High Court · 2011

Doubtful in view of the action of the officer in placing orders with the firms for training when he was only asked to co-ordinate work of IT Cell. The m anipulation of tender papers also clearly bring out officers lack of integrity a nd lack of trust. 4. No. Section - D 3. The officer cannot be trusted. Further, authority given to the officer is mis -utilized for his personal benefit. Your performance during the period 2006-07 has therefore been graded as (cid:28)Below A verage (cid:29). For the year 2007-08 (w.e.f. 1.4.07 to 4.9.07 Section-C 2. The officer cannot be trusted and should not be given any responsibility deal ing with financial matter because of lack of integrity. 3. Doubtful. He should not be given any responsibility dealing with Finance. (cid:29)

2. When the petitioner was communicated with the adverse remarks by the afo resaid communication, he wanted to know the basis, on which the said remarks had been made by the 3 (three) authorities i.e. Recording, Reviewing and Accepting. When the request of the petitioner did not yield any result, he approached thi s Court by filing a writ petition registered and numbers as WP(C) No.580/2009. T he prayer of the writ petitioner was to furnish him the copies of the ACRs along with the name/designation of the 3 authorities i.e. the recording, reviewing an d accepting enabling him to make appropriate representation to the competent aut hority.

3. During the pendency of the writ petition, when the petitioner was provid ed with opportunity to make inspection of the relevant documents pertaining the impugned ACRs, he had withdrawn the writ petition. Thereafter, on perusal of the relevant records and getting the desired information, he filed the instant writ petition. Apart from alleging that the impugned remarks are all vague, indefinite 4. and devoid of any reason, the petitioner has also questioned the very procedure adopted towards recording the adverse remarks. It will be pertinent to mention h ere that the impugned adverse remarks have been recorded by the purported accept ing authority all by himself discharging the role of all the 3 authorities i.e. recording, reviewing and accepting. Another aspect of the matter is that the ac cepting authority, which had recorded the adverse remarks, was no longer holding the post of Chairman, A.S.E.B., in which capacity, he had recorded the adverse remarks in the ACRs. At the time of recording the adverse remarks, he had alrea dy demitted the office of the Chairmanship of the A.S.E.B. and had gone to the p arent department/cadre, from where he was brought to the A.S.E.B. on deputation. Long 15 months after demitting the office of the Chairman of the A.S.E.B., the said authority in the capacity of Principal Secretary to the Government of Assam in the Home & Political Department recorded the impugned adverse remarks of the petitioner.

5. In the counter affidavit filed by the respondents, it has been stated th at in absence of recording and reviewing authorities, because of their retiremen t from service on attaining the age of superannuation, the service record of the petitioner was assessed by the accepting authority, who although had demitted t he office of the Chairman of the A.S.E.B, but was very much in service of the St ate Government and accordingly, could assess the service record of the petitione r. In this connection, the respondents have referred to office order dated 26.12 .1997 laying down the procedure for writing confidential report.

6. In the reply affidavit filed by the petitioner, it has been stated that the Respondent No.4 i.e. the Principal Secretary, Home & Political Department, w hom the petitioner has arrayed as party-respondent by name, could not have initi ated, reviewed and accepted the remarks in the ACRs of the petitioner for the re levant years, he having left the A.S.E.B. where he had served on deputation. Ac cording to the petitioner, the Respondent No.4 took recourse to the impugned act ion towards recording the adverse remarks in malafide exercise of power and the remarks impugned in this proceeding are not the product by any reasonable assess ment of performance of the petitioner. The petitioner has also indicated the respective dates of retirement of 7. the recording and reviewing officers on attaining the age of superannuation, whi ch are 28.2.2009 and 9.9.2008. On the other hand, the Respondent No.4, who had worked as Chairman of the A.S.E.B., demitted his office on 5.9.2007 and long 15 months thereafter, he had recorded the impugned adverse remarks in the ACRs of t he petitioner pertaining to the years 2006-07 and 2007-08 (1.4.2007 to 4.9.2007) . Those remarks were recorded for all the three authorities on a single day i.e.

27.11.2008.

8. Mr. Y.S. Mannan, learned counsel for the petitioner submits that the Res pondent No.4 after demitting the office of the Chairman, A.S.E.B, could not have recorded the ACRs of the petitioner including the adverse remarks after 15 mont hs thereafter and that too, in the capacity of Principal Secretary, Home & Polit ical Department. He submits that on a bare perusal of the purported adverse rema rks will go to show that the same is not the product of any bonafide exercise of scrutiny of the service record. Placing reliance on the decision of the Apex C ourt reported in 1) (2007) 9 SCC 436 (S.T. Ramesh v. State of Karnataka & Anr); 2) AIR 1999 SC 3273 (P.K. Shastri v. State of Madhya Pradesh and Ors.); 3) (2008 ) 8 SCC 725 (Dev Dutt v. Union of India & Ors); 4) (2007) 15 SCC 273 (T.N. Godav arman Thirumulpad v. Union of India & Ors) and 5) (1996) 5 SCC 103 (Sudhdeo v. C ommissioner Amravati Division & Anr.), Mr. Mannan, learned counsel for the peti tioner submits that the very purpose of writing ACR and recording of adverse rem arks is to provide opportunity to the officer concerned so that he can improve h imself and not to destroy his career.

9. Mr. B.D. Das, learned senior counsel assisted by Mr. N. Goswami, learned counsel appearing for the A.S.E.B, on the other hand, submits that whatever has been done, the same was in terms of the office order dated 26.12.1997 laying do wn the procedure for writing confidential report. Referring to clause 1 (6) of t he said office order dated 26.12.1997, he submits that since the recording and r eviewing authorities had already retired from service on attaining the age of su perannuation, as per the provisions of the said clause, the accepting authority had to write the ACRs of the petitioner for both the years and thus, there is no infirmity in doing so. He also submits that if the petitioner is aggrieved by t he adverse remarks in his ACRs, it is open for him to make representation to the competent authority, for which due intimation was furnished to the petitioner. In this connection, he has referred to the Annexure-E and G letters dated 30.12 .2008 and 29.1.2009, by which the Director (P) requested/advised the petitioner to submit defence statement on the adverse remarks recorded in the ACRs.

10. rties. I have also gone through the entire materials on record. I have considered the submissions made by the learned counsel for the pa

11. The decision on which Mr. Mannan, learned counsel for the petitioner has placed reliance are all on principles relating to recording and communicating t he adverse remarks. In Sukhdeo (supra), the Apex Court reminded that when an off icer makes the remarks, he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. It was further emphasized that he must b estow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordi nate officer whose career prospect and service were in jeopardy. Noticing and re iterating the principles relating to writing of ACRs, the Apex Court in that pro ceeding held that the Controlling Officer did not use due diligence in making th e remarks and set aside the order of compulsory retirement passed against the pe titioner on the basis of such remarks. In P.K. Shastry (supra), the Apex Court held that the authority recordin 12. g the adverse remarks in the ACRs must do so by way of a decision that must be t aken objectively after careful consideration of all the materials before it.

13. The decision in T.N. Godavarman (supra) has been pressed into service to emphasize that the authority, who writes the ACRs, must be of same service, alt hough superior in rank. In S.T. Ramesh (supra), while emphasizing that the confidential report s 14. hould be used as a tool for human resource development and not for fault-finding process, the Apex Court also observed that the confidential report is an import ant document as it provides the basic and vital inputs for assessing the perform ance of an officer and further achievements in his career.

15. In Dev Dutt (supra), the Apex Court held that when the adverse remarks a re communicated to the officer, he must have a right to make representation agai nst the same to the authority concerned and the said authority must decide the r epresentation in a fair and reasonable manner. It was further heed that such rep resentation must be decided by an authority higher than the one, who recorded th e adverse remarks, otherwise the likelihood is that the representation will be s ummarily rejected without adequate consideration as it would be an appeal Caesar to Caesar. In the said decision, the Apex Court emphasized on fairness and tran sparency in public administration and that, the State must be a model employer a nd must act fairly towards its employees. Only then, the good governance would b e possible.

16. In the rejoinder affidavit filed by the petitioner, it has been stated t hat prior to and subsequent to the periods in question, the petitioner all along earned (cid:28)Very Good (cid:29) remark. Thus, the whole emphasis of the petitioner is that t he particular adverse remarks recorded in the ACRs pertaining to the years 2006- 07 and 2007-08 (only part) is not founded on bonafide exercise of power. Accordi ng to the petitioner, it is for this period only, the adverse remarks have been recorded in the ACRs and the same is not the result of bonafide exercise of powe r.

17. As in the instant case, in State of U.P v. Yamuna Shanker Misra, reporte d in (1997) 4 SCC 7, the Apex Court noticed that the respondent therein constant ly maintained good record earlier and subsequent to the period for which the adv erse remarks were recorded. It was also noticed that because of such good confid ential report, the clouds over his conduct were cleared and he was given further promotion. As in the said case, in the instant case also, it is the specific c ase of the petitioner that barring the period in question for which the impugned adverse remarks, stated to have been recorded by the purported accepting author ity, the petitioner had all along maintained a good confidential report with the remarks of overall assessment as (cid:28)very good (cid:29).

18. As observed in the aforesaid case, the object of writing confidential re ports and making entries in the confidential rolls is to give opportunity to pub lic servant improve achievement. Article 51 (A) (J) of the Constitution of India enjoins upon every citizen a primary duty to constantly endeavour to improve ac hievement individually and collectively as a member of the group. In the said ca se, the Apex Court emphasized on the need of objectivity in writing ACRs. The sa me view has been expressed in Swatantar Singh v. State of Haryana, reported in ( 1997) 4 SCC 14.

19. During the course of hearing, Mr. B.D. Das, learned counsel appearing fo r the respondents has produced the originals of the ACRs of the petitioner for t he period from 2006-07 and 2007-08. On perusal of the said ACRs, what is seen is that the Respondent No.4, in his capacity as Principal Secretary, Home & Politi cal Department, Government of Assam filled in all columns meant for the recordin g, reviewing and accepting authorities on the same day i.e. 27.11.2008. Thus, bo th the ACRs for the said periods were recorded single handedly by the Respondent No.4 on a single day and that too, taking the responsibility of filling up of c olumns which are specifically meant for the other two authorities i.e. the recor ding and reviewing authority. While recording the adverse remarks, no material p articulars have been disclosed and yet, the Respondent No.4 has branded the peti tioner as an officer not to be trusted and that, he should not be given any resp onsibility dealing with the finance. While making such remarks, no specific inst ance has been given to establish such remarks. On the face of it, the remarks ar e vague, indefinite and are not informed of any reason.

20. The Respondent No.4 could not have recorded the said remarks single hand edly for all the 3 authorities and that too, on a single day, which itself will go to show the lack of transparency and fairness and total non-application of mi nd.

21. The office order dated 26.12.1997 laying down the procedure for writing confidential reports, on which Mr. Das, learned counsel appearing for the respon dents has placed reliance, speaks of the period of recording of the ACR, which i s 1st January to 31st December. In the instant case, the ACRs have been recorded for the period from April to March and 2006 - 2007 and 1.4.2007 to 4.9.2007 (20 07 - 2008).

22. As per the procedure laid down in the said office order, the recording o fficer after writing the particular column of the ACRs should submit the same to the reviewing authority by 15th January. Thereafter, the reviewing officer afte r grading the officer in the particular column shall submit the ACR to the accep ting officer by 20th January. The accepting officer after assessment in the part icular column of the ACRs in all respect shall send the same to the Personnel Ma nager/HOD by 31st January of the year following the year of the reporting for cu stody.

23. Admittedly, the aforesaid time schedule was not followed in the instant case. Mr. Das, learned counsel for the respondents submits that the said time s chedule could not be followed as the petitioner did not submit his part of the A CR in time. Suffice is to say that whatever was the reasons for not submitting h is part by the petitioner, but it was the duty of the 3 authorities to strictly adhere to the time schedule laid down in the office order towards recording the ACRs.

24. In clause 1 (6) of the office order, it has been laid down that all the 3 authorities before transfer or going on retirement or resigning from service s hall write/review or accept, as the case may be, the ACRs of his subordinates fo r the period upto the date of his handing over charge of the post and send the s ame to the next higher authority, as the case may be, under intimation to the He adquarter Office. If we go by this clause, it was incumbent on the part of the r ecording and reviewing authority to write ACR of the petitioner before they had gone on retirement on attaining the age of superannuation.

25. As per clause 2 (2) (iv) of the said office order, in the event of retir ement of both the reviewing and accepting officer, the remarks of the recording officer shall be final. Similarly, in the event of retirement of accepting offic er, the remarks of the reviewing officer shall be final. Likewise, in the event of retirement of the reviewing officer, the accepting officer shall record, revi ew and accept the ACRs. In this connection, Mr. Das, learned counsel appearing f or the respondents has placed reliance on clause 2 (2) (v) which provides that i n the event of retirement of both the recording and reviewing officers, the acce pting officer shall record, review and accept the ACRs.

26. The term (cid:28)retirement (cid:29) will have to be understood in the context of the e xpression finds mention in clause 1 (6). The expressions are ’transfer’, ’retire ment’ and ’resigning from service’. In the instant case, the Respondent No.4 ha d gone on deputation to the A.S.E.B. His parent cadre, as submitted by Mr. Das, learned counsel for the respondents, is the Assam-Meghalaya Joint Cadre. On his reversion to the parent cadre, he was posted as Principal Secretary, Home & Poli tical Department, Government of Assam. Thus, he was released from the service of the A.S.E.B. and long 15 months thereafter, he could not have written the ACR o f the petitioner and that too, by a stroke of pen on a single day exercising jur isdiction of all the authorities i.e. recording, reviewing and accepting.

27. As per the said office order dated 26.12.1997, in case of non-availabili ty of all the 3 authorities, a certificate to that effect shall be kept in the ACR/Dossier for non-availability of the ACRs of a particular period [(clause 2(2 )(vi)].

28. For all the aforesaid reasons, the impugned Annexure-8 communication dat ed 8.12.2008 and the adverse remarks thereof stands interferred with and the wri t petition is allowed.

29. Although Mr. Das, learned counsel for the respondents has submitted that the petitioner should have made a representation against the adverse remarks in stead of rushing to the writ Court, but in absence of any higher authority than the Chairman of the respondent-Board, it would be a futile exercise to make a re presentation against the adverse remarks. It is in this context, the Apex Court in Devtt. Nath (supra) observed thus :- We further hold that when the entry is communicated to him the public se (cid:28)37. rvant should have a right to make a representation against the entry to the auth ority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representatio n must be decided by an authority higher than the one who gave the entry, otherw ise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and w ould result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be po ssible. (cid:29)

30. . The writ petition is allowed leaving the parties to bear their own costs