Ramesh Chandra vs Union of India and Others

We have heard Shri U.N. Sharma, Sr. Advocate assisted by Shri Chandan Sharma for the petitioner and Shri Yogesh Kumar for the respondents.

Ramesh Chandra son of Shri Bechan Ram at present posted as Deputy Commandant, 82 Bn. C.R.P.F. Ikhwan Chowk, Srinagar is before this Court for a direction to quash the orders dated 14.5.2010, 08.08.2009, 14.10.2008 communicated by letter dated 16.10.2008 and the order dated 19.5.2008.

Brief facts giving rise to the present writ petition are that the petitioner joined Central Reserve Police Force (CRPF) as Assistant Commandant on 25.02.2000 as directly appointed Gazetted Officer. After completion of basic training, he was posted in 72 BN CRPF, which was deployed in Meghalaya, Tripura and Jharkhand. On 04.09.2004 he was posted at 101 BN CRPF, RAF. It is averred that his work was always appreciated by the Commandant and senior offices from time to time. While he was serving at 101 BN RAF, he was never reprimanded or advised by his seniors.

On 28.05.2008 an intimation was made to the petitioner by the Commandant-115 BN vide his letter dated 28.05.2008 about adverse entries recorded in his Annual Confidential Report (ACR). Aggrieved with the said adverse entries endorsed in his ACR, he had proceeded to make a representation to the IGP, RAF vide letter dated 3.7.2008 but the same was rejected on 16.10.2008. Aggrieved with the said order, the petitioner filed an appeal to the DG, CRPF on 15.2.2009, which was also rejected on 08.08.2009. The grievance of the petitioner is that the appellate authority has not taken into account numerous points urged by the petitioner in his representation and also that the entries so made by the reporting officer and the entries so made in the present case have not been done on the basis of any objective assessment of facts and evidence and all of sudden the adverse remarks were made. The ACR were not written in a fair and objective manner and the authority concerned has not spelt out the reasons for upholding the said remark while rejecting the representation. Thereafter, the petitioner has proceeded to make a memorial against the adverse remarks before His Excellency the President of India through proper channel on 10.11.2009, which was also rejected.

Just to appreciate the present controversy, it would be appropriate to reproduce the adverse remarks, which were endorsed by the initiating officer in his ACR for the period from 1.4.2007 to 28.1.2008:--

Shri Umesh Narain Sharma, learned senior counsel, in support of his arguments, has submitted that Shri Neeraj Kumar (Initiating Officer) joined as Commandant 101 BN CRPF, RAF on 17.07.2007 although ACR has been initiated by him for the period from 1.4.2007 to 28.01.2008. The petitioner was only 87 days under his command. Although these facts were known to Shri Neeraj Kumar, Commandant 101 BN CRPF, RAF that the petitioner had not served under him for mandatory 90 days, he initiated ACR with malafide intention. Just to advance his argument Shri Sharma has relied upon a chart in which full description of his work under the command has been given, which for ready reference is given as below:--

Shri Sharma, learned senior counsel has submitted that as the petitioner has served under the command of Shri Neeraj Kumar for only 87 days and has not completed mandatory 90 days, therefore, Shri Neeraj Kumar has no right to give ACR for the period 1.4.2007 to 28.1.2008. He has also submitted that the work and conduct of the petitioner had always been appreciated by the senior officers and the same is evident from various appreciation letters, which had been issued by the senior officers, appended along with the present writ petition. On various occasions the petitioner had succeeded in maintaining law and order situation. During these duties he had commanded his Coy by leading from the front and with their assistant the District Administration was able to control the persisting disturbed law and order problem. Even for the relevant period, appreciation letters were also given by the senior officers under whom he had worked. Only for few days (87 days) the petitioner had worked under Shri Neeraj Kumar, Commandant and he had proceeded to record adverse remarks in his ACR and at no point of time he had advised the petitioner for improvement in his shortcomings either in writing or verbally. Therefore, it is submitted that the orders impugned cannot sustain under the present facts and circumstances.

Shri Yogesh Kumar, learned counsel for the respondents has vehemently opposed the writ petition and submitted that the claim of the petitioner that he served only 87 days under the command of initiating officer is misleading. As per the departmental instructions/clarification issued by the DIG (Pers.) dated 1.10.2008 it is provided that short leave period may also be included/counted for counting of minimum 90 days mandatory time for writing of ACR of any officer. The said communication has also been brought on record as Annexure CA-1 to the writ petition. Full details of leave of the petitioner had also been averred in para 7 of the counter affidavit. It had been brought on record that the petitioner had infact worked 120 days under the command of initiating officer and therefore the initiating officer had every right for writing his ACR.

Learned counsel for the respondents further makes submission that the representation of the petitioner was rejected after taking into account all materials available on record. He submits that after carefully examining the record and upon objective assessment of the facts available, considering all other relevant material on record and the contentions made by the applicant, concerned reporting and reviewing officers have done reporting/reviewing after carefully assessing the officer''s performance objectively, dispassionately and fairly. The full description of the grounds of assessment have been enumerated in paragraph 10 of the counter affidavit, which is reproduced as under:--

"(i) Officer was commanding officer of B/101 Bn. RAF during period in question, but when B/101 Bn. was detailed for deployment outside Allahabad City on requisition of Civil, instead of preparing their troops for deployment officer insisted to competent authority for sanction of 10 days earned leave w.e.f. 29.7.2007 to 8.8.2007 on pretext of mother illness, as such he failed to maintain absolute devotion to duty. As per CRPF Rules read with Group Centre & Battalion Officers Manual, Officer have to submit their earned leave application in 30 days advance. Still his leave was sanctioned but even after sanction of leave, officer had availed whole leave period within campus of Battalion whereas his parents were residing at his native place. Such type of remissness in duty not expected from first line of officer.

(ii) On another occasion, officer was relieved w.e.f. 14.11.2007 vide this office order No. T.IX.1/2007-101-Steno dated 14.11.2007 on temporary transfer to 108 Bn. in pursuance of lawful order of IG, RAF, New Delhi. Officer also got his reservation after exchange of Railway Warrant. But rather than proceeding on government duty officer had appeared before Second in Command of this Unit on 17.11.2007 at 1735 hrs with request to proceed to 108 Bn. location on 21.11.2007 i.e. after marriage of his cousin brother. He also got cancelled his Railway ticket at his own. Above instance clearly indicates that officer given priority to his private affairs on cost of government duty.

(iii) Thirdly, while he was availing leave in the family quarter within premises of this unit, he got his transfer order from 101 Bn. RAF to 115 Bn. CRPF. Firstly, to avoid his relieving on transfer to 115 Bn. CRPF he absented himself from leave and forwarded his application direct to IGP, CRPF, Central Sector, Lucknow (U.P.) for posting in 148 Bn. CRPF instead of 115 Bn. CRPF, but same was rejected by competent authority due to devoid of merit. Despite above, officer again taken another step which was also unbecoming for government servant as per CCS conduct Rules, according to which he brought outsides influence in matters pertaining to his transfer to 148 Bn. which was highly objected by IGP, CRPF, Lucknow (U.P.) vide their office letter No. T.IX.42/2008-CS-EC-I dated 23.1.2008. All above instance which amount to misconduct clearly reflects that during period in question officer had given more preference to his private affairs, therefore, observation of initiating officer was absolutely correct."

It is to be noted that ''Annual Confidential Report'' is an important document for judging an employee/public servant''s ability, initiative, capacity and integrity in discharging duties allotted to him. Further, it will provide a cementing platform to evaluate its potentiality to the higher posts in the cadre or otherwise. Ordinarily, the Annual Confidential Reports are recorded annually based on the subjective assessments in regard to the quality of service turned out by the Reported Officer during the calendar year/financial year April to March. It cannot be gainsaid that the said report is initiated by the Superior Officer of the concerned employee/public servant/Government servant as the case may be, who is in a position to monitor/observe the day to day activities of the employee for a certain period. Subsequently, the said report is reviewed by a higher authority and then accepted by still higher authority, so as to reach perfection in assessing/grading the concerned individual. In this regard, there are administrative instructions issued from time to time by the Department of Personnel and other officers concerned.

The Annual Confidential Reports/Rolls are to be recorded objectively and administrative instructions are issued from time to time laying emphasis that the Reporting Officers are required to state the justification of their reports, of course in the reports itself. To avoid or minimise the error of subjectivity, the Report is prepared at various levels. No wonder, each higher level has the utmost responsibility of moderating the report of the down below officers, before it reaches the stage of final level of acceptance. The Reporting Authority is the Authority who supervise the performance of employees reported upon. The ''Reviewing Authority'' is the authority who supervises the performance of Reporting Authority, the Accepting Authority is one who supervises the performance of Reviewing Authority. After review, it is the Accepting Authority who is to accept report with such modifications as he deems fit and proper, also, the rules may prescribe a time limit within which, the said officer is to perform.

At this juncture, it would be relevant to refer the decision of the Hon''ble Supreme Court in S. Ramachandra Raju V. State of Orissa, [, AIR 1994 SC 111] wherein the need to write these reports objectively, fairly and dispassionately in a constructive manner either commending or downgrading the assessment on conduct, character, efficiency or integrity of the officer in that behalf has been emphasised. The arduous task of writing the confidential reports is undoubtedly a solemn responsibility on the Reporting Officer requiring him to eschew his subjectivity and personal prejudices or proclivity or predilections and to reach himself a standard of efficiency to make objective assessment.

Hon''ble Supreme Court in State of U.P. v. Yamuna Shankar Misra [, (1997) 4 SCC 7] has laid down as follows:

"... the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency in administration would be augmented. The officer entrusted with the 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, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances."

The purpose of recording/writing the Annual Confidential Report is to maintain, if not to improve the present standard of public service. Therefore, it is important to usher in confidence the assistance of public servant to improve upon his performance where any shortfall in the standard of his service is noted in the ACRs. However, if the Report is adverse, communication of the Report becomes all the more important. Indeed, the affected officer ought to be provided with an opportunity to show that the Reporting Officer misjudged him or not assessed him in proper prospective. His representation is to reach the level, which is the highest of the levels of the Officers who has taken part in making the reports. The representation is to be attended to without any undue delay and the result is to be communicated to him.

It is to be remembered that an adverse entry in a confidential report will not affect the conditions of service of an employee. It cannot be lost sight of that recording an entry in the confidential roll of an employee by a Superior Officer is an Administrative Act based on subjective satisfaction which is to be made on an objective criteria.

Subject to repetition, we appropriately point out that entries in ACR undoubtedly reflected subjective assessment though required to be made on objective parameters and infact, they are administrative in character. Moreover, they cannot be subjected to judicial analysis/scrutiny except on certain specified grounds like malice, malafide and perversity. In the present case, though the petitioner has alleged malafide intention, but we do not find it to be justified.

After examining the record in question, we find that categorical averment has been made regarding the work of the petitioner during the period in which the assessment was made and full description has been narrated in detail in the counter affidavit, quoted above. The assessment of the initiating officer, who was posted on the spot, was approved by the competent authority in confirming the adverse entries. The petitioner has failed to mention anywhere in his representation as to why the initiating officer or any other authority were biased against him. Any such material has not been brought on record either in the pleadings or in representation dated 18.06.2008 to indicate that any foul play has been played against the petitioner. The assessment recorded in his confidential report by initiating officer and by reviewing officer were based on material evidences/facts. As indicate above, taking into consideration all the material fact available at the relevant point of time, the aforesaid adverse remarks were accorded and consequently the IG, RAF rejected the representation of the officer being devoid of merit with a speaking and reasoned order. The appeal against the same was also dismissed by the DG, CRPF. Moreover, the petitioner had also proceeded to make a memorial against the adverse remarks before His Excellency the President through proper channel on 10.11.2009, which was also rejected.

Hon''ble Supreme Court in Nutan Arvind v. Union of India & Anr., , (1996)2 SCC 488; UPSC v. H.L. Dev and Ors., , AIR 1988 SC 1069; Dalpat Abasahab Solanke v. B.S. Mahajan, , AIR 1990 SC 434, Anil Katiyar v. UOI & Ors., and Union of India & Anr. v. S.K. Goel & Ors. [Civil Appeal No. 689 of 2007 (arising out of SLP (C) No. 2410/2007) has held that when a high level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the courts are precluded from sitting over the assessment made by the DPC as an appellate authority.

The Hon''ble Supreme Court have laid down the boundaries of the scope of judicial intervention in matters of ACRs. In the case of Nutan Arvind (Smt.) v. Union of India & Anr., , (1996) 2 SCC 488, the Hon''ble Supreme Court held as under:--

"5. The DPC which is a high level committee, considered the merits of the respective candidates and the appellant, though considered, was not promoted. It is contended by learned counsel for the appellant that one K.S. Rao was the officer at the relevant time to review the performance of the appellant whereas in fact one Menon had reviewed it. The latter was not competent to review the performance of the appellant and to write the confidentials. We are afraid we cannot go into that question. It is for the DPC to consider at the time when the assessments of the respective candidates is made. When a high level committee had considered the respective merits of the candidates assessed the grading and considered their cases for promotion, this Court cannot sit over the assessment made by the DPC as an appellate authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is not competent to write the confidentials is for them to decide and call for report from the proper officer. It had done that exercise and found the appellant not fit for promotion. Thus we do not find any manifest error of law for interference."

In State of M.P. v. Srikant Chapekar, [, AIR 1993 SC 1221] in a case where Tribunal had interfered and held that adverse remarks in ACR were not sufficient to deny promotion, the Apex Court held that the refusal to promote an employee being ''lazy'' or ''late comer'' are valid grounds for denial and the Tribunal "out-stepped its jurisdiction" in reaching the conclusion that they were vague. The Court further held that it is not the function of Administrative Tribunals to assess the service of Government servants and that the function to evaluate the ACRs has been vested in the Departmental Promotion Committees''.

It is well settled that it is not the function of the judicial forums to assess the service of government servants and that the function to evaluate the ACRS has been vested in the department itself. The Courts of law are to act with care and utmost circumspection, when they interfere with the administrative matters relating to executive function.

In the light of detailed quantitative and qualitative discussions mentioned supra and on analysis of entire gamut of the matter based on available material on record, we come to an inevitable conclusion that the assessment performance of the petitioner has been made based on subjective assessment by the concerned officer. The case in hand is not such, where judicial intervention is required.

In the result, the writ petition is dismissed.