res judicata would not apply to the cases on hand. Inasmuch as the directly recruited DSPs and IPS Officers are recruited under different streams of Rules against different vacancies, both are mutually independent and appointment of one stream cannot prejudice others. According to them, the applicants in the Original Application/R-1 in these Writ Petitions have no locus standi to challenge the notification dated 30.01.2004 as they were not qualified to be included in the panel as promotees and they came to be appointed to the service through a different stream. With regard to the ACR for the period between 01.04.1993 and 15.07.1993, as per the information furnished by the UPSC, the same had not changed the grading from 'good' to 'very good' but it is the ACR for the period 1992-1993 that had changed the grading from 'good' to 'very good', and, as a result of the overall assessment, the petitioner has been correctly included in the 1994-95 Select List, hence, the entire order of the Central Administrative Tribunal becomes erroneous and is liable to be set aside. They also contended that a person in compulsory wait is deemed to be on duty and, in this case, the petitioner was assisting his senior officers. Inasmuch as the period of compulsory wait was regularised as duty vide G.O.Rt.No.2994 Home (Police-II) Department, dated 14.10.1973, the Tribunal ought not to have rejected the assessment of ACR for the said period. Finally, it is contended that the re-evaluation of the committees' findings by the Court is not permissible unless they are made contrary to the Rules or where an allegation of mala fides and bias against the committee members is alleged.

Aforetiarari UPSC also cannot be permitted to defend their action once again before Court since they also, by not agitating the matter by filing writ petition against the impugned order of the Tribunal, deemed to have submitted to the said order. No doubt, they are entitled to place the records and point out the factual and legal position.

35. Finally, now let us consider the assessment made during the period between 01.04.1993 and 15.07.1993. It is not in dispute that the petitioner was on compulsory wait during the said period and, for this period, he was rated as outstanding. Learned counsel for the respondents heavily commented that the said fact raises serious doubt about the authenticity of the ACR. When the Writ petitioner was on compulsory wait, as ordered by the Government, he was not performing duties during this period. As we observed in the earlier part of our order, the objective of the ACR is to assess the performance of the Officer and when in law there was no performance of any official duty from 01.04.1993 to 15.07.1993 by the Writ petitioner there would no question of any ACR and it was therefore noted on the earlier occasion that it was not available. In this regard, it is brought to our notice by the learned Senior Counsels appearing for the petitioner that a person on compulsory wait is deemed to be on duty and in this case, according to them, he was assisting his senior officer. It is also brought to our notice that the period of compulsory wait was regularised as duty vide G.O.Rt. No.2994 Home (Police II) Department, dated 14.10.1993. In such circumstances, according to them, the said document viz., ACR for the period 01.04.1993 and 15.07.1993, is not a questionable document, and the Tribunal eschewed the same only on the ground that it was belated. It is also highlighted by the learned Senior Counsels that the petitioner was on compulsory wait in the then Dindigul Anna District from 08.04.1993 to 07.07.1993 as per the orders of the DGP, vide proceedings dated 05.07.1993. It is also submitted that, pursuant to the same, the petitioner was directed to remain at Dindigul for further postings where he had to wait for more than 3 = months. The officers, who are on compulsory wait, have to carry out the instructions of their immediate seniors. According to the learned Senior Counsels, the Superintendent of Police, Dindigul, utilized the services of the petitioner and assessed his performance as outstanding for the good work alone. It is further pointed out that since that period was considered as duty as per G.O.Rt. No.2994, dated 14.10.1993, communicated in C.O.Endt.Rc 6663/GBII (1) 93, dated 04.11.1993, an assessment is necessary for a period more than three months and hence the reporting officer rightly initiated the ACR, in such circumstances, it is pointed out that it is not correct to say that the same is against the Rules.

36. On the other hand, it is pointed out on the side of the respondents that an Officer on compulsory wait cannot be drafted to any duty by way of assistance to the superior officer since the reporting authority (Mr.Shailendara Babu, IPS) formerly Superintendent of Police, Dindigul, had stated that the writ petitioner assisted him in his work. It is further pointed out that according to the orders of compulsory wait, the officer is not assigned any duty and he has to remain in the headquarters and should not leave without prior permission. It is also brought to our notice that the petitioner was placed under the charge of a different officer ie., DIG (Admn.), in such circumstances, it was pointed out that the so called ACR of the writ petitioner for this period can only be said to be a suspecious document which was brought into existence for the first time to boost up the claim of the writ petitioner when the matter had to be considered afresh pursuant to the orders of the Tribunal, confirmed by the Supreme Court. As rightly pointed out, the Select Committee did not indicate as to the nature of the ACR and as to how the said ACR for a limited period and which was stated to be not available for certain reasons came into existence subsequently. Though it is stated that only during the period between 01.04.1993 and 15.07.1993, the petitioner was rated as outstanding, as rightly pointed out by the Additional Solicitor General and the Advocate General, when he was placed on compulsory wait, it is not understandable as to how he was rated as outstanding for the said period.

Further, the rating given to the petitioner, on the basis of the assistance rendered by him to his superior officer during the period he was placed on 'compulsory wait' cannot be taken as a relevant factor in making a positive entry that too as 'outstanding' in the ACR, and such entry cannot be permitted to stand as a base to push back other Officers, whose entries and ratings do not stem from such root and who are standing ahead in the row by way of seniority and other relevant aspects. Even by applying simple logic, it can be inferred that it is a clear case of boosting up the cause of the petitioner as otherwise there would not have been such denials and rebuttals, in that, the State Government denies the forwarding of additional material while the UPSC struggles to confirm the receipt of the same from the Government. A person put on compulsory wait and not assigned with works involving his independent opinion and action, cannot be equated with others, and the grading given to him for such period as outstanding cannot be allowed to be used as a source to overtake others and to deprive them of their legitimate expectation and right regarding promotion. Had the committee made its own assessment and awarded appropriate grading on the basis of all relevant aspects relating to the petitioner independent of the so called additional/extraneous documents, our view would have differed.