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HIGH COURT OF DELHI
Date of Decision: November 03, 2023
RAJEEV GUPTA ..... Petitioner
Through: Mr.Pushpinder Yadav, Advocate
Through: Ms.Bharathi Raju, Sr.Panel Counsel with Mr.Hardik Bedi, Govt. Pleader for respondents No.1, 2 & 4/UOI.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO, J. (ORAL)
CM APPL. No.56839/2023 (exemption)
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
JUDGMENT
1. The challenge in this writ petition is to an order dated 03.07.2023 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in O.A. 4485/2017 whereby the Tribunal has dismissed the OA filed by the petitioner herein by stating in paragraph 8 as under:
2. The only submission made by learned counsel for the petitioner by drawing our attention to page 75 of the paperbook, which is part of ACR wherein the Reviewing Authority has made an assessment about the petitioner, is that the same Reviewing Officer acted as an Accepting Authority (who has to be a higher Officer than the Reviewing Officer), which is in violation of OM dated February 08, 1989 issued by the Cabinet Secretariat, Government of India wherein paragraph 9 the following position has been stated:
3. In that sense, according to him, there is no proper consideration of the ACR by the Accepting Authority, who has to be a Senior Officer.
4. On the other hand, Ms. Bharathi Raju, learned CGSC by drawing our attention to the reply filed by the respondents before the Tribunal at page 185 of the paperbook has referred to paragraph 4.6, which reads as under: “4.[6] The contents of Para No. 4.[6] of the OA are denied. The IO has suitable mentioned cause and reasons for grading in Section V(1) as well as in Pen Picture of the applicant in the APAR. Hence, it is wrong to say that no cause and reason have been stated in APAR by the IO. It is further mentioned that in Govt. of India, two tier system of reporting has been provided to minimise the operation of the subjective human element and of conscious/unconscious bias in reporting. However, in this office, a three tier system of reporting has been prescribed i.e. Initiating Officer (IO), Reviewing Officer (RO) and Accepting Authority(AA) to avoid any element of bias. As per DoP&T O.M. No. 21011/ 8/ 85-Estt.(A) dated 23.09.1985 (Annexure-R- 1), RO/AA can be the same officer. Hence it is wrong to say that RO functioning as AA is bad in law.”
5. As according to her, in the Office of the respondents, a three tier system of reporting has been prescribed i.e. Initiating Officer (IO), Reviewing Officer (RO) and Accepting Officer (AO) to avoid any element of bias and as per DoP&T Instructions issued vide OM dated September 23, 1985, which is at page 196 of the paperbook, the same contemplates 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 by the Reporting Officer. The relevant portion of the OM dated September 23, 1985 reads as follows: “…… 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 by the Report Officer. The relevant portion of the OM dated September 23, 1985 reads as follows:”
6. On a specific query to the counsel for the petitioner whether the petitioner has made any representation against the ACR his answer is in the affirmative. In fact, he has drawn our attention to Annexure A-1 at page 65 of the paperbook whereby the representation of the petitioner dated February 27, 2017 has been rejected.
7. A plea has been taken by the counsel for the petitioner that the same has been rejected by Under Secretary (PERS.F) who is not an officer higher in rank than the Accepting Authority.
8. We are unable to accept such a submission of the learned counsel for the petitioner for the simple reason, paragraph 7 of the order dated May 25, 2017 reads that the same has been issued with the approval of the Competent Authority.
9. If that be so, the representation having been considered by the Competent Authority, we are of the view that no prejudice has been caused to the petitioner. We agree with the conclusion drawn by the Tribunal.
10. We do not see any merit in the petition. The same is dismissed.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J. NOVEMBER 03, 2023