1865cf5d5a8b1ceb33a96f462dea10536a98bbe7bb3b89ba01404806798c3c68

2024 INSC 190

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│      SLP (C) No. 13972 of 2019                                       Page 8 of 18   │
│     of The PAR to the                                                               │
│     DOPT)                                                                           │
├─────────────────────────────────────────────────────────────────────────────────────┤
│ 8. Forwarding           Of    31.10.2017 15 Days           -                -       │
│     Comments of The                                                                 │
│     Officer     Reported                                                            │
│     Upon       to      The                                                          │
│     Reviewing and The                                                               │
│     Reporting                                                                       │
│     Authority, In Case                                                              │
│     the Officer Reported                                                            │
│     Upon            Makes                                                           │
│     Comments                                                                        │
│ 9. Comments             Of    15.11.2017   15 Days   05.02.2018        24 Days      │
│     Reporting Authority                                                             │
│ 10. Comments            Of    30.11.2017   15 Days   12.02.2018        7 Days       │
│     Reviewing                                                                       │
│     Authority                                                                       │
│ 11. Comments            Of    15.12.2017 15 Days     No Decision       -            │
│     Accepting                                                                       │
│     Authority/PAR to                                                                │
│     Be Finalized and                                                                │
│     Disclosed to Him                                                                │
│ 12. Representation to         31.12.2017 15 Days     -                 -            │
│     the Referral Board                                                              │
│     by     the      officer                                                         │
│     reported upon                                                                   │
│ 13. Forwarding           of   31.01.2018 30 Days     -                 -            │
│     representation to the                                                           │
│     Referral        Board                                                           │
│     along with the                                                                  │
│     comments             of                                                         │
│     reporting                                                                       │
│     Authority/reviewing                                                             │
│     Authority          and                                                          │
│     accepting Authority                                                             │
│ 14. Finalization         by   28.02.2018 30 Days     -                 -            │
│     Referral Board if the                                                           │
│     officer reported of                                                             │
│     the        Accepting                                                            │
│     Authority.                                                                      │
│ 15. Disclosure to the         15.03.2018 15 Days     -                 -            │
│     officer       reported                                                          │
│     upon                                                                            │
│   SLP (C) No. 13972 of 2019                                        Page 9 of 18     │
│ 16. End of entire PAR 31.03.2018 15 Days            -               -               │
│     process                                                                         │
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17. At this juncture, it would be apposite to refer to a decision of this Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 wherein this Court whilst weighing the consideration(s) qua the mandatory nature of timelines prescribed upon a public functionary observed as under: “42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.”

18. Furthermore, this Court in May George v. Tahsildar, (2010) 13 SCC 98 devised a test qua the mandatory nature of an obligation emanating from a provision of law. In this regard, this Court observed as under: “25. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance with the provision could render the entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject-matter and object of the statutory provisions in question. The Court may find out as to what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the noncompliance with the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.”

19. In this context we must now consider the implication and / or outcome (if any) of a contravention of the timeline(s) prescribed under the Schedule. Aperusal of the PAR Rules would reveal that a contravention of the said timelines, neither render the underlying PAR invalid, nor would be met with any identified immediate consequence. The aforesaid interpretation is also supported by the empirical data i.e., previous performance appraisal report(s) of Respondent No. 1 which were admittedly beyond the timelines prescribed under the Schedule, however within the period prescribed under Rule 5(1) of the PAR Rules. Furthermore, even though the High Court vide the Impugned Order, set-aside the CAT Order, the High Court observed that the timelines prescribed under the Schedule were not water-tight and in fact, were flexible.

20. Thus, we find ourselves unable to accept the contention raised by Mr. Khemka i.e., that the Accepting Authority was either precluded from populating its comment(s) after the cut- off date as more particularly identified at Serial Number 5 in Table 1 above; or that upon the expiry of the cut-off date, the Reviewing Authority’s comments would be deemed to have been adopted by the Accepting Authority.

21. Admittedly, the Accepting Authority has met the timelines prescribed under Rule 5(1) of the PAR Rules and accordingly, in view of the compliance with mandatory timelines prescribed under the PAR Rules we find no reason to expunge the remarks and overall grades awarded to Respondent No. 1 by the Accepting Authority on the PAR on account of a contravention of the timelines prescribed under the Schedule.

22. Now we turn our attention to the fulcrum of the dispute before this Court i.e., whether the High Court ought to have interfered with the CAT Order in exercise of its jurisdiction under Article 226 of the Constitution of India?

23. At the outset we would like to deal with Respondent NO. 1’s reliance on Dev Dutt (Supra). The said case underscored the importance of, inter alia, communicating entries of evaluation to the candidate, irrespective of whether such evaluation was adverse in the eyes of the assessing entity i.e., the Court stressed the fact that in matters of selection and promotion, a comparative lens must be adopted whereunder the adverse nature of an evaluation must be contingent not only on whether such evaluation would have an adverse impact on the candidate but also whether it would affect the candidates’chances of promotion to the next category.

24. In this context, although it was submitted by Mr. Khemka that prejudice has been caused to Respondent No. 1, we find ourselves unable to accept the said contention on account of the fact that Respondent No. 1 was awarded an overall grade ‘9’ which undisputedly forms a part of the ‘outstanding’ grade i.e., the highest category awarded to an IAS officer. Accordingly, in our opinion there can be no qualm that the said overall grade is more than sufficient for the purposes of empanelment / promotion vis-à-vis Respondent No. 1. Thus, the reliance placed on Dev Dutt (Supra) by Respondent No. 1 is misplaced in the present factual matrix.

25. Now, turning to the issue framed in Paragraph 22 of this Judgement above, we find ourselves grappling with a foundational principle of our constitution i.e., that the judiciary must exercise restraint and avoid unnecessary intervention qua administrative decision(s) of the executive involving specialised expertise in the absence of any mala-fide and / or prejudice. In this regard it would be appropriate to refer to our decision in Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81 whereunder this Court observed as under: “38….It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision-making process would not suffice.”

26. Similarly, this Court in State of Jharkhand v. Linde India Ltd., (2022) 107 GSTR 381 whilst delineating the scope of interference of the High Court exercising jurisdiction under Article 226 of the Constitution of India vis-à-vis a finding of fact by experts observed as under: “7. As per the settled position of law, the High Court in exercise of powers under article 226 of the Constitution of India is not sitting as an appellate court against the findings recorded on appreciation of facts and the evidence on record. The High Court ought to have appreciated that there was a detailed inspection report by a six members committee who after detailed enquiry and inspection and considering the process of manufacture of steel specifically came to the conclusion that the work of oxygen is only of a "refining agent" and its main function is to reduce the carbon content as per the requirement. The said findings accepted by the assessing officer and confirmed up to the Joint Commissioner-revisional authority were not required to be interfered with by the High Court in exercise of powers under article 226 of the Constitution. The High Court lacks the expertise on deciding the disputed questions and more particularly the technical aspect which could have been left to the committee consisting of experts.”

27. The overall grading and assessment of an IAS officer requires an in-depth understanding of various facets of an administrative functionary such as personality traits, tangible and quantifiable professional parameters which may include inter alia the competency and ability to execute projects; adaptability; problem-solving and decision-making skills; planning and implementation capabilities; and the skill to formulate and evaluate strategy. The aforesaid indicative parameters are typically then analysed by adopting a specialised evaluation matrix and thereafter, synthesised by a competent authority to award an overall grade to the candidate at the end of the appraisal / evaluation. Accordingly, in our considered view, the process of evaluation of an IAS officer, more so a senior IAS officer entails a depth of expertise, rigorous and robust understanding of the evaluation matrix coupled with nuanced understanding of the proficiency required to be at the forefront of the bureaucracy. This administrative oversight ought to have been left to the executive on account of it possessing the requisite expertise and mandate for the said task.

28. Accordingly, it is our opinion that the High Court entered into a specialised domain i.e., evaluating the competency of an IAS officer by way of contrasting and comparing the remarks and overall grades awarded to Respondent No. 1 by (i) the Reporting Authority; (ii) the Reviewing Authority; and (iii) the Accepting Authority, without the requisite domain expertise and administrative experience to conduct such an evaluation. The High Court ought not to have ventured into the said domain particularly when the Accepting Authority is yet to pronounce its decision qua the Underlying Representation. Conclusion

29. Given this backdrop, we are of the opinion that the learned Division Bench of the High Court erred in law. Accordingly, we set aside the judgement of the Division Bench of the High Court. Additionally, as we have been informed that the Accepting Authority is yet to take a decision on the Underlying Representation, we direct the Accepting Authority to take a decision on the Underlying Representation under Rule 9(7B) of the PAR Rules within a period of 60 (sixty) days from the date of pronouncement of this Judgement. Thereafter, Respondent No. 1 is granted liberty to take recourse to remedies as may be available under law.