Mohammad Rafiq, J.
1. Union of India through the Secretary in its Department of Communication and Information Technology and two others have approached this court by way of present writ petition challenging order dated 16.04.2015 of the Central Administrative Tribunal, Jaipur Bench, Jaipur, (for short, 'the Tribunal') in Original Application No.430/2011, whereby the Tribunal allowed the original application of respondent herein and set-aside order dated 01.10.2010 rejecting his representation against adverse remarks recorded in his ACR of the year 2007-08, with direction to petitioners herein to call for a review meeting of screening committee within two months to reassess suitability of respondent for the purpose of grant of Senior Administrative Grade (SAG) and while doing so the committee shall exclude the ACR of the year 2007-08 and thereafter the petitioners to pass appropriate orders on the basis of recommendations of such review screening committee within a period of one month thereafter, with consequential benefits.
2. Respondent is a member of Indian Telecom Services Group 'A' and was, at relevant time, posted as Deputy General Manager, Bharat Sanchar Nigam Limited, Sikar, under the office of General Manager Telecom, District Ajmer. The General Manager, Telecom District Ajmer was his reporting officer and the Chief General Manager Telecom, Rajasthan Circle, Jaipur, was the reviewing authority. For two periods from 13.05.2005 to 31.03.2006 and 01.04.2006 to 31.03.2007, the reporting officer graded the respondent as "very good", and reviewing authority endorsed the same, but thereafter for the period from 01.04.2007 to 31.03.2008, the reporting officer rated him only "good". Grievance of respondent was that despite there being no deficiency or inefficiency in his work performance, the reporting officer wrongfully rated him "good" in the ACR of the year 2007-08, instead of 'very good', as was given to him in his ACRs of previous two years i.e. 2005-06 and 2006-07. Respondent was never intimated of such lower grading nor issued any advisory to improve the work performance. His rating was down graded only for the purpose to deprive him of due promotion/placement to the cadre of SAG. The respondent produced before the Tribunal copies of ACRS for the years 2005-06, 2006-07, 2007-08, 2008-09 and 2009-10 and asserted before the Tribunal that in the ACRs of the years 2008-09 and 2009-10 his performance has been rated as "very good". Reliance was placed on the DoP&T Office Memorandum dated 13.04.2010 containing instructions regarding communicating the below benchmark grading to the officer. The below benchmark grading for the year 2007- 08 of respondent was communicated to him and representation was sought. The downgrading of benchmark was thus communicated to respondent vide letter dated 13.05.2010 informing him that if he was not satisfied with the same he may submit representation through General Manager Telecom, Rajasthan Circle, Jaipur. Respondent accordingly submitted representation on 19.06.2010 contending that neither he was informed of any shortcoming nor given sufficient time to improve any such deficiency so as to justify his downgrading of benchmark from "very good" to only "good". The averment of respondent that he worked under same reporting officer and reviewing authority between the years 2005- 2006 and 2006-2007; both of them rated his performance as "very good" in respect of years 2005-06 and years 2006-07, but now in year 2007-08 his work performance was rated as "good". How could it be possible? When in two previous years his work performance was rated as "very good", how could it be downgraded in subsequent year without intimating him or issuing any advisory to improve the work performance. Writ petitioner no.2 – Bharat Sanchar Nigam Limited through its Chairman and Managing Director, vide order dated 01.10.2010, rejected representation of respondent, which prompted him to file original application before the Tribunal. The Tribunal, by impugned order, allowed original application in the terms indicated above.
3. Shri Rajdeepak Rastogi, learned Additional Solicitor General appearing for writ petitioners, argued that impugned order has been passed without considering material available on record as also provisions of law and submissions made by petitioners. Before considering the respondent for grant of NFU in SAG of ITS Group-A, below benchmark grading for the year 2007-08 was communicated him and in case of dissatisfaction therewith, he was asked to submit representation in pursuance of DoP&T Office Memorandum dated 14.05.2009 and 13.04.2010. Respondent made a representation and competent authority, after obtaining comments of reporting officer and reviewing authority in accordance with DOP&T OM dated 14.05.2009, and carefully examining representation of respondent as well as comments of reporting officer and reviewing authority on the same, decided to maintain the grading awarded by reporting officer and reviewing authority. Quality of work performance of any employee may differ during different periods even under same reporting officer/reviewing authority. It is only up to reporting officer and reviewing authority to judge his performance and give suitable grading.
4. It is argued that learned Tribunal did not find any fault with two-tier system of APAR assessment, grant of opportunity to respondent to file representation being reported upon and provision for competent authority to decide such representation. However, it has failed to appreciate the guidelines issued by the Government of India from time to time on the subject, in correct perspective. Guidelines issued by the Government of India through DoP&T Office Memorandum No.22011/5/86-Estt(D) dated 10.04.1989 as amended vide Office Memorandum No.22011/3/91-Estt(D) dated 27.03.1997 for DPCs, which stipulated that "The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometimes the overall grading in ACR may be inconsistent with the grading under various parameters or attributes."
5. Learned Additional Solicitor General also argued that duly constituted selection committee having expertise on the subject, has considered the representation of the respondent and after considering the grading of the year 2007-08 and material on record, has rejected representation of respondent vide order dated 01.10.2010. The Tribunal has not considered judgment of the Supreme Court in Dalpat Abasaheb Solunke etc. v. Dr. B.S. Mahajan etc., AIR 1990 SC 434, wherein it was observed that whether a candidate is fit for a particular post or not, has to be decided by duly constituted committee, which has expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala-fides affecting the selection etc.
6. Learned Additional Solicitor General further argued that as per prevailing rules there was no provision for communicating the below benchmark grading to concerned officer, however, same had been communicated to respondent when DoP&T Office Memorandum dated 14.05.2009 and 13.04.2010 comes into vogue for representation. The competent authority has examined representation of respondent as per instructions contained in above said DoP&T Office Memorandum and decided to maintain below benchmark grading. In view of above, action of petitioners is legal and justified. Neither respondent has levelled any allegation of malafides nor ill-will on the part of reporting officer or reviewing authority, nor Tribunal has found any malafide or fault in procedure adopted by the DPC while assessing the officer for NFU. The directions passed by the Tribunal about the order of competent authority and to exclude valid ACR and to convene review meeting would be usurpation of functions of the executives by the court.
7. We have given our anxious consideration to submissions made by learned Additional Solicitor General for petitioners and also perused the impugned judgment.
8. The Tribunal on perusal of ACRs for all three years, namely, 2005-06, 2006-07 and 2007-08, found that highly damaging remarks have been recorded by same reporting officer and reviewing authority against the respondent, which could be regarded as personal attributes as different from performance parameters such as communication skills, capacity for appraisal, ability to weigh pros and cons before taking a decision, organising capability, domain knowledge in respect of the area of work etc. The remarks appear virtually to be opposite of those entered by the same authority in previous years. The Tribunal has reproduced the remarks recorded in the ACRs of the years 2005-06, 2006-07 and adverse remarks in the ACR of the year 2007-08. The Tribunal thereafter has recorded following finding:-
"6. It would be clear from remarks entered for the year 2007-08 that they were clearly adverse which warranted communication to the officer within the time limits prescribed to enable him to submit his representation. May of the remarks were the exact opposite of the positive attributes found in him in the previous years by the same authority. Admittedly, remarks were not communicated to the applicant within the time limits prescribed for such communication under the prevailing rules governing ACRs. There is also no evidence of the attention of the officer being drawn during the year itself to his falling standards along with necessary caution/advice so as to give him a chance to improve."
9. We have, in order to test correctness of the judgment of the Tribunal, also perused the remarks entered in the ACRs of the petitioner for the years 2005-06 and 2006-07 and compared the same with the remarks recorded in the ACR of the year 2007-08. In the first ACR of the year 2005-06, it is mentioned that the respondent has very good knowledge of technical field and also level of application of related instructions was very good and that he has very good knowledge of administrative matters and his level of application of related instruction was very good. He was willing to assume responsibility. He has very good organising capacity, motivating ability and timely and proper guidance giving capability. He has very good capacity/resourcefulness to anticipate the problems in advance and to take action to handle such situations as well as unforeseen situations. He has very good quality of decision making and is able to weigh pros and cons of alternatives. He has good capability of communication and present arguments in oral and written way. He has very good skill and capacity of evaluating and recording performance of subordinates in an impartial and objective manner. Similarly, in the ACR of the year 2006-07 again the reporting officer has made remarks that the respondent has very good technical knowledge. He has very good administrative knowledge. He has very good capacity to set targets. He can anticipate change, understood environment and contributed new ideas. He was generally willing to assume responsibilities. He has very good organising capacity and was able to motivate and provide timely and proper guidance to subordinates. He could handle unforeseen situations at his own and was willing to take responsibility. He has good ability to communicate and present arguments. He has very good skill and capacity in evaluating and recording performance of subordinates in an impartial and objective manner. These remarks have again been approved by the reviewing authority. Now as against these remarks, the same reporting officer in the ACR of the year 2007-08 has recorded that technical knowledge of the respondent is good. Financial knowledge is poor. Administrative knowledge is very poor particularly in tender work/rulings application. He was always have to be chased to set targets for himself and subordinates. He hardly understood the environment in anticipating change and contributing new ideas/methods of work he was just average. He was never willing to assume responsibility, had poor organising capacity and was average in motivating/providing timely and proper guidance to staff. He was incapacitated and very poor in anticipating problems and under guidance could plan to meet such situations. He could not handle unforeseen situations on his own. He was never willing to take additional responsibility and new areas of work. He had very poor decision making quality and also very poor in weighing pros and cons of alternatives. He has average ability to communicate and present arguments in written and poor in verbal.
10. We are inclined to agree with the view taken by learned Tribunal that whatever remarks were entered in the ACR of the year 2007-08 with regard to personal attributes and traits of the respondent, conveyed a diametrical opposite view by the same reporting officer as well as reviewing authority, who had entertained a very good opinion about the same officer in previous two years. Nothing has been brought on record to show whether any communication was given to the respondent to improve his work performance or whether any advisory or warning was issued to him or that his attention was drawn to improve performance upon following standards along-with necessary questions/advice and yet he has failed to improve the performance despite giving him chance.
11. The Supreme Court in Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., AIR 1992 SC 1020, in Para 23 and 24 of judgment, held as under:-
"23. We now come to the decision in Brij Mohan Singh Chopra v. State of Punjab, relied upon by the learned counsel for the petitioner. In this case, there were no adverse entries in the confidential records of the appellant for a period of five years prior to the impugned order. Within five years, there were two adverse entries. In neither of them, however, was his integrity doubted. These adverse remarks were not communicated to him. The Bench consisting of E.S. Venkataramiah and K.N. Singh JJ. quashed it on two grounds viz.,
1. It would not be reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee.
2. In Gurdyal Singh Fiji v. State of Punjab (1979) 3 SCR 518 : (AIR 1979 SC 1622) and Amarkant Chaudhary v. State of Bihar (1984) 2 SCR 299 : (AIR 1984 SC 531), it was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion. The same consideration applies where the adverse entries are taken into account in retiring an employee pre-maturely from service. K.N. Singh, J. speaking for the Bench observed: "it would be unjust and unfair and contrary to principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of.
This is the first case in which the principles of natural justice were imported in the case of compulsory retirement even though it was held expressly in J.N. Sinha (AIR 1971 SC 40) that the said principles are not attracted. This view was reiterated by K.N. Singh, J. again in (1989) 4 SCC 664 : (AIR 1989 SC 2218) Baidyanath Mahapatra v. State of Orissa,(Bench comprising of K.N. Singh and M.H. Kania, JJ.). In this case, the Review Committee took into account the entire service record of the employee including the adverse remarks relating to the year 1969 to 1982 (barring certain intervening years for which no adverse remarks were made). The employee had joined the Orissa Government service as an Assistant Engineer in 1955. In 1961 he was promoted to the post of Executive Engineer and in 1976 to the post of Superintending Engineer. In 1979 he was allowed to cross the efficiency bar with effect from 1.1.1979. He was compulsorily retired by an order dated 10.11.1983. The Bench held in the first instance that the adverse entries for the period prior to his promotion as Superintending Engineer cannot be taken into account. It was held that if the officer was promoted to a higher post, and that too a selection post, notwithstanding such adverse entries, it must be presumed that the said entries lost their significance and cannot be revived to retire the officer compulsorily. Regarding the adverse entries for the subsequent years and in particular relating to the years 1981-82 and 1982-83 it was found that though the said adverse remarks were communicated, the period prescribed for making a representation had not expired. The Bench observed (at p.2221 of AIR):
".... These facts make it amply clear that the appellant's representation against the aforesaid adverse remarks for the years 1981-82 and 1982-83 was pending and the same had not been considered or disposed of on the date of impugned order was issued. It is settled view that it is not permissible to prematurely retire a Government servant on the basis of adverse entries, representations against which are not considered and disposed of. See Brij Mohan Singh Chopra v. State of Punjab, (AIR 1987 SC 948)."
24. On the above basis, it was held that the Review Committee ought to have waited till the expiry of the period prescribed for making representation against the said remarks and if any representation was made it should have been considered and disposed of before they could be taken into consideration for forming the requisite opinion. In other words, it was held that it was not open to the Review Committee and the Government to rely upon the said adverse entries relating to the years 1981-82 and 1982-83, in the circumstances. Unfortunately, the decision in J.N. Sinha (AIR 1971 SC 40) was not brought to the notice of the learned Judges when deciding the above two cases."
12. It is trite that an officer entrusted with duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, on statement of facts, an overall assessment of the performance of the Reporting Officer. However, at the same time, the Reporting Officer before forming an opinion adverse to the Subordinate Officer should confront the officer with such information and then only the same may be made part of the report. Reference in this connection may be made to the following observation of the Hon'ble Apex Court in State of U.P. v. Yamuna Shanker Misra reported in 1997 (4) SCC 7:-
"....The Officer entrusted with the duty to writ confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an over all assessment of the performance of the Subordinate officer. It should be founded upon facts or circumstances.
Before forming an opinion to be adverse, the Reporting Officers writing confidential should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him."
12A. The Apex Court in Union of India v. E.G. Nambudiri reported in 1991(3) SCC 38 held as under:-
"....Therefore, in the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reasons. But the competent authority has no licence to act arbitrarily,it must act in a fair and just manner. It is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. However, it is does not mean that the administrative authority is at a liberty to pass orders without there being any reasons for the same. In Governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion, if such an order is challenged in a Court of law, it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. If is always open to an administrative authority to produce evidence aliunde before the Court to justify its action."
13. The Supreme Court in M.A. Rajasekhar v. State of Karnataka reported in 1996 (10) SCC 369 were considering somewhat similar remarks recorded in the confidential report of the appellant that he "does not act dispassionately when faced with dilemma" it was in this context their Lordships in para no.4 of the judgment observed as under:-
"It is now settled law that object of making adverse remarks is to assess the competence of an officer on merits and performance of an officer concerned so as to grade him in various categories as outstanding, very good, good, satisfactory and average, etc. The competent authority and the reviewing authority have to act fairly or objectively in assessing the character, integrity and performance of the incumbent."
14. Having recapitulated the law on the subject, their Lordships in para no.5 of the report in M.A. Rajasekhar, supra, further observed as under:-
"It was found that his integrity has not doubted and his work also in all those respects was found to be satisfactory. Under those circumstances, the remarks that he "does not act dispassionately when faced with dilemma" must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. He should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. Even when he acted in a dilemma and lacked objectivity, in such circumstances, he must be guided by the authority as to the manner in which he acted upon. Since this exercise has not bee done by the respondents, if would be obvious that the above adverse remarks was not consistent with law."
15. The Supreme Court in Sukhdeo v. The Commissioner Amravati Division, Amravati & Anr reported in JT 1996 (5) SC 477 while following the earlier judgment in State Bank of India etc. v. Kashinath Kher & Ors etc (JT 1996 (2) SC 569 at 578 observed as under:-
"the controlling officer while writing confidential and character role report, he 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. It 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 that 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."
16. A two judge bench of Supreme Court in U.P. Jal Nigam & Ors. v. Prabhat Chandra Jain & Ors.-(1996) 2 SCC 363, has held that the downgrading by the Review/Accepting Officer in comparison to his previous grading without notice or opportunity of hearing to the employee concerned is illegal, but in Union of India & Anr. v. Major Bahadur Singh (2006) 1 SCC 368 another two Judge bench of the Supreme Court took the contrary view. Subsequent thereto, the two judge bench of Supreme Court in yet another case in Dev Dutt v. UOI and Others -(2008) 8 SCC 725, had the occasion to consider the question of communication of the year in the APAR of public servant. In that judgment, the Supreme Court re-visited all its previous judgments and concluded that every entry of APAR should be communicated to the employee within reasonable period, whether it is `fair', `good' or `very good' entry.
17. A three-Judge bench judgment of the Supreme Court in Abh
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ijit Ghosh Dastidar v. Union of India & Others - (2009) 16 SCC 146, approved of the reasoning given by Dev Dutt, supra and held in para 8 as under: "Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him." 18. In view however of the conflict view expressed in different decisions, reference was made to the three Judge bench of the Supreme Court in Sukhdev Singh v. UOI & Others, (2013) 9 SCC 573. The Supreme Court in Sukhdev Singh approved of the judgment in Dev Dutt, supra and Abhijit Ghosh Dastidar, supra and held 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 up gradation 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. Earlier judgments of Supreme Court in Satya Narain Shukla v. Union of India & Others - (2006) 9 SCC 69 and K.M. Mishra v. Central Bank of India & Others - (2008) 9 SCC 120 taking a contrary view were declared to be not laying down a good law. 19. In view of above discussion, we find the approach taken by the Tribunal fully in conformity with the law laid down by catena of judgments of the Supreme Court. Impugned judgment therefore cannot be said to suffer from any infirmity. Accordingly, the writ petition is dismissed. Consequently, stay application, filed therewith, also stands dismissed. Petition dismissed.