$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 08.09.2014
+ W.P. (C) 5884/2014
M.N. KHAN ..... Petitioner
Through: Mr. L.S. Chaudhary, Advocate.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Vivek Goyal, CGSC with Ms. Prema Priyadarshini, Advocate for R-1/UOI.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)
1. The petitioner is aggrieved by an order of the Central Administrative Tribunal (hereafter referred to as "CAT") dated 12.05.2014, whereby his grievance against denial of the Senior Administrative Grade (hereafter referred to as "SAG") in Bharat Sanchar Nigam Limited (hereafter referred to as "BSNL"), on the ground of his not possessing the adequate bench-mark ACRs, was rejected; the petitioner had preferred OA 1168/2012.
W.P.(C)5884/14 Page 1
2. Briefly, the facts are that the petitioner had been communicated the adverse - below bench mark ACR - on 26.05.2009, pursuant to a direction by the CAT in OA 1255/2006 on 21.01.2009. At that stage, the petitioner had claimed a direction that he ought to be promoted to SAG retrospectively from the date when his immediate junior got that benefit. The below bench mark ACRs pertained to some parts of the period 1997-98. The petitioner represented against the said downgraded ACR on 1.6.2009; this was, however, rejected on 6.4.2010 by the BSNL which continued to maintain the position that the earlier grading was correct. Union of India too rejected the representation on 24.6.2010. It was in these circumstances that the petitioner approached the CAT once again - this time in the second round on 10.10.2011 vide OA No.3966/2010. The CAT noted that the Office Memorandum communicated to the petitioner on 6.4.2010 was bereft of any reasoning; consequently it set aside that order and directed the respondents to consider all relevant facts and pass appropriate orders in accordance with law.
3. In furtherance of the directions of the CAT, on 22.2.2012 the BSNL - by a more elaborate order, analyzed all the relevant facts and rejected the petitioner‟s representation. In this order, the BSNL noted 7 salient aspects which went into its consideration and inter alia observed as follows: -
W.P.(C)5884/14 Page 2 "On perusal of self-appraisal of the officer reported upon in the ACRs of the impugned periods & his representation dated 01.06.2009, vis-a-vis the comments of reporting and reviewing authorities recorded in the ACRs, it has been noticed that:
1. While representing his case, the officer has elaborated certain issues regarding political matters which seems totally out of place and can not be accepted as such.
2. There had been complaints from VVIPs, including leaders of opposition of Vidhan Sabha & Defence Minister's telephone at Sefai. The officer has contended that these complaints have never been conveyed to him, which reflects failure of FRS mechanism of the SSA, and improper redressal of VVIP complaints.
3. The officer has made achievement of only 1400 DELs during the period 01.04.98 to 02.12.98. However after going through the ACR of succeeding part i.e. 03.12.98 to 31.03.99, it is perceived that a total no. of 2023 DELs were provided against set target of 2500 for the fiscal year 1998-99. As such, DELs targets not achieved.
4. Out of 8 new & 6 expansions of exchanges, 5 were brought into service without clearance of Acceptance Testing, violating the departmental procedures.
5. The performance of several exchanges, as well as office working, had not been up to mark, as observed during the inspections and intimated in visit notes dated 20.07.98, 05.10.98 and 18.11.98 of GM (D).
6. The officer has claimed for the commissioning of M/W schemes but the same were commissioned by Project/Installation Team.
W.P.(C)5884/14 Page 3
7. Faults/100 Stn./month were reported more than the target set for periods and trunk efficiency lower than the target fixed but in his representation the officer did not raise any contention on achievements of these operational parameters.
Under Para B (2) Part-III (Management Qualities) of the ACR of the period 01.04.98 to 02.12.98, reporting officer has narrated that the officer did not put his best to prepare infrastructures for 6K OCB Main exchange at Etawah, despite several meetings, reminders and commitments.
The Reviewing Officer, while reviewing the ACRs of both the periods, i.e., from 08.08.97 to 31.03.98 and 01.04.98 to 02.12.98, has also agreed with the assessment of the officer made by the reporting officer.
The matter has been examined in detail and keeping in view the points brought out by the officer vis-a-vis records of the case and relevant facts and circumstances, the Competent Authority has taken the following decision:-
ACR for the periods 08.08.97 to 31.03.98 and 01.04.98 to 02.12.98 Upon an objective assessment of the facts available, considering all other relevant material on record and the contentions made by the petitioner, it is observed that the concerned reporting and reviewing officers have done reporting/reviewing after carefully assessing the officer's performance objectively, dispassionately and fairly. Hence the overall grading recorded as 'Average' by reporting and reviewing officers in ACRs for the periods 08.08.97 to 31.03.98 and 01.04.98 to 02.12.98 is fully W.P.(C)5884/14 Page 4 justified and the competent authority is of the considered view that up gradation of the grading given in the ACRs of Shri M.N. Khan (Staff No.8187), for the period 08.08.97 to 31.03.98 and 01.04.98 to 02.12.98 does not merit any consideration. The competent authority has decided that the grading recorded by the reporting and reviewing officers in the ACRs for the period 08.08.97 to 31.03.98 and 01.04.98 to 02.12.98 shall be treated as final for all intent and purposes.
A copy of the order shall be placed in the ACR dossier of Shri M.N. Khan (Staff No. 8187), DGM Panvel (Maharashtra) now retired.
This issues with the approval of Competent Authority."
4. The petitioner finally preferred OA No.1168/2012 to assail the order dated 22.02.2012. The CAT held that the BSNL could not be faulted in issuing the latest order rejecting the request for upgradation of the ACR for the relevant period. The CAT also, inter alia, noticed the petitioner‟s contentions that the BSNL or its officers were not competent to review, or go through the records pertaining to the point of time when the BSNL itself had not been formed, and petitioner continued to be deputationist, and rejected the same.
5. Learned counsel for the petitioner submits that the CAT fell into error on various counts. Firstly, the reasons adduced in the impugned order of 22.2.2012 are practically a reiteration of the earlier order dated 6.4.2010, which was ultimately quashed by the CAT in its order of 10.10.2011. The BSNL, in short, W.P.(C)5884/14 Page 5 could not be permitted to raise the same issue which had been gone into by the CAT. Secondly, it was contended that as an officer employed by the Central Government, i.e., the DoT - the petitioner‟s appraisal had to be conducted by the competent authority in the DoT or the Central Government, and could not have been undertaken by the BSNL.
6. The above narrative would show that the petitioner approached the CAT repeatedly - this time in the third round complaining against his denial of the benefit of SAG. Incidentally, on the conclusion of the first round, the respondent BSNL, for the first time, communicated his „below bench mark ACR grading‟. At that point in time, the petitioner‟s grievance was genuine. His representation met with rather cryptic rejection on 6.4.2010, which he challenged in the second round. The CAT on that occasion felt that cryptic order required deeper analysis, and the administrative authority had to consider overall merit of the petitioner‟s functioning, having regard to the record. Significantly, the petitioner does not appear to have had any issue with the BSNL officers reviewing the record. Indeed his representations - which are part of the record, are all addressed to the BSNL itself and not to the DoT. This Court notes that, significantly, at the time of the conclusion of the first round, the petitioner‟s representations were rejected by the BSNL which was impugned in the second round. No grievance was articulated with regard to the BSNL‟s competence at that W.P.(C)5884/14 Page 6 stage. Furthermore, we noticed that the representations originally addressed to the DoT were, in fact, considered by the BSNL. Had the petitioner voiced his objections to the BSNL taking a decision in the matter in his representations, one could have understood that CAT was bound to go into the same. No ground appears to have been urged before the CAT; in fact the BSNL was made a party. Furthermore, as on the date when the impugned order was made, the entire concerned functioning of the DoT stood handed over to the BSNL. The relevant cutoff date when the BSNL was formally created was sometime in 2000, but BSNL existed as a separate wing of the DoT in 1997- 98, and the records pertaining to the petitioner‟s work and performance were available with it. The petitioner‟s functioning at the relevant period took place under the officers in the BSNL.
7. So far as the merits of the order dated 22.2.2012 are concerned, this Court is of the opinion that sitting in judicial review and in the second instance at that, the scope for screening the administrative authority‟s order is extremely narrow. The petitioner must establish procedural irregularity, illegality, proven mala fide and an approach so unreasonable that no reasonable man can adopt, to succeed. The elbow room under Article 226 of the constitution of India is virtually non- existent. What the petitioner is seeking, in short, is for the Court to sit in the arm chair of the administrative authority and decide whether his performance at the relevant time deserves W.P.(C)5884/14 Page 7 „very good‟ or „good‟ grading. Keeping this perspective in mind, the reasons adduced in the second order dated 22.2.2012 can hardly be said to be unreasoned, much less inadequate. Unlike the earlier order - which was cryptic and mostly unreasoned, the second order lists out seven reasons why the below bench mark grading of „Average‟ requires to be maintained.
8. Having regard to the fact that none of the vitiating factors outlined earlier exists in this case and could be established, we are of the opinion that the CAT‟s conclusions cannot be faulted with. The petition is wholly without merit and is accordingly dismissed. The petitioner shall bear the costs of the proceedings quantified at `25,000/- (Rupees twenty five thousand) to be paid to the respondents within four weeks.
S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) SEPTEMBER 08, 2014 /vks/ W.P.(C)5884/14 Page 8