Vivek Srivastava vs Union Of India & Ors.
2017 Latest Caselaw 6142 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 4889/2016

                                          Reserved on: 2nd August, 2017
                                  Date of decision : 3rd November, 2017

    VIVEK SRIVASTAVA                               .....Petitioners
                  Through               Mr.Ankur Chhibber, Mr.Bhanu
                                        Gupta, Mr.Rajesh, Advs.

                         versus

      UNION OF INDIA & ORS                          ..... Respondents
                    Through             Mr.Anil Soni, Mr.Naginder
                                        Benipal, Mr.Nivesh Sharma,
                                        Advs. for R-1 to 4

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA

      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)."

2. 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.

3. 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.

4. 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

'औसत', 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 18 th 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.

5. 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.

6. 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).

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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 8 th

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 - 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."

14. 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.

15. As has been observed by us earlier, respondent no.5 had

initiated the ACR of the petitioner for the period 1 st 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.

16. 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 officer". 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 Ethics". R.P. Singh, recorded his disagreement

with the same in the following:

"कमाण्डेंट - 117 बटालियन द्वारा ररपोटााधीन अधधकारी की वार्षाक गोपनीय ररपोटा के भाग - तीन (क) में दर्ा की गई प्रततकूि अभ्यक्ु तत तथा ग्रेडडिंग से मैं सहमत हूूँ | इसके साथ-साथ वार्षाक गोपनीय ररपोटा के भाग - तीन (ख) में दर्ा की गयी तकनीकी गोपनीय ररपोटा से मैं सहमत नहीिं हूूँ तयोंकक तकनीकी वार्षाक गोपनीय ररपोटा लिखने वािे अधधकारी ने ररपोटााधीन अधधकारी के कायों का मल ू यािंकन उनकी कायाक्षमता से अधधक ककया है | ररपोटााधीन अवधध के दौरान अधधकारी का काया औसत श्रेणी का रहा है |"

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."

17. 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)", reported as under:-

"अपने काया क्षेत्र की औसत र्ानकारी रखने वािे धिककत्सा अधधकारी हैं | मरीर्ों की दे खभाि तथा उनका उपिार भी औसत स्तर का रहा है |"

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."

18. R.P. Singh thereafter graded the petitioner as average and

in the general assessment reported the following:

"अपने व्यवसाय की औसत र्ानकारी रखने वािे धिककत्सा अधधकारी है | ररपोटााधीन अवधध के दौरान अधधकारी का काया एविं व्यवहार औसत स्तर का रहा है |"

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."

19. A bare reading of the above remarks would show that

though R.P. Singh was the "Administrative Reviewing Officer",

and not the "Technical Reviewing Officer", 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.

20. 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.

21. 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 Officer" had not agreed with

the remarks of the "Technical Reporting Officer" but had in fact

downgraded the same.

22. 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.

23. 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.

24. 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.

25. The writ petition is allowed in the above terms with no

order as to costs.

NAVIN CHAWLA, J

SANJIV KHANNA, J NOVEMBER 03, 2017/ RN/vp