The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1117 of 2022 Jitendra Kumar … … Petitioner - V E R S U S – 1. Union of India 2. The Director General of I.T.B.P. (Indo Tibetien Border Police), Ministry of Home Affairs, Block-2, C.G.O. Complex, Lodhi Road, New Delhi 3. The Inspector General, I.T.B.P. (Ministry of Home Affairs), Village – Kanhasaiya Camp, P.O. and P.S. – Kokta, Teh. – Huzur, Bhopal, Madhya Pradesh. 4. The Dy. Inspector General, I.T.B.P. (Ministry of Home Affairs), Vijaypura, Devanahali, P.O. and P.S. – Devanahali, Bangaluru (Karnataka). 5. The Commandant, I.T.B.P., 40th Battalion, Sukurhuttu, P.O. – Kanke, P.S. – Gonda, District – Ranchi, Jharkhand 6. The Dy. Commandant, I.T.B.P., 40th Battalion, Dukurhuttu, P.O. – Kanke, P.S. – Gonda, District – Ranchi, Jharkhand. … … Respondents. CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioner For the UOI : :
Legal Reasoning
Further, similar issue fell for consideration before this Court in the case of Budh Ram Toppo Vs. The State of Jharkhand and others in W.P.(S) No. 5817 of 2016 and similar view was reiterated by this Court. The further ground for rejection of case of the petitioner for grant of MACP was that punishment of warning was there against him for absence from duty for one day, which is also not at all tenable and the same is fit to be quashed and set aside on the ground that the same has already lost its effect. The said ground cannot be a ground for withholding MACP benefits. 10. The arguments advanced by learned counsel for the Union of India is not at all appreciated rather the same is totally misconceived. The respondent authorities are not permitted to act against the settled rules. In the facts and circumstances narrated hereinabove, this Court is of the considered view that petitioner is entitled for the benefits of MACP and the same has to be considered in accordance with law and in view of observations and directions made hereinabove. 11. As a sequel thereof, the Annual Performance Assessment Report (A.P.A.R.) for the period 01.01.2018 till 31.12.2018 (Annexure-1), issued by Commandant, ITBP and the order dated 27.05.2020 (Annexure-3), issued by the Dy. Inspector General, SHQ (BGLR), I.T.B.P., are hereby quashed and set aside. The respondents are directed to consider representation of the petitioner pending before the Director General of ITBP and pass appropriate order in accordance with law taking into consideration the observations made hereinabove. 12. With the aforementioned observations and direction, the writ petition stands allowed. (Dr. S.N. Pathak, J.) RC- 4 W.P.(S) No. 1117 of 2022
Arguments
Mr. Shadab Bin Haque, Advocate Mr. Sunil Kumar, CGC 05/01.07.2024 2. Heard the parties. Petitioner has approached this Court for quashing the Annual Performance Assessment Report (A.P.A.R.) for the period 01.01.2018 till 31.12.2018, issued by Commandant, ITBP, whereby the assessment of reporting authority has awarded 5.5 marks to him but as a matter of surprise, the assessment of reviewing/counter sign authority has made 5.5 to be equal to 5 in place of 6, which is against the settled formula of mathematical calculation. Petitioner has further prayed for a direction upon the respondents to consider overall grading in his APAR for the year 2018 to be considered as 5.5 = 6 i.e. very good and, thereafter, grant MACP to him with effect from the date of completion of his 30 years of service i.e. on 25.04.2021. The petitioner has also prayed for quashing the order dated 27.05.2020, issued by the Dy. Inspector General, SHQ (BGLR), I.T.B.P., whereby his representation against the overall grading in his APAR for the year 2018 has been rejected by stating therein that the ITBP has decided not to alter the overall numerical score ‘good’ grading RC- 1 W.P.(S) No. 1117 of 2022 awarded in his APAR for the year 2018. Further prayer has been made by the petitioner for a direction upon the respondents to consider his representation which is pending before the Director General of ITBP. 3. Mr. Shadab Bin Haque, learned counsel appearing on behalf of the petitioner vociferously argues that the impugned order is not tenable in the eyes of law and as such the same is fit to be quashed. The respondents are empowered to come with the appraisal performance report. In the said APR, they have already considered the petitioner as ‘good’ whereas ‘very good’ was the requirement for consideration of his case for granting MACP. There is no quarrel to the settled legal proposition that the respondents, after the Performance Appraisal can give remarks to be ‘very good’ or ‘good’. In the instant case, the respondents have not bothered to communicate the petitioner about the remarks in his APAR for assessment year 2018 and without serving any notice, the same has been done. In absence of any communication, the same is not tenable and liable to be interfered with by this Court. Learned counsel further argues that the punishment is minor punishment and has already lost its effect and that is not ground in the APR, which has come in the counter affidavit. The respondents cannot improve their case by way of bringing new fact in the counter affidavit. 4. Mr. Sunil Kumar, learned counsel representing Union of India opposes the contention of learned counsel for the petitioner and submits that after Performance Appraisal, it has been found that the petitioner’s report is only ‘good’ and not ‘very good’. There is no denial of the fact that ‘very good’ was the requirement of his case for grant of MACP benefits and as such rightly his case has not been considered. Learned counsel further argues that the petitioner was inflicted with the punishment of warning for absence of one day and that also becomes ground for non-consideration of his case for grant of MACP. 5. Having heard counsel for the parties and considering facts and circumstances of the case, this Court is of the considered view that the grounds of the respondents for non-consideration of case of the RC- 2 W.P.(S) No. 1117 of 2022 petitioner for grant of MACP is not at all tenable in the eyes of law and the same is not acceptable and fit to be rejected. Law is well settled. Any remarks which leads to granting of report i.e. APAR , has to be communicated to the concerned. 6. The issue regarding ACR fell for consideration in the case of Sukhdev Singh v. Union of India reported in (2013) 9 SCC 566 and the Hon’ble Court held in para-8 as under: taken the view 8. In our opinion, in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] 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.” 7. In the case of Dev Dutt v. Union of India reported in (2008) 8 SCC 725, the Hon’ble Apex Court has held in para-17 and 18 as under: “17. In our opinion, every entry in the ACR 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 v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution. 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 RC- 3 W.P.(S) No. 1117 of 2022 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.” 8. 9.