Sanjay Kumar Chhetri vs Union Of India And Ors

Heard Mr. A.L. Saha, learned counsel appearing for the petitioner as well as Mr. Biswanath Majumder, learned CGC appearing for the respondents-Union of India.

By means of filing the present writ petition, the petitioner has challenged the assessment and grading relating to his APAR for the year 2013-2014.

Brief facts, are as under:-

The petitioner is serving under the respondents as a Hindi Translator since January, 1998. Till the year 2012-2013, i.e. for more than fourteen years, there was no adverse remarks in his Annual Performance Assessment Report(for short, "APAR"). The petitioner received a copy of APAR for the year 2013-2014 with the comments "Below Average", which was communicated to him vide communication dated 24.06.2014(Annexure-1 to the writ petition). After careful scrutiny of the copy of the APAR, it was observed that first three lines and last two lines of column No.24 of the APAR are written in different ink and also by different hand-writing than that of the first three lines of the remarks, given by the Initiating Officer (I.O. for short).

It is contended in the writ petition that Mr. Manik Alhat, SAO was the Reviewing Officer("R.O.", for short) against whom the petitioner on an earlier occasion had submitted a written complaint dated 10.03.2014(Annexure-2 to the writ petition) for gross harassment towards the petitioner.

After receipt of the copy of the APAR, the petitioner had submitted a representation on 07.07.2014(Annexure-3 to the writ petition) indicating the fact of unusual addition and cutting i.e. striking out of the original/initial remarks from the body of the APAR with a request to upgrade his APAR after review.

The representation dated 07.07.2014 submitted by the petitioner was returned to him with advice for submitting representation against the adverse remarks to the authority, immediate superior to the countersigning authority vide communication dated 23.07.2014 by the Commandant, GREF Centre.

Thereafter, the petitioner submitted representation dated 06.08.2014(Annexure-4 to the writ petition) to the DDG(Pers.), HQ DGBR against the adverse remarks made in APAR of the petitioner for the year 2013-2014. But, that representation was not considered by the DDG(Pers.), HQ DGBR.

Mr. Saha, learned counsel appearing for the petitioner has drawn my attention to various columns of the APAR, wherein, the initial grading marks allotted to the petitioner were struck off by way of cutting and over-writing the original marks.

A. At page 5 of column No.16 of the APAR, the Reporting Authority had initially awarded under "Assessment of work output" in respect of the petitioner as under:

"i) Accomplishment of planned work/work allotted as per subject allotted.....................6

ii) Quality of output.......................................7

iii) Analytical ability......................................8

iv) Accomplishment of exceptional work/ unforeseen tasks performed....................9 Overall Grading on „Work Output‟.........3.0"

It appears that subsequently the said assessments were struck off and different marks were awarded, such as 3, 4, 4, 4 and only 1.5 in respect of "Overall Grading on Work Output‟.

B. At the same time, at page 5 of column No.17 of the APAR, the Reporting Authority had awarded the following points on "Assessment of personal attributes":-

"i) Attitude of work............................................5

ii) Sense of responsibility ..............................5

iii) Maintenance of Discipline...........................5

iv) Communication skill.................................5

v) Leadership qualities................................6

vi) Capacity to work in team spirit.........5

vii) Capacity to work in time limit..........6

vii) Inter-personal relation...........................5 Overall Grading on „Personal attributes‟..1.6"

Here also, it appears that subsequently all the allocation of points/marks were struck off and points were given afresh with lower grading, i.e. 4 and only 1.2 grading had been given in respect of "Overall Grading on Personal attributes‟.

C. Similarly, at page 6 of column No.18, the Reporting Authority had initially given the following grading:-

"i) Knowledge of Rules/Regulations/ Procedures in the area of function and ability to apply them correctly ...............8

i) Strategic planning ability.............................8

iii) Decision making ability..............................8

iv) Coordination ability...................................8

v) Ability to motivate and develop subordinates...8 Overall Grading on „Functional Competency‟....2.4"

Here also, the initial grading has been struck off including the "Overall grading on functional competency" from 2.4 to 1.2 and it appears that the Reviewing Authority has awarded the same points as given by the Reporting Authority under "overall grading on functional competency".

D. Again, at page 6 of column No.21, the Reporting Officer had initially awarded under the head-"Proficiency in Hindi" as "Very Good", but, surprisingly the word "VERY" was struck off subsequently.

E. In the APAR at page 7 of column No.22, under the head-"Recommendation of training", the initial comment was "NA‟, but, the word "NA‟ was struck off and subsequently in its place, the word „Yes‟ was written.

F. Similarly, in the APAR at page 7 of column No.24, the remarks in the first three lines were as follows:

"An experienced Hindi Translator, who knows his job well. He tried to handle the section assigned to him. He has potential to improve his knowledge."

The above comments were closed with "full-stop". On scrutiny, it appears that, out of context, the following words have been inserted in the APAR subsequently by different pen or ink:-

"& also he does it with several mistakes/wrong vehemently."

It also appears that the initial comment at the last line in column No.24 was "His overall grading is Good", but subsequently, the word "Good" was struck off and two new words, i.e. "Below average" have been inserted.

G. In column No.25 of the APAR against the query "Have you endorsed any adverse remarks? Say „Yes‟ or „No‟, the initial comment was "No". Naturally, the subsequent comment against column No.25 would be „Nil‟, as was initially written by the Reporting Officer, but the word "Nil" was also struck off subsequently and some comments have been inserted by different hand-writing.

H. The comments made by the Reviewing Officer in column No.28 of the APAR are also out of context as because no adverse comment for his work performance was given by the Reviewing Officer under whom the petitioner was serving.

I. In column No.29 of the APAR, against the query "Have you improved/reduced the overall assessment made by IO, if so, give Justification, if the overall grading differs by more than one", the Reviewing Officer commented-"No".

J. In para-3 of the order No.12622/ACR/DGBR/ 70/EG2 dated 08 APR 2015, it has been wrongly stated that "the initiating Officer while indicating that the individual did not submit his resume in Part II of APAR despite numerous written reminders awarded overall numerical grading in the subject APAR as 3.9 which is below bench mark grading.."

This is a wrong statement which will be evident from his resume dated 01 April, 2014.

On the aforesaid facts, the learned counsel for the petitioner has submitted that the comments and views of the Initiating Officer which are vital for the APAR, the Reviewing Authority cannot alter or improve/reduce the overall assessment made by the Initiating Officer in various columns by striking out the initial comments/assessment. As such, all on a sudden, the grading of the petitioner as "Below Average" is illegal and arbitrary and is liable to be set aside.

Learned counsel for the petitioner has further contended that the petitioner had earlier served at HQ 38 BRTF, Manali during the period from 1st April 2013 to 9th August, 2013. The petitioner was given Interim Performance Assessment Report(IPAR) by the higher authority at Manali with „Overall Grading‟ of 7.5, which means his „Overall Grading‟ was "Very Good" and it was not taken into consideration in the impugned APAR. Learned counsel has further submitted that in the impugned APAR, it has also been wrongly recorded that this APAR is for the period from 1st April, 2013 to 31st March, 2014 ignoring the IPAR.

Learned counsel for the petitioner has drawn my attention to the grading of the petitioner during the period from 2009-2010 till 9th August, 2013, wherein the „Overall Grading‟ was given as follows:

Sl. No.

Year

Grading

Remarks

a)

2009-2010

7.1

VERY GOOD

b)

2010-2011

7.1

VERY GOOD

c)

2011-2012

7.3

VERY GOOD

d)

2012-2013

6.5

VERY GOOD

e)

01 April, 2013 to 9th August, 2013

7.5

VERY GOOD

Learned counsel for the petitioner has further submitted that the petitioner had served the same office of GREF Centre for the period 2014-2015 and the grading he earned was "7.1", which means "Very Good". Learned counsel has also submitted that the Reviewing Authority has incorrectly stated the period as 1st April, 2013 to 31st March, 2014. But, the truth is that the petitioner was serving at HQ 38 BRTF(Manali) for the period from 1st April, 2013 to 9th August, 2013 and later he served at GREF Centre from 23rd September, 2014 to 31st March, 2014, which is also reflected at page 2, column No.9 of the APAR(Annexure-5 to the writ petition).

Learned counsel for the petitioner has strenuously argued that in view of the aforesaid facts, the grading of the petitioner in his APAR for the period 2013-2014 is to be set aside, otherwise, it will be prejudicially affecting the financial up-gradation i.e. MACP-2 as well as promotion of the petitioner, which will come into effect in view of the forthcoming promotion.

Mr. Saha, learned counsel for the petitioner has further submitted that the representation of the petitioner which was again submitted by him on 29th March, 2016 requesting the Director General, Border Roads Organization requesting to expunge the subsequent comment/assessment made in his APAR was disposed of stating, inter alia, that there is no rule for reconsideration of up-gradation of below-bench mark grading given in the APARs by the competent authority, which was communicated to the petitioner vide order dated 12.05.2016(Annexure-7 to the writ petition).

This Court vide order dated 05.03.2020 directed the learned CGC to produce the original records relating to the APAR of the petitioner. On his consent, the matter was listed on 12.03.2020. But, on that day learned CGC has sought for an adjournment which was allowed and accordingly the case is listed today. In course of hearing, the learned CGC has produced some Xeroxed copies which are also found to be enclosed with the writ petition as well as in the counter affidavit. Learned CGC has submitted that these are the records available with him and the department did not supply any other records.

Based on the aforesaid submissions of the learned counsel for the parties, it would be apposite to reproduce the relevant pages of the APAR 2013-2014(1st April, 2013 to 31st March, 2014) being electronically scanned by this Court here-in-after for ready reference and for convenience:

In the counter affidavit, the respondents have stated that "During the process of initiation of the APAR, IO inadvertently has made some cuttings/overwritings therein, but when the IO has noticed the same, he rectified it and authenticated by putting his initials on each places wherever such cuttings/overwritings had took(sic) place as per procedure in vogue." Learned CGC has submitted that the cutting/over-writing was made due to casual and careless approach of the Initiating/Reporting Officer for which the officer was subsequently warned and counseled suitably.

Assessment by way of writing and grading of an employee are absolutely within the domain of the officers concerned with whom the said officer works. The Court has no authority to exercise its power of judicial review over such assessment or performance of an officer by his/her authorities. But, in my opinion, if it is found that there is total irreconcilable inconsistencies and irregularities which are manifestly surfaced in the APAR/ACR concerning to the petitioner and if the actions of the higher officials, i.e. Reporting Authority or the Reviewing Authority, are found to be unreasonable, inconsistent, unfair and dispassionate, then, the Court should definitely interfere, if any plea of malice/mala fide or perversity has been attributed against the respective officers viz. the Reporting Officer or Reviewing Officer or the Appellate Authority.

At this juncture, I deem it appropriate to recall the decision of the Apex Court in S. Ramchandra Raju v. State of Orissa, 1994(3) SCC 424, 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.

I also aptly point out the decision of the Apex Court in State of U.P. v. Yamuna Shankar Misra, (1997) 4 SCC 7 wherein it is 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."

Again in Brij Mohan Singh Chopra v. State of Punjab, AIR 1987 SC 948, the Apex Court held that in considering action upon adverse remarks, the concerned authority should act fairly and apply his mind, however, the general plea is that although the entire service record of an employee is to be considered, the service records of immediately preceding 10 years should provide just and reasonable guidelines.

In the instant case, the petitioner has made specific allegation against the Reviewing Authority vide letter dated 10.03.2014(Annexure-2 to the writ petition) for harassing and humiliating the petitioner.

I have also perused the representation submitted by the petitioner dated 06.08.2014 wherein the petitioner has stated that in all his previous APARs he was graded as "Very Good" and there is not a single APAR wherein has been graded as "Average" during the last sixteen years. The respondents could not furnish any such records before this Court to controvert this statement.

Further, I have given my bird's eye view to the APAR grading of the petitioner. At first glance, it manifests that there are series of cutting marks and over-writings. The initial grading marks were struck off and lesser marks were awarded. In furtherance thereof, in view of the aforesaid factual aspects, about the manipulations as are surfaced in the APAR itself and having regard to the attitude of the Reviewing Authority towards the petitioner, according to me, the corrections by way of striking out the marks allotted in favour of the petitioner by the Reporting Officer are actuated with malice.

At column No.19, it is found that the „integrity‟ of the officer was graded by the Reporting Authority as "Beyond doubt". The Reviewing Authority also graded his „integrity‟ as "Beyond doubt".

Column No.20 deals with "Attitude towards SC/ST/OBC", against which the Reporting Authority has graded the officer as "Fair and just". The Reviewing Authority also graded the officer as "Fair and just".

Column No.21 deals with „Proficiency in Hindi(V Good/Average/Below Average). It is seen that initially the petitioner was graded by the Reporting Authority as "Very Good", but it is found, later on, the word "Very" has been struck off by way of cutting the said word. The Reviewing Authority, however, graded the petitioner as "Good" against column No.21.

In column No.22 against the subject-"Recommendation for training", initially the Reporting Officer reported as "NA" which means "Not Applicable", but, later on, it was struck off and written as "Yes".

At column No.24, initially, it was written as "An experienced Hindi Translator who knows his job well. He tried to handled the section assigned to him. He has potential to improve his knowledge." Thereafter, I find quite irreconcilable inconsistencies, where it was written, "& also he does it with several mistakes/wrong vehemently." It becomes very transparent that this remark was written by using different pen. After the said remark, I find the remark, "His over all grading is „good". But the word "good" was struck off by way of cutting the same and thereafter "Below Average" was written. The said remark, i.e. „His over all grading is good" is found to be written by a similar pen and by a similar person. But, when the word, "good" was struck off by way of cutting, after that it was written as "Below Average" and these two words i.e. "Below" and "Average" are found to be written by different ink and by a different person, who had written the comments/remarks, "& also he does it with several mistakes/wrong vehemently."

In my conscious consideration, it is a gross manipulation committed by the respondents with a clear ulterior motive.

Column No.25 deals with "Have you endorsed any adverse remarks? Say „Yes‟ or „No‟. If yes, give details of counseling." Then, there are two columns i.e. „ka‟ written in „Hindi‟ which deals with "Verbal(with dates)". The second one is „kha‟ written in Hindi, which deals with "Written(letter No. and date)". It is evident, initially it was marked as "NIL", but then, it was cut off and some reference of correspondence made in the month of March and May were written and against column „kha‟, it was written as "Verbally counsel several time, very oftenly during entire period".

The writer of the above remarks and the writer of the remarks, "& also he does it with several mistakes/wrong vehemently." were found to be same and similar.

I find total inconsistencies again in the remark- "No" against the same column, where it was prescribed, "Have you endorsed any adverse remarks? Say „Yes‟ or „No‟.

So, when there was no adverse remark, then, how in column 25(„ka‟) it is written as "Verbally counsel several time, ......................" as afore-stated.

Then, in the last page, the date also was cut off. It was originally written as "May 2014" and, later on, it was written as "20 Jun 2014".

In regard to column No.24 at page 7 of the APAR, the remarks started with the sentence "An experienced Hindi Translator, who knows his job well. He tried to handle the section assigned to him. He has potential to improve his knowledge". The said sentence reflecting the remarks of the concerned officer were ended with "full-stop". But, surprisingly and quite out of context, the later part was added as "& also he does it with several mistakes/wrong vehemently".

I find that the respondents did not consider those aspects while disposing of the representation of the petitioner. The representation of the petitioner has been disposed of quite mechanically without application of prudent mind. I find sufficient irreconcilable inconsistencies in the write-ups, which obviously shock the judicial conscience of this Court. That was why this Court expressed its desire to verify and examine the original records, and for this purpose directed the learned CGC to produce the original records relating to the APAR of the petitioner, but the learned CGC did not produce the original records and the materials on the basis of which the decision of awarding marks or the initial remarks made by the concerned officers came to their conclusion of grading the officer as "Below Average". Curious enough, when the Reporting Authority remarked the officer as "Very Good", initially though the word, "Very" was cut off, then, I am at a loss to understand how in column No.24, pen pictured by the Reviewing Officer, the overall grading is written as "Below Average" after cutting the original grade "Good" in separate ink and that too quite inconsistently with the earlier remarks made in column Nos.19, 20, 21 and 24. The role of the accepting officer is also not beyond criticism considering the degree of his responsibility and expected fairness holding the top position in the matter. This is totally arbitrary and one of the glaring instances of irrational exercise of the discretionary power, the officers are invested under the administrative jurisprudence and this is where, in my opinion, the Court‟s interference is called for in exercise of its power of judicial review. Furthermore, this kind of manipulations in the APAR should not be allowed to be permitted because it would deter confidence and competency of an employee in an organization. It would also diminish the work culture of the organization, the preservation of which is the solemn duty of the employer.

For the reasons stated above, I direct the concerned respondents including the competent authority to reconsider the APAR of the petitioner in the light of the above discussions wherein I have already observed that there are irreconcilable inconsistencies and irrationalities in the assessment made by the authorities concerned, in the garb of corrections of the APAR of the petitioner; and restore the original write-ups/assessments and grading of the petitioner for the year 2013-2014. The respondents shall also keep in mind the past 4(four) years‟ APARs of the petitioner including the IPAR for the period with effect from 1st April, 2013 to 9th August, 2013, where he was graded as "Very Good", particularly, for the reason that the entire episode as surfaced in the prescribed APAR form, the past gradings carry enough relevance and credence to determine the grading of the petitioner for the year 2013-2014.

Before I conclude, I re-iterate that the degree of gross illegalities, malafides, unexpected and unnatural manipulations apparent on the face of the APAR is sufficient to hold the present case falls within the exceptional and rare category and hits the conscience of the court calling for interference with the decision making process. However, refraining myself so to do, I relegate the entire issue to the respondent-authorities with high hopes and trusts.

With the aforesaid observation and directions, the writ petition stands disposed in the above terms.

However, there shall be no order as to costs.