Vivek Srivastava vs Union Of India & Ors

Navin Chawla, J

The petitioner has filed the present petition before us seeking the following reliefs:-

“(i) Issue a Writ of Certiorari for quashing the order dated 01.05.2014 issued by the DG, CRPF, declining to interfere with the averse remarks in

the petitioner’s APAR for the year 2007-08, the signal dated 05.01.2015, the letter dated 21.03.2016 issued by the DG, CRPF declining to

consider the case of the petitioner as well as the signal dated 29.03.2016 rejecting the petitioner’s representation dated 15.10.2015; and

(ii) Issue a Writ of Mandamus directing the respondents to expunge the adverse remarks in the APAR for the year 2007-08, and, to consequentially

convene a review DPC qua the DPC held on 18.10.2013 to assess the suitability of the petitioner for promotion to the rank of CMO (OG); and

(iii) That if the petitioner is so found fit in the review DPC, then to issue a Writ of Mandamus directing the respondents to grant the petitioner all

consequential benefits of promotion to the rank of CMO (OG).â€​

The petitioner joined the Central Reserve Police Force on 1st July, 2003 in the rank of Assistant Commandant (GDMO). He was posted at

Balaghat, Madhya Pradesh in April, 2004. In May, 2005, respondent no.5, C.T.Venkatesh took over the charge of the Battalion as Commandant. It is

the case of the petitioner that from the very beginning itself, there was discord between him and the 5th respondent.

The petitioner claims that for reasons attributable to respondent no. 5, even his confirmation, after completion of probation period, was delayed. The

petitioner draws our attention to a written complaint filed by him against the 5th respondent on 22nd October, 2007 on which an enquiry was ordered

by the IGP Central Sector in the month of February, 2008 and resulted in an order dated 18th June, 2009 passed by the Director General, CRPF

expressing his ‘displeasure’ to both the 5th respondent and the petitioner.

As for the Annual Confidential Report (ACR) for the period 1st April, 2007 to 31st March, 2008, which is the subject matter of the present petition,

we called for the original record from the respondent no.2, CRPF. We have perused the original record and find that the 5th respondent, as the

Reporting Officer, had commented adversely against the petitioner in his report dated 10th June, 2008. However, the Technical Reporting Officer in

his report dated 9th September, 2008 had graded the petitioner as ‘a good medical officer’. R.P. Singh, Deputy Inspector General of Police,

CRPF, Allahabad as the Administrative Reviewing Officer had graded the petitioner as ‘ ’, i.e., ‘average’. The Technical Reviewing

Officer did not grade the petitioner for the said period on the ground that the petitioner had not served under him for a minimum period of 3 months.

The Inspector General as Superior Reviewing Officer also did not grade the petitioner in his note dated 18th January, 2010 for the same reason.

Therefore, what we have before us is the grading of 5th respondent given on 10th June, 2008 reporting adversely against the petitioner, grading of

good by the Technical Reporting Officer and grading ‘average’ by the Administrative Reviewing Officer.

The petitioner was among 67 Medical Officers found eligible for promotion to the next rank of CMO (OG) subject to them being found fit by the

Departmental Promotion Committee (DPC). It was at this stage that the ACR for the period 1st April, 2007 to 31st March, 2008 was communicated

to the petitioner vide Director letter dated 6th August, 2013, which the petitioner claims was received by him only on 18th October, 2013, whereas the

DPC was convened on the next day.

The petitioner submitted his representation on 23rd November, 2013 primarily raising the ground of bias against respondent no.5 and also delay in

communication of the adverse report. The same was, however, rejected by the Director General, CRPF vide his order dated 1st May, 2014. The

petitioner’s further representation was also rejected and the same was communicated to the petitioner vide impugned signal dated 5th January,

2015. The petitioner, still feeling aggrieved, submitted further representations, however, vide impugned communication dated 21st March, 2016, he was

informed that there was no provision for considering second appeal/representation against the adverse remarks/below bench mark grading in the

ACR/APAR and, therefore, he should desist from making repeated representations on the same issue. The petitioner has impugned before us the

order dated 1st May, 2014, signal dated 5th January, 2015 and the communication dated 21st March, 2016 rejecting his representations against the

ACR /APAR for the years 2007-08 and has further sought a mandamus directing the respondents to expunge the said adverse remarks and to

convene a review DPC to assess the suitability of the petitioner for promotion to the rank of CMO (OG).

The official respondents, i.e., the Ministry of Home Affairs and CRPF have filed a common reply to the petition whereas the 5th respondent,

C.T.Venkatesh has chosen not to appear or file any reply. The respondents have, of course, denied any bias of C.T.Venkatesh while writing the ACR

of the petitioner and as far as delay in communication of the ACRs, they have submitted that the same were duly communicated to the petitioner in

due compliance with DOPT OM no.21011/1/2010-Estt. Dated 13th April, 2010.

We have heard the learned counsel for the parties. At the outset, we appreciate limitation of our powers while examining the ACRs of an officer. It

cannot be disputed that normally the Court are loath to interfere in cases of complaints against adverse remarks and to substitute their own judgment

for that of the Reporting or Reviewing Officer. It is because senior officers alone are best suited to judge the qualities of officers working under them

and about their competence in the performance of official duties entrusted to them. Despite allegation of possible abuse of power by a prejudiced

superior officer in some cases, the service record contained in the confidential reports, by and large, reflects the work and performance of the officer,

with relevant period. There is a system of checks and balances, as opinions and comments are recorded by hierarchy of officers.

At the same time, it is also well settled that ACRs play a vital and significant role in the assessment, evaluation and formulation of opinion on the

yearly profile of an officer and, therefore, have to be reported objectively and fairly with due diligence and caution. They can have a significant impact

on career progression and promotion prospects of an officer.

Making annual entries in the confidential records of subordinate officials by superiors has a public policy and is a purposive requirement. It is one

of the recognized and time tested method of exercising administrative and disciplinary control by a superior authority over the subordinates. Such

entries may potentially shape the future career of a subordinate officer and therefore, casts an obligation on the authority to follow principles of

fairness, neutrality and objectivity while recording any adverse or below bench mark grading in the ACR of an officer.

Natural justice being part of Article 14 of the Constitution of India, needs to be complied with when adverse or below the bench mark gradings are

recorded. It is for this reason that the Supreme Court in case of Dev Dutt vs. Union of India & Ors. 2008 8 SCC 725 held that the principles of

natural justice require that all entries (whether poor, fair, average, good or very good) in annual confidential report of a public servant whether in civil,

judicial, police or any other State Service (except military), must be communicated to the officer within a reasonable period so that he can make a

representation for its upgradation.

One of the important principles of natural justice is a rule against bias. It is difficult to prove the state of mind of a person, and therefore, the

element of bias or mala fides is to be gathered by the Court from the attending relevant facts and circumstances of a given case. The existence of

elements of bias is to be inferred as per the standard and comprehension of a reasonable man. It was held by the Supreme Court in the case of

A.K.Kraipak & Ors. vs. Union of India & Ors. (1969) 2 SCC 262 that a mere suspension of bias is not sufficient, there must be a reasonable

likelihood of bias. In deciding the question of bias, court must take into consideration human probabilities and ordinary course of human conduct.

This High Court in the case of Major Prithviraj Patnaik vs. Union of India & Ors. ILR (2007) 1 Del 572 has held that an administrative action

suffering from real likelihood of bias cannot be sustained. Similarly in the judgment dated 8th October, 2015 in the case of S.K.Sharma vs. Union of

India & Ors. 2015 SCC online Del 13399, this High Court applied the above principle while quashing the ACR written by an officer against whom the

subordinate’s wife had made a complaint. We reproduce hereinbelow the relevant portion of the said judgment:-

“13) In the present case, no doubt the fifth respondent was entitled to and did initiate the process of recording the petitioner’s ACR, being his

superior officer. The initiation of the process which is administrative-however, did not mean that the fifth respondent was compelled to go ahead and

complete recording the ACR. The complaints of harassment were levelled against him almost contemporaneously. No one suggests that the fifth

respondent was duty bound or compelled to write the ACR after he became aware that there was likelihood of his bias in the process of its recording.

When the Court considers that the complaints to the NHRC and NCW were preferred within a couple of months of October, 2007, the fact that the

fifth respondent had become aware of these developments is undeniable.

14) As in all cases where bias is alleged, the issue which the court has to address itself is as to whether there was likelihood of bias. The party alleging

bias is not under an onus to prove bias; rather it is the danger or likelihood of bias of the public official concerned, in the circumstances of a given

case. In one of the most celebrate cases, R v Bow Street Metropolitan Stipendiary Magistrate & Ors. Ex parte Pincochet Ugarte (No 2) (1999) 2

WLR 272 [‘the Pinochet case’] discussed those tests. There, the House of Lords set aside its earlier decision when it was disclosed (after

delivery of judgment), in the earlier appeal, that Lord Hoffmann, (one of the members of the Appellate Committee who heard the appeal), had some

link with Amnesty International. That body was an intervener in the appeal; the judge was an unpaid director of the Amnesty International Charity

Ltd. (‘AICL’), a charity wholly controlled by Amnesty International. The House of Lords held that the relationship between Lord Hoffmann

and Amnesty International through his directorship in AICL, led to his automatic disqualification from sitting on the hearing of the said appeal without

the need to investigate whether there was a likelihood or suspicion of bias in the circumstances of that case. The Supreme Court in Badrinath (supra)

and D.C.Agarwal and the other cases previously cited vividly summarized the applicable test in these cases-it is not one of proven bias; rather it is

proof of reasonable likelihood of bias.

15) Applying the test of reasonable likelihood of bias, this court has no hesitation to say that given the nature of the allegations levelled against him, the

fifth respondent, as a responsible officer should have desisted from completing the process of recording the ACR â€" which was actually recorded in

late 2008. He could have sought guidance from his superior officers having become aware of the complaint by the petitioner’s wife, against him.

That his evaluation was confirmed by the higher authorities (who concurred with his views in this case) is cold comfort to the petitioner. In our opinion,

if the initial action itself was tainted because of bias, the resultant illegality was incurable.â€​

In the present case, though we are not persuaded by other general allegations of bias raised by the petitioner like delaying his confirmation etc., as

noted above, the petitioner had made a complaint against the 5th respondent, C.T.Venkatesh, on 22nd October, 2007. C.T.Venkatesh in turn, had

made a complaint against the petitioner on 21st November, 2007. On these counter allegations, IGP, Central Sector, CRPF had ordered an enquiry in

the month of February, 2008.

As has been observed by us earlier, respondent no.5 had initiated the ACR of the petitioner for the period 1st April, 2007 to 31st March, 2008 on

10th June, 2008 i.e., after the aforesaid enquiry had been ordered against him. We may only notice that the said enquiry resulted in a final order dated

18th June, 2009 of conveying ‘displeasure’ on both the officers, passed by the Directorate General, CRPF. In these circumstances, we are of

the opinion that there was a reasonable likelihood of bias of C.T.Venkatesh against the petitioner.

The respondents have contended that R.P. Singh, Administrative Reviewing Officer of the petitioner had also rated him as ‘average’.

Vague allegations of bias against R.P. Singh have also been made by the petitioner, however, we find no substance in the same. However, a perusal

of the impugned ACR would show that the Technical Reporting Officer in part-III(D) of the report had given his general assessment of the petitioner

in the following “He is a good medical officerâ€. The Technical Reviewing Officer, who in our opinion was competent to assess the remarks of the

Technical Reporting Officer, did not grade the petitioner for the said period on the ground that the petitioner had not served under him for a minimum

period of three months. On the other hand, R.P. Singh, who was the Administrative Reviewing Officer, disagreed with the Technical Reporting

Officer with regard to his assessment rating of the petitioner under the head of “Professional Ethicsâ€. R.P. Singh, recorded his disagreement with

the same in the following:

English translation as supplied by the Petitioner, reads:

“Comments and grading mentioned by the Commandant 117 Bn. at ACR Part III(A) are agreed. In addition to this, Reporting Officer reported at

Part III (B) has been evaluated more than his abilities. It is not fully agreed. Performance of the officer during reporting period was an average.â€​

R.P. Singh, in relation to the para 4, Part IV(A) with regard to “General comments on the quality of professional performance and application

of knowledge. (Comment specifically on professional knowledge and skill, patient care and clinical acumen, medical administration and proper

utilization of technical equipments)â€​, reported as under:-

English translation as supplied by the Petitioner, reads:

“Medical Officer having average knowledge about his work. Looking after patients and their treatment was also on average condition.â€​

R.P. Singh thereafter graded the petitioner as average and in the general assessment reported the following:

“

â€​

English translation as supplied by the Petitioner, reads:

“Medical Officer having average knowledge about his work. Looking after patients and their treatment was also on average condition.â€​

A bare reading of the above remarks would show that though R.P. Singh was the “Administrative Reviewing Officerâ€, and not the

“Technical Reviewing Officerâ€, he not only disagreed with the report of the “Technical Reporting Officer†but has primarily made adverse

comment on the technical knowledge of the petitioner. It is not shown, that R.P. Singh was even competent to comment about the technical

knowledge of the petitioner in the medical field. Though it may not be very relevant, we cannot lose sight of the fact that the same C.T. Venkatesh

and R.P. Singh as Reporting and Administrative Reviewing Officer respectively had graded the petitioner as ‘good’ and ‘very good’ in

their ACRs for the period 1st April, 2006 to 31st March, 2007. The petitioner’s file reveals that for the assessment period 11th June, 2008 to 31st

March, 2009, the petitioner had been graded as ‘very good’ by the Superior Reviewing Officer on 13th November, 2009.

Another important factor in the present case is that the original file reveals that on the representation made by the petitioner, comments were again

sought from C.T.Venkatesh who again adversely commented upon the petitioner. This was after he had suffered ‘displeasure’ of the DG,

CRPF on a complaint filed by the petitioner. This would have certainly weighed with the respondents while rejecting his representation vide impugned

order dated 1st May, 2014.

The impugned order dated 01.05.2014 records that the petitioner, in his representation, has not disputed the remarks of “Administrative

Reviewing Officer†who agreed with the adverse remarks endorsed by the Reporting Officer. This observation of the Director General, CRPF is

incorrect on both counts. A perusal of the representation dated 23.11.2013 made by the petitioner would show that the petitioner had challenged the

grading of “Administrative Reviewing Officer†on the ground of the same being without any reason. Further, as noted above, “Administrative

Reviewing Officerâ€​ had not agreed with the remarks of the “Technical Reporting Officerâ€​ but had in fact downgraded the same.

As far as challenge on the ground of delay in communication of adverse/below benchmark ACR is concerned, we may only state that though

there certainly was a delay in communication of the ACR to the petitioner, the petitioner would not have been entitled to any relief on this ground

alone. However, we are not delving deeper into this issue as the petitioner is to succeed on our findings given above.

In view of our above findings, we hold that the impugned ACR recorded by the 5th respondent as well as the confirmation by the

“Administrative Reviewing Officer†cannot be sustained and are hereby quashed. We direct the respondents to consider the case of the petitioner

for promotion to the next rank of CMO(OG) un-influenced by the ACRs for the period 1st April, 2007 to 31st March, 2008 by holding a review DPC.

We may however clarify that we have not made any comment on the order dated 18.06.2009 conveying “displeasure†of Director General,

CRPF to the petitioner. The said order remains on record and effect thereof, we would not comment. We further clarify that the Review DPC, as

ordered by us, would consider the case of the petitioner uninfluenced by any observation made by us above and would be free to make its own

assessment regarding the petitioner, keeping in view the entire relevant material.

The writ petition is allowed in the above terms with no order as to costs.