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Smt. Sandhya Baliga, W/o Sh. Sushant Baliga v. Union of India, through the Secretary - Case No. 71/2008 [2008] INCAT 1003 (10 September 2008)

Central Administrative Tribunal

Principal Bench

OA No.71/2008

New Delhi this the 10th day of September, 2008.

Honble Mr. Shanker Raju, Member (J)

Smt. Sandhya Baliga,

W/o Sh. Sushant Baliga,

R/o D-II/166,

West Kidwai Nagar,

New Delhi-110023. -Applicant

(By Advocate Mr. S.K. Gupta)

-Versus-

1. Union of India, through the

Secretary, Ministry of Finance,

Department of Revenue,

North Block,

New Delhi.

2. The Secretary,

Ministry of Housing and

Urban Poverty Alleviation, (Housing Section),

Nirman Bhawan,

New Delhi.

3. The Deputy Secretary,

Department of Revenue,

Ministry of Finance,

North Block,

New Delhi.

4. The Under Secretary (Housing),

Ministry of Housing and Urban

Poverty Alleviation, (Housing Section),

Nirman Bhawan,

New Delhi.

5. The Secretary, C.V.C.,

Satarkta Bhawan, General Pool,

Office Complex,

Block-A, INA,

New Delhi-23.

6. The Secretary,

Department of Personnel & Training,

North Block,

New Delhi. -Respondents

(By Advocates Ms. Jyoti Singh (R 1-5) and Shri Sabha Rahman with Wasim Qadri (R-6)

O R D E R

Prospective ruling has been held to have no application in service matters, with the following observations in P.V. George v. State of Kerala, [1991] INSC 178; 2007 (2) SCALE 262:

24. In Queen (on the Application of Ernest Leslie Wright) v. Secretary of State for the Home Department [(2006) EWCA Civ. 67], it was observed :

"42. The English law in this respect is developing rapidly. Prospective rulings seemed anathema to Lord Wilberforce in Launchbury v Morgans [1972] UKHL 5; [1973] AC 127, 137 and Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council [1998] UKHL 38; [1999] 2 AC 349, 379. By the time of Regina v Governor of Brockhill Prison, ex p Evans (No. 2) [2000] UKHL 48; [2001] 2 AC 19, Lord Slynn at p. 26 H considered that the effect of judicial rulings being prospective might in some situations be "desirable and in no way unjust", though Lord Steyn at p. 28 B thought the point was a "novel one". With some perspicacity Lord Hope of Craighead foresaw at p. 36 that "the issue of retrospectivity is likely to assume an added importance when the Human Rights Act 1998 is brought into force". Lord Hobhouse at p.48 F would have none of it. The latest in this line of authority seems to be In re Spectrum Plus Ltd (in liquidation) [2005] UKHL 41, [2005] 3 WLR 58 where the danger was acknowledged that prospective overruling "would amount to judicial usurpation of the legislative function", per Lord Nicholls at para. 28 but nonetheless he noted that, especially in the human rights field, " 'Never say never' was a wise judicial precept", (para. 42).

43. The question has attracted interest in the academic journals. See Arden L.J., "Prospective Overruling", (2004) LQR 7; Lord Rodger of Earlsferry, "A Time for Everything under The Law; Some Reflections on Retrospectivity", (2005) 121 LQR 57 and Duncan Sheehan and T. T. Arvind, "Prospective Overruling and Fixed/Floating Charge Debate", (2006) 122 LQR 20."

29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf.

2. Applicant, a Commissioner (Appeals), impugns respondents order dated 24.8.2004, whereby the adverse remarks in her ACR for the year 2002-2003 have been communicated. Also assailed is an order passed on 10.7.2007 on representation against the adverse remarks by the Central Vigilance Commission (CVC), whereby the grading of the applicant from outstanding has been toned down to good.

3. Applicant on deputation was appointed as Executive Director (Vigilance) in HUDCO for the period from 15.2.1999 till 2002 and was accorded extension upto 14.2.2004. The applicant filled in a self-appraisal for the period 2002-2003. But for availability of reviewing officer, taking a holistic view of the matter on the basis of the performance of applicant where insofar as her functions and duties are concerned, no memo, warning or advisory notes have been issued to her, graded her as outstanding in dual capacity of reporting-cum-reviewing officer. However, the accepting authority without giving reasons and instances specifically, without finding any appreciable incentives in the area of preventive vigilance, finding the grading of applicant outstanding as overgenerous toned down her grading to good. The aforesaid are being assailed.

4. Learned counsel of applicant stated that in the representation filed against the adverse remarks by the applicant the grading has not been reflected being toned down by the accepting authority, which is deprivation of reasonable opportunity to represent before the grading was toned down, has been afforded. Contravention of principles of natural justice has been held to be illegal by the Apex Court in Dev Dutt v. Union of India, C.A. No.7631/2002 decided on 12.5.2008. Furthermore, learned counsel states that during the reported period of five months the accepting authority has not issued any memo, warning or advisory note to the applicant, yet making a bald statement, downgraded his grading, which is not in consonance with the decision of the Apex Court in State of U.P. v. Yamuna Shankar Mishra, 1997 (4) SCC 7. Learned counsel stated that in the past grading given to applicant was on her performance during deputation and why this has been made adverse is beyond all canons of justice, which is an arbitrary and malafide decision of the accepting authority without any justification.

5. Learned counsel has relied upon a decision of the coordinate Bench in Nanu Singh v. Union of India and others, 2003 (2) ATJ 281 to buttress his plea. The decision of another coordinate Bench in K.M. Varshney v. Union of India & Others, OA No.193/2007, decided on 31.8.2007 is also relied upon.

6. On the other hand, the aforesaid grounds when not raised and agitated before me, in order to afford a reasonable opportunity to the respondents and also to have the say of the respondents on 11.8.2008, a reasonable opportunity has been afforded to the respondents, which on being availed, the contentions have been put-forth by the learned counsel of respondents Ms. Jyoti Singh.

7. Learned counsel while referring to the representation preferred by the applicant to the adverse remarks, states that at one point of time the applicant despite being aware of the downgrading at the time of preferring representation, which has been reflected, where no foundation as to the grounds now taken before the Court having been laid down, violation of principles of natural justice is a useless formality. It is also stated that on the basis of the decision of the Apex Court in U.P. Jal Nigam v. P.C. Jain, CA No.16985/95, the DoP&T issued OM dated 28.3.2006, wherein it is ruled that the overall grading given in the ACR shall not be communicated, even when the grading is below the benchmark for promotion. In the above conspectus, it is stated that when the work of Chief Vigilance Officer (CVO) is assessed by the CVC, as per DoP&T OM dated 28.1.1986 the remarks communicated to the applicant are apt in law and relying upon CVCs guidelines on writing ACR in clause 1.3.3.2 (b) the CVC would continue to assess the work of CVO, which would be recorded in the character roll, the CVC is competent to record adverse remarks.

8. On the other hand, Shri S.K. Gupta, stated that the down gradation in the ACR has not been communicated.

9. I have carefully considered the rival contentions of the parties and perused the material on record, including the ACR folder of applicant.

10. In S.T. Ramesh v. State of Karnataka, 2007 (2) SCC (L&S) 524, in the context of adverse remarks the following observations have been made:

38. The confidential report is an important document as it provides the basic and vital inputs for assessing the performance of an officer and further achievements in his career. This Court has held that the performance appraisal through C.Rs. should be used as a tool for human resource development and is not to be used as a fault finding process but a developmental one. Except for the impugned adverse remarks for a short period of about 150 days, the performance of the appellant has been consistently of high quality with various achievements and prestigious postings and meritorious awards from the President of India. We have already seen that the appellant has been graded as "very good", "excellent" and "outstanding" throughout his career. It is difficult to appreciate as to how it could become adverse during the period of 150 days for which the adverse remarks were made. Furthermore, despite such adverse remarks, the Government of Karnataka, considering his merit and ability and outstanding qualities, has already promoted the appellant as the Inspector General of Police.

11. If one has regard to the above, using the ACR for fault finding process and in the circumstances when on perusal of the ACR recorded the remarks recorded in the ACR of applicant for yester years as per the performance during deputation the accepting authority CVC has upheld the performance of the applicant as outstanding for number of years. This shows that the applicant in all fields of discharge of her duties has been found by the reporting officer with credible reasons recorded as outstanding but the accepting authority only on its ipsi dixit recording that in oblivion of her good record without finding any appreciable incentive in the area of preventive vigilance ruled the outstanding grading as overgenerous. It is trite that when a disagreement arrives at while writing ACR between the authorities at the level of writing the ACR and approving it, there has to be reasons and materials and particular instances have to be quoted to justify, as the ACR is a mirror reflecting the performance of a government servant. In the above context the decision of the Apex Court in Yamuna Shankar Mishra (supra) quoting S. Ramachandra Raju v. State of Orissa, 1994 Supp. (3) SCC 424, an onerous duty has been cast upon the reporting officer to make objective assessment on fair and constructive basis. The assessment should be honest. The very object of communicating the remarks is to facilitate improvement in efficiency of service. The following observations have been made by the Apex Court in Yamuna Shankar Mishra (supra):

7. It would, thus, be clear that 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 51A(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 of 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 the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.

12. I do not find compliance of the observations made by the Apex Court. Insofar as prospectivity of decision in Dev Dutt (supra) is concerned, in view of P.V. George (supra) and for want of any stipulation as to the effect of the judgment being prospective in nature, it has to apply as a declared binding law on the cases, which have been filed before the Court on restrospectivity.

13. The Apex Court in Dev Dutt (supra) clearly ruled that to have fairness and transparency in public administration, ACR and the grading therein if downgraded, an opportunity of representation as a pre-decisional hearing is must, and non-communication of such an entry would be unfair on the part of the respondents. In the instant case, what has been communicated to the applicant through order dated 24.8.2004 sane grading, which has been communicated while making an order on representation, which is not a valid compliance of Dev Dutt (supra). The grading of the applicant, as transpired from the erstwhile grading in the ACR pertaining to yester years, shows a consistent performance of the applicant as outstanding and that too without recording particular instances and reasons apt in law. I have no hesitation to rule that it is without any justifiable reasons that the grading of applicant has been toned down from outstanding to good. This has not only an adverse remarks impact in the service prospects of applicant but also prejudiced here.

14. The contention put-forth by the respondents that the applicant was aware of the downgrading does not absolve them to discharge constitutional obligation of affording a prior reasonable opportunity before toning down the grading of the applicant, as the administrative instructions of 2006 issued by the DoP&T when confronted with a subject matter, which is occupied by a judicial dicta, the law overrides the administrative instructions and shall prevail.

15. In the result, for the foregoing reasons, as I do not find any corrective measures taken or any such adverse performance in preventive vigilance having been brought to the notice of the applicant by way of departmental communication, adverse remarks communicated to the applicant and as upheld in the representation, cannot be sustained in law. Accordingly, OA is allowed. Impugned orders are set aside. Respondents are directed to expunge the adverse remarks in the ACR of applicant for the period 2002-2003 and restore the grading of outstanding with all consequences in law, within a period of two months from the date of receipt of a copy of this order. No costs.

(Shanker Raju)

Member (J)

San.