B. Baburao Vs. the Chairman and Managing Director, Bharat Sanchar Nigam Limited and Others - Court Judgment

(ORAL)

 DR. KB. SURESH. MEMBER (J)

1. Heard. The matter relates to the Bench mark which is a qualitative assessment of the officers and an answer to the query , learned counsel for the respondents places G.I. Dept., of Pers. and Trg. OM.No.22011/3/2007-Estt (D) dated 18.2.2008 which mentions an Office Memorandum.No.35034/7/1997 which contains instructions on Bench mark as also an OM dated 10.4.1989 which was subsequently amended in 1997 while the instructions in 2008 stipulated the Bench mark of 'Very Good' for promotions earlier situation was apparently different and therefore when the applicant cries out that on the basis of uncommunicated ACRs he was not granted his rightful promotions, the respondents reply in that at the time of such reports were written the grading standards were not considered as inadequate for promotions. The applicant relies on the decision of the Hon'ble Apex Court in the case of Dev Dutt vs. Union of India and ors., reported in 2008 SCC 725 wherein the Lordships have held that all gradings whether 'Very Good', 'Good', 'Average' or 'Poor' are required to be communicated to the employee so that prejudice which arises therein must be amenable to correction by granting an opportunity for the employee concerned who raised the issue with the superior officers. But the learned counsel for the respondents would submit that by decision in Union of India vs. AK. Goel and others it is felt by the Hon'ble Apex Court in SLP (Civil) No.15770/2009 that there appears to be some conflict in some decisions of Apex Court which may not be completely in terms with Dev Dutt decision as aforesaid. Learned counsel for the respondents produced before me the decision of the Hon'ble Apex Court in Satya Narain Shukla vs. Union of India and ors., reported in 2006 (9) SCC 69. I had gone carefully through the issue involved in this case and found that the matter relates to appointment of a senior officer which he claims as his right. Of course empanelment on the basis that he had consistent excellent track record. By way of orbital must some have held that procedure for communication of ACR cannot be questioned as it is the function of the Court and the Court cannot interfere in such matters since on facts malafides are not made out. But, after this latter decision in Dev Dutt's case Supreme Court held that in view of the larger public interest involved in and the question of providing justice to employees who may be suffering because of the superiors that it is better that such factors are communicated to them. The learned counsel for the respondents also relies on a decision of Hon'ble Apex Court issued in KM.Mishra vs. Central Bank of India and ors., reported in 2008 (9) SCC 120 . Here the issue seems to be that the failure of the Reviewing Authority to concerned and the effect thereof and also deterioration of grading compared to the previous year and the applicant therein who had received 'Excellent' when he became 'Good' ought to have been communicated to him and the cascading effects of such communication and non-communication were considered by the Court but Dev Dutt judgment have canvassed seems much larger horizon and found for the reason such communication in Mishra's case we have seen that there is failure on the part of the concerned employee which resulted in factors remaining absent in the consideration to be made before the ACRs were written. Therefore, both these cases may not have any significant contribution to make resolution of the present case.

2. Since the matter is related to ACR, with the help of the learned counsel we have gone through instructions of the Government on how ACR should be written. It is to be prepared scrupulously and carefully after following the procedure prescribed and it should be an objective assessment of the work quality and the recording officer must realise the importance of entries made by him and write the report with greater possible care and the slightest part of negligence may lead to grave injustice to the officer reported upon by marring his future. In case, the Reviewing Officer finds that cryptic ways of non committal remarks are there it is to be returned to the Reporting Officer for reconsideration, amplification or explanation. The instructions also focus on performance oriented self appraisal and that the Reporting Officer must point out the adequacies of exaggerations and also ask the officer concerned whether he would like to reconsider and which may reduce disagreement to the minimum vide para 174(9) of the PandT Manual Volume III it is recorded that no employee to be adversely affected by the prejudicial record without fullest consideration. CS OM .51/5/72- Estt.(A) dated 28.5.1972 stipulates that every confidential report must contain appreciation of the character as shortcoming of the officer reported upon reference specific incidence may be made of inefficiency , lack of initiative or judgement etc., even though only by a general nature. In fact volumes are available on how to write an ACR. Therefore, with the assistance of learned counsel for the respondents I had gone through the ACRs for all these years which contains Reporting officer's reports and reports of the Reviewing Authority. The applicant seems to have made a appraisal of himself delineating the target and satisfactory completion of it and officer agrees that is so. Then he says that result achieved are satisfactory. His devotion to duty is good, integrity is beyond doubt, his attitude towards public and Scheduled Caste are good , is able to take effective action to prevent atrocities and ensure justice to Scheduled Caste and no negative matters are recorded against him and the Reviewing Authority also agrees these findings. By consideration of elements of consideration it may be the the Reporting Officer found 'satisfactory' as a term indicating satisfaction. Probably his parameters of consideration are the standard set for himself and others might be unduly high as otherwise there cannot be a logical explanation, the ingredients for consideration in his side itself and the conclusion he derived the same is true of the Reviewing Officer also who had just agreed with. It is the same Reporting officer had been reporting for all the concerned years he seems to be satisfied if target assigned to the applicant are satisfactorily executed, it cannot be said that a mere 'satisfactory' is to be awarded to him. As there must be some correlation between the elements of consideration and conclusion. Elements of consideration cannot go 70% and the conclusion cannot reach up to 30%. It is remembered by the elements of consideration has been arrived at by Reporting Officer himself. The Reviewing Authority may have to review this order of the Reporting Officer with more balance than normal as the elements of consideration has not been given full credit to. This is the same as with regard to the whole of the scenario through which I have gone carefully, diligently with the help of both the counsels. Therefore, it appears to me that even though Dev Dutt judgment had specified the stream to be followed in such cases and though only in 2010 that ACR's were communicated to him, it was not considered properly vide annexures A-13 to A-18. The orders in annexures A-13 to A-18 are bereft of consideration. When sitting in a appellate jurisdiction the Reviewing Authority has to specifically answer the issues raised and pass a speaking order especially clear to all that elements of consideration and conclusion derived are at variance with each other. Therefore, Annexures A-13 to A-18 are hereby quashed. The matter is remitted back to the 2nd respondent who shall afford an opportunity of being heard to the applicant and pass an order on annexure A-19 on all the issues canvassed in it and shall also keep in mind the various instructions issued by the DOPT in this regard for writing of ACRs we caution that transparency in administration in the harmonizing factor. He shall complete the process of hearing and issuing a speaking order within 2 months next. The consequences of such finding shall be made available, if it is in his favour by further promotions as the case may be. If not the applicant can approach challenging the same . OA is allowed to the limited extent as stated above. No order as to costs.

The learned counsel for the respondents submits that since the applicant has not challenged the grades given to him in the report he cannot be allowed to say that the grades are non-reflective of his true achievements. But then that may not be the crux of the matter and the issue is not whether the report itself is inadequate but the elements of consideration involved in the report and the conclusion are at variance with each other that the same kind of objective consideration of the elements involved in that report as signified by the Reporting Officer himself there cannot be a conclusion which is variance with the elements. Reference also may be made in Abhijit vs. Union of India reported in 2010 (1) SC LandS 959 wherein it is reiterated that non-communication of entries in ACR of a public servant as civil consequences.