Tarkeshwar Prasad v. Union of India

16. The Petitioner then filed WP(C) 439 of 2017 in this Court for correction of his seniority in the combined gradation list by placing him above Respondent No.4. The writ petition was dismissed as withdrawn on 4th August 2017 with liberty to file a comprehensive writ petition „impugning certain orders which have come to notice in view of the counter-affidavit filed by the Respondents.‟ It is in the above circumstances that the present writ petition has been filed by the Petitioner on 10th August 2017 seeking the above reliefs.

17. In response to the notice issued in the petition a counter-affidavit has been filed by the Respondents 1 to 3 where inter alia it is sought to be contended that the combined seniority list of the CMOs in the CAPF, NSG and Assam Rifle („AR‟) as on 1st April 2013 and circulated by a communication dated 13th February 2014 has been prepared „in accordance with the relevant recruitment rules and government instructions issued from time to time‟ and, therefore, the said seniority list was „valid, legal and suffers no infirmity.‟ A reference is made to the DoPT OM dated 16th June 2000 on the issue of relevant years up to which ACRs are required to be considered by the DPCs. This clarified that only such ACRs which became available during the year immediately preceding the vacancy/final years should be considered even if DPCs are held later on the schedule prescribed in the model calendar. In other words, according to the official Respondents, for the vacancy/panel year 2000-01 the ACRs up to the year 1998-99 are required to be considered irrespective of the date of convening of the DPC.

18. A reference is also made to the DoPT OM dated 6th October 2000 on the issue of the number of ACRs to be considered by the DPCs. This clarified that DPC should access the suitability of the employees for promotion with particular reference to the ACRs for 5 preceding years irrespective of the qualifying service prescribed in the relevant Recruitment Rules („RRs‟).

19. A reference has been made to the OM dated 8th February 2002 issued by the DoPT prescribing the procedure observed by the DPCs for overall grading, benchmark for assessment of performance and the manner in which the select panel has to be arranged for promotions to various levels of posts/grades. Inter alia it clarified that the mode of promotion shall be „selection‟ and the benchmark for promotion shall continue to be „very good.‟ It further clarified as under: “(iii) The DPC shall for promotions to said pay-scale (grade) and above, grade officers as 'fit' or 'unfit' only with reference to the bench-mark of 'very good'. Only those who are graded as 'fit' shall be included in the select panel prepared by the DPC in order of their inter-se seniority in the feeder grade. Thus, as already explained in paragraph 3.[2] above, there shall be no supersession in promotion among those who are found 'fit' by the DPC in terms of the aforesaid prescribed bench-mark of 'very good'.”

20. Reference is made to an OM dated 11th November 2010 issued by the DoPT which provides consolidated „instructions and guidelines on seniority.‟ It is contended that for the purpose of promotion to the post of CMO (OG) and above the DPC shall consider the ACRs of the concerned employee for the past 5 years immediately preceding the vacancy year and after due assessment the DPC would rate the concerned officer as fit or unfit only with reference to the required benchmark of „very good.‟ Further, where a government servant is considered „unfit‟ for promotion and has been superseded by his junior then such person, shall not, if he is subsequently found suitable and promoted, take seniority in the higher grade over the junior persons who had superseded him/her.

21. Annexed as Annexure „R8‟ to the counter-affidavit of the official Respondents is a letter dated 9th November 1999 communicating the adverse remarks to the Petitioner. The said adverse remarks as communicated to the Petitioner for the period 1st March 1999 reads as under: “A Well turned out Senior Medical Officer. His professional knowledge adequate. He takes longer than required to complete task and occasionally needs to be reminded for the same. His approach to the assigned task is superficial. He is co-operative. He is cordial and sympathetic with patients I grade him as a good Senior Medical officer in the right spirit.”

22. Also annexed is a copy of the letter dated 28th August 2000 communicating the rejection of the Petitioner‟s representation dated 18th January 2000 against the said adverse remarks. The said letter inter alia stated as under: “After careful consideration of the representations, the undersigned is of the view that your request for expunge of the adverse remarks recorded in your ACR can not he acceded to being devoid of merit. The remarks are found to be on impartiality and judicious assessment of your work and conduct during the period under report.”

23. The official Respondents point out that the Petitioner has not challenged the aforementioned letter dated 28th August 2000 and, therefore, the present petition challenging these remarks is barred by laches. It is pointed out that in the DSC proceedings dated 11th May 2004 all CMOs (OG) were found fit for promotion to the rank of CMO (SG) with effect from April 2002 had been promoted to the rank of CMO (SG) with effect from 5th April 2002. Since the Petitioner was found „unfit‟ by the said DSC dated 11th May 2004 on the basis of his confidential record for the relevant period he was not promoted with effect from 5th April 2002. However, he was found fit for promotion to the rank of CMO (SG) with effect from March 2003 and was accordingly promoted as such with effect from 19th March 2003 by the promotion order dated 22nd July 2004.

24. It is stated that the review DSC meeting held on 4th June 2015 considered Petitioner‟s case for promotion to SMO to CMO (OG) with reference to the DPC dated 9th March 1998. He was assessed as fit and was promoted to the rank of CMO (OG) with effect from 19th March 1997. Accordingly, his date of promotion as CMO (OG) was changed from 19th March 1999 to 19th March 1997. However, as far as his promotion to the post of CMO (SG) was concerned in view of the adverse remarks recorded in the ACR for the year 1998-99 he was assessed as unfit for promotion to the rank of CMO (SG)/Commandant with effect from 2002. Since the Petitioner has already been promoted as CMO (SG) with effect from 19th March 2003 a further review of his promotion as such was not required. The seniority followed the above determination and the seniority of the Petitioner was accordingly fixed just below Respondent No.4.

25. The Petitioner has filed the rejoinder to the said counter-affidavit reiterating his submissions in his petition.

26. This Court has heard the submissions of Mr. Ankur Chhibber, learned Counsel for the Petitioner and Mr. Ripu Daman Bhardwaj, learned counsel appearing for the Respondents 1 to 3. It must be noted here that Respondent No.4 was served through the DG, BSF as well as by speed post with an affidavit of service dated 25th September 2018 being filed by the Petitioner enclosing the tracking report to that effect. In its order dated 11th February 2019 this Court noted that service of notice on all Respondents was complete. However, none has appeared on behalf of Respondent No.4.

27. The Court would first like to take up the issue of the adverse remarks communicated to the Petitioner.

28. Mr. Chhibber is right in his contention that there is an internal contradiction in the said remarks. At first it is stated that he is a well turned out SMO and his professional knowledge is adequate. It is then stated that he takes longer than required time to complete a task and needs to be reminded and that his approach „to the assigned task is superficial.‟ Immediately thereafter it is stated that he is cooperative, cordial and sympathetic and patient and that he should be graded as good SMO. It is then again stated that he should accept the advice of senior officials in the right spirit.

29. The so-called „adverse‟ remarks are that (i) the Petitioner takes longer than required time to complete a task, (ii) he needs to be reminded (iii) his approach to the assigned task was superficial and (iv) he should accept advice and counselling.

30. As rightly pointed out there is no reference to any warning letter or memo issued to the Petitioner at any time during the relevant period counselling him to improve his work. In fact, even the counter-affidavit does not refer to any such warning or memo issued to the Petitioner. The above type of adverse remarks make it impossible for the Petitioner to make any effective representation because there is no reference to any particular incident or occasion when the Petitioner took longer than required time to complete a task and had to be reminded. The remark that his approach to an assigned task is „superficial‟ without any supporting document or even an advice or warning being issued to him in that regard again appears to be unfair to the officer. On the other hand, the Petitioner has in the present petition in ground A stated that the background for the above adverse remarks stand on the fact that while he was posted as Hazari Bagh at the relevant time he had highlighted certain malpractices and financial irregularities in the BSF Hospital through his letters dated 11th February and 9th April 1999 and that he was pressurised to withdraw the said letters lest adverse remarks be reflected in his ACRs.

31. The instruction manual on filling up ACRs states that adverse entry should be based on established facts and not on mere suspicion. The instruction manual of filling up ACRs also lays down that before making an adverse entry the reporting officer should satisfy himself that the conclusions have been arrived at only after a reasonable opportunity has been given to the official to present his case regarding any particular incident.

32. The adverse remarks in the present case appear to be sketchy, superficial and mutually contradictory. No reasons also have been given for rejecting the Petitioner‟s representation except saying that his request for expunction cannot be acceded to. For the first time a copy of a warning issued on 6th November 1998 to the Petitioner for „dereliction of duty‟ has been enclosed. This actually pertains to signing of certain survey reports not connected with the Petitioner‟s charter of duties as SMO. In his rejoinder the Petitioner states that he had requested for an enquiry to be held as he had pointed out glaring financial irregularities, however, no action was taken thereon. It appears to the Court that the manner of recording the adverse remarks was not in consonance with the requirement of the instruction manual and has been done in a casual manner.

33. The above recording of adverse remarks in the Petitioner‟s ACR for 1998-99 is contrary to the law explained by the Supreme Court in several decisions. In S. Ramachandra Raju v. State of Orissa 1994 Supp (3) SCC 424, the Supreme Court observed: “…It is needless to emphasise that the career prospects of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer is bound to lose his credibility in the eyes of his subordinates and fail to command respect and work from them. The constitutional and statutory safeguards given to the government employees largely became responsible to display callousness and disregard of the discharge of their duties and make it impossible to the superior or controlling officers to extract legitimate work from them. The writing of the confidential is contributing to make the subordinates work at least to some extent. Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service….”

34. In U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363, the Supreme Court held: "as we view it, the extreme illustration given by the High Court may reflect an 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 that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted to 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, not be 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 downgrading 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."

35. In Sukhdeo v. Commissioner Amravati Division, Amravati (1996) 5 SCC 103 the legal position was explained as under: “6. It is settled law that when the Government resorts to compulsorily retire a Government servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinised and the power would be reasonably exercised. In State Bank of India Etc. v. Kashinath Kher and Ors. Etc (1996) IILLJ 654 SC, this Court has held that the controlling officer while writing confidential and character roll report, should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honesty and integrity so as to improve excellence of the individual officer, lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected of from that high responsible officer who made the remarks. When an officer makes the remarks he must eschew of making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. In would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in waiting for improvement and yet was not availed of so that it would form part of the record. The power exercised by the controlling officer is per se illegal. The tribunal has not considered this aspect of the matter in dismissing the petition. The appellant is entitled to reinstatement with all consequential benefits. The appeal is accordingly allowed with exemplary costs quantified at Rs. 10,000 recoverable by the State from the officer who made the remarks.”

36. Reverting to the case on hand, it is significant that barring the one year which is 1998-99 in the Petitioner‟s ACR which had a „good grading‟, his grading in all the preceding and succeeding years have been „very good.‟ In other words, barring 1998-99 the entries in the Petitioner‟s ACRs have been above the benchmark. In this context, the observations of this Court in Inspector GD Krishna Rajak v. Union of India 2012 SCC Online Del 4454 are relevant: “Now, it is not possible that for 11 years a person is either 'Very Good' or 'Outstanding' and then for one year he drops to 'Average' and then regains 'Very Good' and 'Outstanding' in the next three years.”

37. In the present case the fact is that the adverse remarks in his ACR were not communicated to Petitioner till the grading of the Review DSC. The Petitioner could not have anticipated that his grading would be below the benchmark. It is only after the decision communicated to him of the Review DSC held on 8th June 2015 that he became aware that the grading of the year 1998-99 was below the benchmark. Consequently, the objection that the present challenge to the ACR is barred by laches is also without basis.

38. For the aforementioned reasons the Court is of the view that the adverse remarks in the Petitioner‟s ACR for the period 1998-99 deserve to be expunged and are hereby directed to be expunged. Consequently, fresh grading of ACR of the Petitioner for the period 1998-99 is to be given.

39. As a result of the above decision of this Court a direction is issued now to the Respondent to give fresh grading of ACR for the period 1998-99 and thereafter hold a fresh Review DSC to consider the case of the promotion of the Petitioner from CMO (OG) to CMO (SG) with effect from 5th April 2002 instead of 19th March 2003. Accordingly, the proceedings of the Review DSC dated 4th June 2015 to this extent are hereby set aside.

40. Once the fresh Review DSC is held and the Petitioner‟s seniority is fixed with effect from 5th April 2002, all consequential benefits will be accorded to the Petitioner for his next higher promotions. The above exercise will be completed within a period of 8 weeks from today.

41. The petition is allowed in the above terms but in the circumstances no order as to costs.

S. MURALIDHAR, J.

TALWANT SINGH, J. SEPTEMBER 17, 2019 tr