Sudarshan Kumar Soni vs State of M.P. and others

Appellant has filed this appeal against the order dated 19.08.2016 passed in writ petition No.20016/2015.

Appellant was appointed as Class-I Officer after facing examination by Public Service Commission. He was promoted to the post of Additional Assistant Development Commissioner and Deputy Commissioner which is a Class-I post. The appellant was further promoted to the post of Joint Commissioner.

The dispute in the present case is in regard to awarding grading to the appellant by the Accepting Authority. At the relevant time, the

appellant was posted as Chief Executive Officer District Panchayat Dindori. He submitted details in a requisite proforma for recording his ACR for the year ending 31 st March 2014. The forwarding Officer i.e. Collector Dindori awarded grading of A+ to the appellant with the observation that "had done excellent work in reaching out individual beneficiary Schemes to all Citizens". The Reviewing Officer the then Development Commissioner accepted the grading A+ awarded by the Collector to the appellant with the observation "Did excellent work in SSSM Grade-II MNREGA of the housing [19] MDM [8] overall rating is ''outstanding A+". It was sent to the Minister Panchayat and Rural Development. However, the Minister awarded a grading [kha] "good" to the appellant with the following observations:-

"VERNACULAR MATTER OMITTED"

The aforesaid grading was then forwarded to the Department by the Secretary of the Minister to the Deputy Secretary of the Department vide covering memo dated 31.12.2014. The Minister did not mention the date when he had awarded grading to the appellant. Due to the grading awarded to the appellant by the Accepting Officer his overall grading, was changed and his case was not forwarded by the Department for award of I.A.S. The grading was not communicated to the appellant. Appellant filed an application under

Right to Information Act . Thereafter, the record of awarding of grading to the appellant was supplied to him. Then the appellant submitted a representation to the Department on 22.07.2015 against his down grading. Thereafter the appellant filed a writ petition before this Court.

Appellant pleaded in the writ petition that the grading awarded by the Approving Authority i.e. Minister is arbitrary and illegal. He had no occasion to supervise the work of the appellant. There is no record in the file that on what basis the appellant was awarded grading by the approving Authority contrary to the gradings awarded by the Presenting Officer and Reviewing authority. It is further contended by the appellant that the Minister awarded grading beyond the period fixed by the Department for completion of ACR writing of Class-I Officers hence, the grading which is awarded by the Minister be treated as nonest.

The writ Court rejected the contentions of the appellant by holding that the Minister assigned reasons in awarding grading to the appellant of "good". Those reasons could not be interfered by the writ Court in exercise of writ jurisdiction. However, it is obligatory on the part of the authority to consider the representation filed by the appellant. The Court disposed of the writ petition with a direction to the competent Authority to consider and decide the representation, if any, may be preferred by the appellant within a period of 30 days by reasoned order.

Learned Senior counsel appearing on behalf of the appellant has contended that Accepting Authority down graded the appellant without any reason and the reasons assigned by the Accepting Authority are eye wash because there was no material available with the accepting Authority to record the reasons. The authority recorded the reasons on his whims and with malafide intention. The authority did not mention the date deliberately because the Minister had written the A.C.R beyond the period fixed by the Department hence, the grading of the Minister is to be rejected. In support of her contentions, learned Senior counsel relied on the following judgments:- (i) Dev Dutt vs. Union of India and others, (2008) 8 SCC 725

(ii) Abhijit Ghosh Dastidar vs. Union of India and others, (2009) 16 SCC 146.

(iii) Ram Niwas Awasthy vs. State of M.P. and others 2014) (4) MPLJ 102.

(iv) Tara Chand Soni vs. State of M.P. and others, 2015 (2) MPLJ 514.

Contrary to this, learned counsel appearing on behalf of the State has contended that Accepting Officer i.e. Minister has assigned cogent reasons in awarding grading "good" to the appellant. It is not necessary for the Approving Authority to accept grading Awarded by the Reviewing authority or the forwarding authority. The writ Court has assigned cogent reasons and circumstances in not interfering with the grading awarded by the Minister hence, there is no merit in this appeal.

The question for consideration before this Court is that whether the grading awarded by the Accepting Authority to the appellant is just and proper and whether this Court in exercise of power under Article 226 of the Constitution of India can interfere with the grading awarded by the accepting Officer i.e. Minister.

The writ Court refused to interfere with the grading awarded by the Accepting Authority on the ground that the Authority had given reasons in awarding the grading. The Court further observed that writing confidential report is primarily and essentially administrative function. The Court may not interfere in case of complaints against adverse remark and to substantiate its own judgment for that of the reviewing or reporting Officer. The writ Court further observed that there was material before the Accepting Authority to write the remarks and awarding grading. The writ Court also placed reliance on the decisions of the apex Court in the matter of Rajendra Singh Verma and others vs. Lieutenant Governor (NCT of Delhi) and others (2011) 10 SCC 1 and the decision of Hon''ble Division Bench of this Court in the matter of Mohinder Singh Chhikara vs. Union of India 1991 MPLJ 725.

We would like to examine the legal position in regard to interference by the Court in the matter of writing of ACR of an employee and awarding grading on the basis of reasonings put forth by the concerned authority.

The apex Court in the matter of Rajendra Singh Verma and others vs. Lieutenant Governor (NCT of Delhi) and others (2011) 10 SCC 1 has held as under in regard to writing the confidential report:

"147. Writing the confidential report is primarily and essentially an administrative function. Normally tribunals/Courts are loath to interfere in cases of complaints against adverse remarks and to substitute their own judgment for that of the reporting or reviewing officers. It is because these officers alone are best suited to judge the qualities of officials working under them and about their competence in the performance of official duties entrusted to them. Despite fear of abuse of power by prejudiced superior officers in certain cases, the service record contained in the confidential reports, by and large, reflects the real personality of the officer.

The object of writing confidential reports and making entries therein is to give an opportunity to the public servant to improve excellence. Article 51 A(j) of the Constitution enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Therefore, the officer entrusted with the duty to write C.R. has a public responsibility and trust to write the C.R. objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. Opportunity of hearing is not necessary before adverse remarks because adverse remarks by themselves do

not constitute a penalty. However, when the order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of 12 the officer concerned which would include non- communicated adverse remarks also. Thus it is settled by several reported decisions of this Court that un- communicated adverse remarks can be taken into consideration while deciding the question whether an official should be made to retire compulsorily or not."

In the aforesaid judgment, the apex Court has observed that "the officer entrusted with the duty to write C.R. has a public responsibility and trust to write the C.R. objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer". In our opinion, the observations made by the Hon''ble Apex Court could be a Bench Mark for the Court to decide the allegations made by an employee to the effect that whether the authority has acted fairly and honestly in making the observations and awarding grading. It is a fact that ACR grading awarded to an employee has an important bearing on the future service prospects of an employee because on the basis of ACR gradings awarded to an employee, he may be promoted or superseded. As in the present case, the case of the appellant was not forwarded for award of I.A.S. due to lower grading awarded by the Accepting Officer i.e. Minister.

Hon''ble Apex Court in the matter of Dev Dutt vs. Union of India and others 2008 (8) SCC 725. In the aforesaid land mark judgment has held that it is obligatory on the part of employer to communicate the employee every ACR entry even if it is "good" or "very good" or "adverse" because ACR grading is to affect service career of an employee. Earlier there was practice prevalent that only "adverse entries" be communicate to an employee. However, the Hon''ble apex Court has applied the rule of natural justice and held that an employee is eligible to get every ACR grading so he can prepare himself for better grading or to make a representation, even if the ACR entry is not "adverse". The apex Court has held as under:-

"39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders."

The apex Court itself observed that it is developing principle of rule of natural justice. The Hon''ble Court quoted several judgments in regard to rule of natural justice and one of the observation as back as in the year 1885 made by Lord Esher M.R., is as under:-

"27. "Natural justice is the natural sense of what is right and wrong."

The Supreme Court in Vinod Kumar vs. State of Haryana and others [2013] 16 SCC 293 has held as under while considering the case of expunging adverse ACR of an employee:-

"23. We may usefully refer to the judgment of the English Court in the case of Roberts v. Hopwood laying down the law in the following terms: ".. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what her likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably."

The matter can be looked into from another angle as well.

In those cases where Courts are concerned with the judicial review of the administrative action, the parameters within which administrative action can be reviewed by the courts are well settled. No doubt, the scope of judicial review is limited and the courts do not go into the merits of the decision taken by the administrative authorities but are concerned with the decision making process. Interference with the order of the administrative authority is permissible when it is found to be irrational, unreasonable or there is procedural impropriety. However, where reasonable conduct is expected, the criterion of reasonableness is not subjective but objective; albeit the onus of establishment of unreasonableness rests upon the person challenging the validity of the acts. It is also trite that

while exercising limited power of judicial review on the grounds mentioned above, the court can examine whether administrative decisions in exercise of powers, even if conferred in subjective terms are made in good faith and on relevant considerations. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or facts in a material respect.(See: M.A.Rasheed & Ors. v. The State of Kerala ; (1974) 2 SCC 687).

The decision of the administrative authority must be related to the purpose of the enabling provisions of Rules or Statutes, as the case may be. If they are manifestly unjust or outrageous or directed to an unauthorized end, such decisions can be set aside as arbitrary and unreasonable. Likewise, when action taken is ultra vires, such action/decision has no legal basis and can be set aside on that ground. When there are Rules framed delineating the powers of the authority as well as the procedure to be followed while exercising those powers, the authority has to act within the limits defined by those Rules. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness."

The principle of law is that if the authority abuses his power by acting in a bad faith or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness, then administrative act is bad in law. The apex Court further observed as under:-

"52.The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi- judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."

Keeping in mind the principle of law laid down by the Hon''ble apex Court in the aforesaid quoted judgments, we would like to examine the facts of the present case to ascertain whether the grading and remark awarded to the appellant by the Approving authority then Minister are proper or not.

At the relevant time, the appellant was working as Chief Executive Officer, Janpad Panchayat Dindori. He was under the control of the then Collector Dindori Mr. Raghuraj Rajendran, who was the reporting Officer. He made following observations against each specification prescribed in the format for writing ACR:

"[A] 1. Whether there was lacking on the part of an employee in fulfilling the objects and if there was any hurdle :: He made a remark in agreement with the note against the column.

(2) He again made following remarks against column quality of

work done :: Excellent.

(3) Knowledge of work area:: Excellent. B- Characteristics (1) Aptitude towards work :: Excellent. (2) Ability in taking decisions :: Excellent.

(3) Initiative: Very good.

(4) Ability of incentive and motivation: Excellent.

(5) Communication Skill (Written and Oral) : Excellent.

(6) Personal relations and team work: He is a very good team

player.

(7) Relations with general public: Had very cordial relationship with all and was sensitive to all.

(8) View towards Scheduled Castes and Scheduled Tribes and Weaker Sections of the Society: Excellent.

C-Additional Characteristics

(1) Ability to make plan: Excellent.

(2) Ability of Supervision:

(1) Division of work:

(2) Selection of appropriate personnel in order to work: (3) Ability of guidance to work:

(4) Assessment of work:

General:

Integrity: Beyond doubt.

The Officer further made following observations on 30.04.2014: "had done excellent work in reaching out individual beneficiary Schemes to all Citizen." and awarded grading "Excellent" [A+].

Then, it was forwarded to Development Commissioner Madhya Pradesh Ms. Aruna Sharma. On 31.05.2014, she also awarded grading "outstanding A+ to the appellant with the observations "Did excellent work in SSSM Grade-II MNREGA of the housing [19] MDM [8] overall rating is ''outstanding''. Thereafter, the file was sent to the concerned Minister Panchayat and Rural Development, Social Justice and Disabled Welfare, co-operative Department. He has made observations which are in Hindi. We have quoted the observations in Hindi in earlier para 4 of the judgment because the remark which is made could be understood in proper perspective. English translation of the remark is as under:-

"As per instructions of the Government, there was lacking of proper supervision in the District at ground level. There was deficiency of quality in the constructions made by Panchayat Raj Institutions and Rural Engineering services inspite of that no effective steps were taken to stop siphoning of funds. Execution of Indira Aawas Yojana, overall cleanliness campaign, implementation of IWMP was not satisfactory. Overall grading is "Good" and the accepting Authority awarded grading "Good". There is no date mentioned by the authority below his signature.

PS to the Minister forwarded the aforesaid grading to the Department vide letter dated 31.12.2014 filed by the petitioner along with the rejoinder. The appellant specifically pleaded in the petition before the writ Court that cut off date for writing ACR was 30.09.2014 and Accepting authority had written the ACR after the aforesaid date.

In the return, the respondents did not make any specific pleading that when the Accepting Authority i.e. Minister had written the ACR entry. The respondents made following pleading in this regard in the return the same reads as under:-

"4................... where the approving authority has down graded the entry of petitioner by assigning strong and cogent reasons, no date has been mentioned. However, it can safely be safely be presumed that it is before the cut of date as prescribed in the circular since the petitioner has made allegations only on the basis of conjuncture and surmises that the entry by the approving after the cut of date i.e. 30/9/2014. Thus, in view of the same the contention of the petitioner that said entries are contrary to the circular dtd 23/7/2014 and are time barred is entirely misconceived and beyond the records.

The pleading of the respondents in the return is that it be presumed that Accepting Authority had written the entry before cut off date as prescribed by the Circular.

Now the question is that when the ACR entry was written by the Accepting Authority before the date as prescribed by the Circular i.e. 30.09.2014, then why the special assistant forwarded the same to the Department vide letter dated 31.12.2014 after a period of three months and why the authority had not mentioned the date below his signature at the time of writing the entry. There is no answer to this. Apart from this, the entry was not communicated to the appellant as per mandate of the Hon''ble apex Court in Dev Dutt vs. Union of India and others 2008 (8) SCC 725. When the appellant filed an application under Right to Information Act, then he received information about the entry and all other material/documents of his

ACR for the year ending 31st March 2014. The appellant made a representation against the entry on 14.07.2015 and 27.07.2015 with a prayer that his name be sent for considering his case for award of I.A.S. Those representations have also not been decided.

We have directed the learned Govt. Advocate to produce the record in regard to ACR entry of the appellant. Record has been produced. There is no material available in the record except the observations made by the Minister that on what basis he has awarded the ACR grading and on what basis he has made observations contrary to the observations and grading awarded by the Collector; Reporting Officer and the Development Commissioner; forwarding Officer. Collector was the immediate Officer of the appellant and he was supervising his work, in that capacity he had all the informations with him. There is no material that whether the Minister had called any explanation or information from the authorities in order to satisfy himself for the remarks made by him and the grading awarded by him. There is no record that the Minister made visits of district where the appellant was posted and he had gathered information personally or from the record and made the remarks. Due to the remarks made by the accepting Authority the Minister, the future prospects of the appellant have adversely been affected. His name could not be sent to award I.A.S. Fair play and natural justice requires that the accepting Authority either mention in remarks the source of information on the basis he made the remarks or the material may be kept in the file.

It is well settled principle of law that the Court cannot interfere with an administrative order, however, the Court can interfere in the process of making an administrative decision.

In the present case, appellant has been awarded lower grading by the Accepting Officer i.e. "Good" [B] overlooking the grading awarded by two Officers i.e. Reporting Officer and Reviewing Officer/Forwarding Officer A+. Due to aforesaid grading, the career of the appellant has adversely been affected because his name was not sent for award of I.A.S. As pleaded by the appellant for Award of IAS his ACR grading must be A+.

The apex Court in Rajendra Singh Verma and others vs. Lieutenant Governor (NCT of Delhi) and others (2011) 10 SCC 1 has specifically observed that it is the duty of the Officer to write CR objectively, fairly and dispassionately. This is also the requirement of rule of natural justice. Hence, in our opinion, the act of downgrading the ACR by the Accepting Authority is contrary to law and it is liable to be quashed.

Now the question is that whether the case be sent back to the Accepting Authority for reconsideration or not. The appellant has not been communicated the entry and further his representations were also not considered. Looking to the attitude of the Accepting Authority and the manner in which he had awarded grading to the appellant and written the ACR of the appellant, in our opinion, no useful purpose would be served to sent back the case to the

Accepting Officer for review or for consideration of the representation of the appellant afresh.

In view of the peculiar facts and circumstances of the case, in our opinion, it would be just and proper if the grading awarded to the appellant by Reporting Officer and Forwarding Officer be accepted ignoring the observations and grading awarded by the Accepting Officer i.e. Minister. Hence, the grading of the appellant for the year ending 31st March 2014 be treated as Excellent [A+].

Consequently, the appeal filed by the appellant is allowed. The order dated 19.08.2016 passed by the writ Court in writ petition No.20016/2015, is hereby set aside to the extent that the grading A+ awarded to the appellant for the year ending 31 st March, 2014 by the Reporting Officer and Forwarding Officer be treated as final. No order as to the costs.