BRHAM DEEP SINGH KHARB S/O.SHIV DHAN SINGH V. UNION OF INDIA THRO ITS SECRETARY

SCA/14886/2011

AI Insights

Brham Deep Singh Kharb, an IRS officer with a permanent orthopedic disability, challenged the grading of 'Good' in his ACR for the year 2008-09, which was below the benchmark of 'Very Good'. He alleged that this grading was influenced by malice and ulterior motives as he was being considered for promotion to the post of Chief Commissioner of Income Tax (CCIT), a position reserved for physically handicapped individuals under a specific quota. The Central Administrative Tribunal dismissed his application, leading to the present petition. The High Court, after examining the arguments and evidence, upheld the Tribunal's decision, finding no basis for the claims of bias or improper influence in the grading process.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 722733 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 27-11-2013
• Assessment Year: misc
• Other Referred Cases: State of Uttar Pradesh v. Yamuna Shanker Mishra, Dev Dutt v. Union of India, Sukhdev Singh v. Union of India
• Laws Referred To: Constitution of India, 1950
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: MAUNA BHATT
• Assessee Lawyers: M S RAO
• Keywords: Departmental Promotion Committee; Extraneous consideration; Malice; Promotion; Ulterior motive; Writ of Certiorari; ACR grading; Physical handicapped reservation
• Section: 51A(j)

Judgement Text

"C/SCA/14886/2011 CAV JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14886 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Sd/­ and HONOURABLE MR.JUSTICE A.G.URAIZEE Sd/­ ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= BRHAM DEEP SINGH KHARB S/O.SHIV DHAN SINGH....Petitioner(s) Versus UNION OF INDIA THRO ITS SECRETARY & 4....Respondent(s) ========================================= Appearance: MR MS RAO, ADVOCATE for the Petitioner(s) No. 1 MRS MAUNA M BHATT, ADVOCATE for the Respondent(s) No. 5 NOTICE SERVED BY DS for the Respondent(s) No. 3 , 5 SERVED BY RPAD ­ (N) for the Respondent(s) No. 2 ========================================= CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE A.G.URAIZEE Date : 27/11/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE A.G.URAIZEE) Page 1 of 14 C/SCA/14886/2011 CAV JUDGEMNT We have heard Mr M.S. Rao, learned counsel for the petitioner and Ms Mauna Bhatt, learned counsel for the respondents. 2 The petitioner has made the following prayers in this writ petition:­ “10. In the aforesaid facts and circumstances, the petitioner most respectfully prays that this Honourable Court may be graciously pleased to: (A) issue a writ of certiorari or any other appropriate writ in the nature of writ of certiorari, calling for the records and proceedings in the OA No.153 of 2010 on the file of the learned Central Administrative Tribunal, Ahmedabad Bench, and on a perusal of the same be further pleased to quash and set aside the impugned final order dated 23.9.2011 passed by the learned Tribunal in the OA No.153 of 2010, at Annexure­I hereto; (B) be further pleased to allow the aforesaid OA No.153 of 2010 and grant all the reliefs as sought for therein; (C) pending the admission, hearing and final disposal of the present writ petition, your Lordships may be graciously pleased to an appropriate direction or order to the respondents no.1, 2 and 5 herein commanding them, their agents, representative, officers, etc., to keep vacant one post in the cadre of Chief Commissioner of Income Tax, as and when the next Departmental Promotion Committee (DPC) is convened for the purpose of recommending the cases of eligible officers for grant of promotion to the vacant posts of Page 2 of 14 C/SCA/14886/2011 CAV JUDGEMNT CCIT; (D) grant ex parte ad interim relief in terms of the prayer contained in the clause (C) hereinabove; (E) grant such other and further reliefs as may be deemed fit and proper in the facts and circumstances of the case.” 3 The facts, in nutshell, giving rise to the present petition are that the petitioner, who is suffering from permanent Orthopaedic Disability of 55%, was appointed as an IRS Officer in the year 1992. He was appointed on this post on General Category. He earned various promotions and lastly he was promoted as Commissioner of Income Tax (CIT) in the year 2002. On this post, he served at different places. The petitioner was transferred to Ahmedabad in the month of June, 2007. He approached the Central Administrative Tribunal, Ahmedabad Bench at Ahmedabad (for short, ‘the Tribunal’) by filing Original Application No.1225 of 2007 against his transfer to Ahmedabad. The authorities were directed to place the petitioner’s request before the Placement Committee to consider as to whether the petitioner could be posted at Delhi or near about station. The respondents did not accede to the application of the petitioner as a result of which the petitioner reported for duty at Ahmedabad. The petitioner, while working at Ahmedabad, was conveyed vide communication dated 29th September 2009 conveyed adverse remarks in his ACR for the year 2008­09 wherein he was graded as ‘Good’, which is below benchmark of ‘Very Good’. The petitioner filed detailed representations dated 5th October 2009 and 30th October 2009 against the said ACR entries. The representation was not accepted and vide communication dated 28th January 2010 the same was conveyed to the petitioner. The petitioner feeling aggrieved by the same has preferred Original Application No.153 of 2010 before the Tribunal. The Original Application was dismissed by the Tribunal by its order dated 23rd September 2011. Hence, the present petition at the instance of the petitioner. Page 3 of 14 C/SCA/14886/2011 CAV JUDGEMNT 4 Mr M.S. Rao, learned counsel for the petitioner has vehemently contended that the petitioner has earned grading in his Annual Confidential Report (ACR) above the benchmark grading prior to 2008­ 09 grading. He has also contended that the petitioner has put in excellent performance and all throughout in his career he has not been served with any memo or warrant as to his performance. He has very strenuously submitted that the grading of Good in ACR for the year 2008­09 by the Reporting Officer is actuated by malice, ulterior motive and extraneous consideration with a view to deprive the petitioner from promotion to next higher grade. Mr Rao, learned counsel for the petitioner has also submitted that the Reporting Officer has downgraded the grading without any rhyme or justifiable reason. His further grievance is that even the Reviewing Officer was not authorised and competent to act as Reviewing Officer as she had reviewed the grading of the petitioner after she had retired. Mr Rao, therefore, vehemently submitted that the present petition needs to be accepted and the order of the Tribunal needs to be set aside by granting reliefs as prayed for therein. 5 Ms Mauna Bhatt, learned counsel for the respondents has supported the impugned order of the Tribunal and she has further submitted that the order of the Tribunal does not suffer from any illegality. She has further submitted that the Reporting Officer has awarded the grading of Good to the petitioner on evaluation of his overall performance. According to her submission, this grading is further confirmed by the Reviewing Officer. She has placed reliance on DOPTOM dated 14th January 1993 wherein the Reviewing Officer is authorised to review the ACR of subordinate officers within one month of retirement. Her further submission is that the petitioner could not demonstrate ulterior motive or malice or extraneous considerations on the part of the Reporting Officer as well as Reviewing Officer for Page 4 of 14 C/SCA/14886/2011 CAV JUDGEMNT awarding grading of Good. Hence, according to her, there is no substance in the petition and the same is liable to be dismissed. 6 Before examining the rival arguments advanced at the bar, it would be worthwhile to consider the judgments of the Apex Court on the confidential reports. 7 In the case of State of Uttar Pradesh v. Yamuna Shanker Mishra, AIR 1997 SC 3671 the Apex Court in paragraph 7 has explained the object of writing the Confidential Reports and making entries in the character roll, which is extracted hereinbelow: “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 Page 5 of 14 C/SCA/14886/2011 CAV JUDGEMNT 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.” 8 In the case of Dev Dutt v. Union of India, (2008) 9 SCC 725 the Apex Court has held in paragraphs 17 and 18 that all grading whether “Very Good”, “Good”, “Average” or “Poor” required to be communicated to the employee, which is extracted hereinbelow: “17. 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, 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 Constitution. Page 6 of 14 C/SCA/14886/2011 CAV JUDGEMNT “18. Thus it is not only when there is a bench­mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of 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.” 9 In a very recent judgment in the case of Sukhdev Singh v. Union of India, (2013) 9 SCC 566 the Honourable Supreme Court reiterated the proposition of law expounded in Dev Dutt’s case (supra) and has observed in paragraph 8 as under: “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period.” 10 Thus, by the proposition expounded by the Apex Court in the aforesaid decision, be it adverse or not, be it excellent, outstanding, very good, is required to be communicated to the employee concerned so that Page 7 of 14 C/SCA/14886/2011 CAV JUDGEMNT he can make improvement in his performance and if he is not satisfied with the grading, he can make representation there against. In the present petition, the communication of the grading of the petitioner below benchmark is not in dispute nor the fact he made two representations, which are rejected by the Chairman, CBTD (competent authority) vide order dated 28th January 2010. 11 The first and foremost contention of the learned counsel, Mr M.S.Rao for the petitioner is that the Reviewing Officer who had already retired when she reviewed the grading of the petitioner and therefore she had no authority to review the grading of the petitioner. In support of his submission, Mr Rao has placed reliance on the Office Memorandum dated 6th January 2010, issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, which is extracted hereinbelow: “No.21011/1/2005­Estt.(A) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training ***** New Delhi, the 6th January, 2010 OFFICE MEMORANDUM Subject:­ Effect on modification/expunction of adverse remarks in the ACRs and upgradation/down­ gradation of the overall grading in the ACRs prior to the period 2008­2009. The undersigned is directed to say that instructions were issued vide O.M. Of even number dated 14th May, 2009 by which the complete APAR (previously known as ACR) including the overall grading and assessment of integrity shall be communicated to he concerned officer for representation if any, with effect from the Page 8 of 14 C/SCA/14886/2011 CAV JUDGEMNT reporting period 2008­09 which was to be initiated from 1.4.2008. Prior to that only adverse remarks in the ACR were required to be communicated for representation, if any. The then existing instructions further provided that the overall grading in the ACR should remain unchanged even after modification or expunction of the entire adverse remarks. It was left to the DPC to re­determine the overall grading if it considered that the expunction of such adverse remarks had so altered the quality of the ACR. The matter has been further considered and it has been decided that in those cases where the reckonable ACRs prior to the reporting period 2008­09 are to be considered in a future DPC on which the adverse remarks of Reporting/Reviewing/Accepting Authorities have been expunged or modified by the Competent Authority, the “overall grading” in the ACR be kept blank for appropriate re­grading by the DPCs. The existing grading shall be blocked in such cases. It has also been decided that where the authority has upgraded/downgraded the overall grading without giving sufficient reasons, the DPS shall treat such an exercise as non­est/invalid. General terms, such as “I agree or disagree with the Reporting Officer/Reviewing Officer” used by the Reviewing/Accepting Authority shall not be construed as sufficient reason for upgrading/downgrading the overall grading given by the Reporting Authority/Reviewing Authority. The proposals for the DPC where ACRs upto the reporting period 2007­08 will be taken account should specifically bring out these guidelines. 2. It is also made clear that past cases already decided will not be re­opened. (C.A. Subramanian) Director” 12. According to the submission of Mr Rao, learned counsel for the Page 9 of 14 C/SCA/14886/2011 CAV JUDGEMNT petitioner, this Office Memorandum makes it obligatory on the part of the Reviewing Officer to record sufficient reasons for either upgrading or downgrading the overall grading. The Reviewing Officer has not recorded any reasons, much less sufficient reasons for accepting the grading awarded by the Reporting Officer. This submission is without substance. The caption of the Memorandum makes it explicitly clear that it is in respect of effect on modification/expunction of adverse remarks in the ACRs and upgradation/down­gradation of the overall grading in the ACRs prior to the period 2008­2009. What this Office Memorandum contemplates is the recording of sufficient reasons by the competent authority while upgrading or downgrading the overall grading of the Officer. The Reporting Officer and the Reviewing Officer would not come within the sweep of the term ‘authority’. It is the next higher authority to the Reporting and Reviewing Officer who is the competent authority. The petitioner has made two representations against downgrading of his ACR below the benchmark, which is decided by order dated 28th January 2010 by the competent authority by giving reasons. So far as the submission as to the review made by the Reviewing Officer who had already retired and therefore had no authority to review the ACR recorded by the Reporting Officer is concerned, suffice it to say that as per the policy of the respondents, the Reviewing Officer can review the grading awarded by the Reporting Officer within one month of retirement. The petitioner has not disputed the fact that his ACR is not reviewed within one month of retirement by the Reviewing Officer nor has he produced any material to the effect that his ACRs are not reviewed within one month of the retirement of the Reviewing Officer. In this regard, the Tribunal has recorded its finding as under: “8. Bare perusal of concerned ACR would reveal that ACR for the Page 10 of 14 C/SCA/14886/2011 CAV JUDGEMNT year 2008­09 duly noticed applicant’s self appraisal submitted on 12­ 3­2009 and Reporting Officer (respondent No.3) recorded her assessment on 19­3­2009. In Column (1) of said ACR, she agreed that applicant submitted his annual report on immovable property for the preceding calender year within prescribed time limit. Against Column Nos.2­8, observations made were “Good” for each of them. For Column No.9, dealing with integrity, observations made was “nothing to suspect”. Column No.10, deals with general remark and over all assessment, & observation made was “Good”. Said ACR was forwarded to the respondent No.4 being Reviewing Authority. It is an admitted fact that she, Member CBDT, attained the age of superannuation on 30­4­2009. DOPT OM dated 14­5­2009 enables the reviewing authority to review ACRs of a subordinate within one month of his/her retirement. Said ACR was reviewed & gradation awarded by the respondent No.3, as “Good”, was maintained on 13­5­ 2009, which is well within time limit prescribed vide aforenoted O.M.. Therefore, contention raised about competency, jurisdiction and legality of said ACR on this account is without any substance. Accordingly, said contention fails.” 13 The contention of learned advocate, Mr Rao that awarding of grading below benchmark by the Reporting Officer and confirming thereof by the Reviewing Officer is actuated by malice, ulterior motive and extraneous consideration is also without merit. The petitioner has not spelled out in clear terms as to how the Reporting Officer and the Reviewing Officer were biased and prejudiced against him and in what manner the grading below benchmark is actuated by malice and ulterior motive. The petitioner has hopelessly failed to prove and establish the bias, mala fide and ulterior motive on the part of the Assessing Officer and the Reviewing Officer. It is very easy to make such Page 11 of 14 C/SCA/14886/2011 CAV JUDGEMNT assertion/allegation of bias, but it is very difficult to prove the same. It is a matter of common experience that such allegations are often made to influence and swing the decision in favour of the person making such allegations. The Tribunal has recorded its finding on this aspect, which is extracted below:­ “9. It is not in dispute that said gradation, which was below the Benchmark for next higher post of CCIT had been conveyed to him requiring to submit representation, if any. He, indeed, filed a detailed representation on 5­10­2009, which was duly considered and rejected by the Chairman, C.B.D.T., next higher authority of Reviewing Officer, as competent authority vide order dated 28­1­2010. Para­3 of said order noticed that: “Even though the Reviewing Officer has not spelt out the reasons in detail, the conclusion has been drawn from the spirit and letter of the view of the Reporting Officer AND WHEREAS, upon such consideration, the Competent Authority has come to the conclusion that no case has been made out for any interference.” In our considered view, it cannot be said that order did not assigned any reason, as projected, particularly, when we noticed that basic emphasis laid in his representation dated 5­10­2009 was alleged malafide, bias and malicious exercise of power for extraneous consideration. Thus, malafide became the centre point of his representation. Law relating to mala­fides is well settled. Hon’ble Supreme Court in E.P. Royappa v. State of Tamil Nadu & Anr., AIR 1974 SC 555 vide para 92 has held that: “the burden of establishing made 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.” The entire thrust laid by the applicant is that his ACR was spoiled Page 12 of 14 C/SCA/14886/2011 CAV JUDGEMNT for the reason that authorities were determined to deny him impending claim for promotion to next higher promotion to the post of CCIT, for which DPC was held in October, 2009 onwards and ultimately, promotion order was issued on 06­4­2009 promoting 30 IRS officers to the grade of CCIT, ignoring his claim. His claim was precisely based on 03% reservation available to physical handicapped person. I may note that as on said ate also, the law relating on that account is governed vide OM dated 29­12­2005, which in specific provided that reservation in promotion to a handicapped person on a Group ‘A’ post did not apply. As such, entire premise on which his claim is rested, in our considered view, is based on surmises & conjectures. Merely because prior to or as well as subsequent to the year ACR in question, applicant had been graded, which matched with prescribed Benchmark, could not be a ground to hold that the respondents’ action amounts to downgrading his ACR. Thus, no substance is found in the contention raised by applicant. As far as reliance placed on case law is concerned, none of said judgments has dealt with issue raised in present case & said judgments are applicable to peculiar facts and circumstances of said cases. Therefore, said judgments are totally distinguishable. No material of any worth has been produced, brought to Tribunal notice to establish allegations of malafide. Applicant has miserably failed to establish plea of mala­ fides.” 14 As could be seen from the above discussion, the challenge to the grading of the petitioner below benchmark of ‘Very Good’ was mainly on three counts, namely, (i) the grading below benchmark was actuated by malice, ulterior motive and extraneous consideration; (ii) the review of the grading of the Reporting Officer was made by the Reviewing Officer after her retirement and therefore she was Page 13 of 14 C/SCA/14886/2011 CAV JUDGEMNT not competent to review the grading awarded by the Reporting Officer; and (iii) sufficient reasons are not recorded by the authority for grading the petitioner below the benchmark. 15 The petitioner has failed to make out any case on the above counts. The Tribunal has considered these contentions threadbare in the impugned order by giving cogent and detailed reasons. The learned counsel for the petitioner could not convince us to come to the conclusion that the impugned order of the Tribunal suffers from any illegality warranting interference in this petition. The petition, therefore, lacks merits and deserves to be dismissed and is accordingly dismissed. Rule is discharged. No order as to costs. Sd/­ (V.M.SAHAI, J.) Sd/­ (A.G.URAIZEE, J.) *mohd Page 14 of 14 "