Per: RANJANA SHAHI, JUDICIAL MEMBER
1. The applicant has filed the present Original Application against the order dated 28.02.2013, (Annexure A/1), whereby representations of the applicant dated 10.09.2012 and 14.09.2012 against the entries recorded in his Annual Performance Appraisal Report (APAR) for the year ending 2011-12 (Part 'A' & 'B') has been rejected.
2. Brief facts of the case, as stated by the applicant, are that he belongs to Indian Railway Service of Engineers (IRSE). During the period from 01.04.2011 to 08.08.2011, he worked as Dy. CE/SOR and from 09.08.2011 to 31.03.2012 as Dy. CE/C/HQ. For the period from 01.04.2011 to 08.08.2011, a part APAR namely Part-A was initiated by the Chief Planning & Design Engineer wherein grading of 'Good' was given and for the period from 09.08.2011 to 31.03.2012, the APAR (Part B) was initiated by Sh. M.B. Vijay, respondent No. 4, wherein grading of 'Average' was given.
3. The applicant further states that thereafter, he submitted a representation dated 10.09.2012 against the below benchmark grading in the APAR (Part-A), in which he brought out that -
(A) Objects and targets of the applicant were as per the duty list published by the railway.
(B) All the targets are achieved as per the item- wise details given in the representation.
(C) Award was given by the Member Engineering / Railway Board and General Manager for the preparation of USSOR- 2010.
(D) The reporting officer has agreed with the objectives & targets filled by the applicant in self-appraisal.
(E) The reporting officer has admitted in item 3 that "quality of performance was just as required".
The applicant states that he requested the General Manager, North Western Railway to consider the representation and upgrade the grading and remarks on attributes in view of factual details of targets & achievements but the representation of the applicant was not considered by the General Manager in right perspective and a non-speaking order dated 28.02.2013 (Annexure A/1) was issued thereby rejecting the representation of the applicant.
4. The applicant alleges that in the Part-B of the APAR, adverse entries were made by the respondent no. 4 in conspiracy and consultation with respondent no. 3 abusing the process of wreck vengeance and personal vendetta as the applicant resisted their irregular and illegal activities. The applicant states that he represented against the below benchmark grading and attributes in the Part-B of the APAR vide letter dated 14.09.2012 wherein it was brought out that how the remarks made in the APAR were factually incorrect and subjective but the General Manager has not considered them in right perspective and rejected the representation without passing reasoned and speaking order.
5. The applicant has placed reliance upon the judgment of the Hon'ble Supreme Court passed in the case of Dev Dutt vs. Union of India & Ors., reported in (2008) INSC 885 : (2008) 2 SCC (L&S) 771, stating that as per this judgment, the representation against the below benchmark gradings should be considered and decided by the authority one rank above the authority that had accepted the APAR. But in the present case, while General Manager was the accepting authority, he also decided & rejected the representation of the applicant and, therefore, the impugned order dated 28.02.2013 was issued without jurisdiction and authority, hence, illegal.
6. In reply, the respondents have stated that it is not mandatory for the initiating authority to serve with the memo/warning before initiating the APAR. The initiating authority after consideration of the remarks and his contribution, involvement in the work taking initiating and decisions, working a team member by guiding and motivating the staff, inter-personal relation and coordination with subordinates, colleagues and superior beside other attributes such as innovations, human resource development, cost and expenditure control, environment improvement and aptitude towards research and development etc. had given overall grading of "Good". It has nothing to do with benchmark. In fact, it is the sincere and honest evolution of performance which is required in the interest of employee and improving organizational function. This gives proper insight and introspection to develop and grow the personality of an officer for advancement in the career by taking care of shortcomings. It is based on impressions and interactions over a year and final achievements thereof. Thus, no fault can be found in the grading of the applicant.
7. The respondents further state that the assessment of performance of officers is done at three levels i.e. reporting officer, reviewing officer and accepting officer. Thus, there remains no scope for prejudice at a particular level as alleged by the applicant because the same is rectified or modified at higher level. In the case of the applicant, the higher authorities agreed with the assessment of reporting officer even the representation preferred by the applicant was also considered. Thus, the assessment had been done in objective manner which deserves to be maintained. Mere grading below benchmark did not hold it illegal or unwarranted. As per law, one can be graded average or good as well. The Hon'ble Apex Curt subsequent to the judgment relied by the applicant has clarified this aspect of the matter. Not only it but the fact that applicant represented which was duly considered clearly goes to prove that the law so relied had duly been complied with. Further, as per Railway Board letter dated 23.12.2009, the representation against the entries in the APAR should be put up for consideration and decision to the officer who accepted the APAR. Thus, consideration of his representation by the General Manager cannot be faulted. There is no procedure/ rule / law for consideration of representation by an authority higher than the accepting authority himself rather the Railway Board letter dated 23.12.2009 specifically provides for consideration and decision by the officer who has accepted the APAR.
8. Heard both the sides and perused the material available on record.
9. The applicant is aggrieved by the entries recorded in his APAR for the year ending 2011-12 (in two parts i.e. Part 'A' & 'B') wherein grading of "Average" was given whereas grading for selection grade i.e. the benchmark is "Very Good". He is also aggrieved that his representations dated 10.09.2012 and 14.09.2012 submitted against the said entries have been rejected by the General Manager, who was accepting authority though the same was to be considered by the authority one rank above the authority that had accepted the APAR.
10. The applicant has made certain allegations against the authority for not giving him grading upto the benchmark which would have facilitated his next promotion to selection grade. To our mind, it cannot be claimed by an employee that his APAR has to be graded Outstanding or Very Good to reach a certain benchmark. It is a settled proposition of law that the Courts/Tribunals should not interfere in the matter of grading of APARs as it is the domain of the officers who have seen the employees' work. Similar view has been taken by this Bench of the Tribunal in one of the cases (OA No. 384/2015) decided on 22.07.2016.
11. However, the second ground taken by the applicant is that the General Manager was the accepting authority, as such, he was not competent to decide and reject his representation. The respondents in para 4.11 of their reply have stated that as per Railway Board letter dated 23.12.2009, the representation against the entries in the APAR should be put up for consideration and decision to the officer who accepted the APAR. As such, the consideration of his representation by General Manger was in order. They have also submitted before us the letter dated 23.12.2009 issued by the Ministry of Railways, Railway Board wherein it has been clarified that the representation against entries in an APAR should be put up, for consideration and decision, to the officer, who has accepted the APAR.
12. The Hon'ble Supreme Court in the case of Dev Dutt (supra), as relied upon by the applicant, in para 37 has held as under: -
"37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible."
In the light of the ratio decided by the Hon'ble Supreme Court, as above, we are of the view that the consideration and decision on the representations of the applicant by the General Manager, who admittedly had been accepting authority, is an appeal from Caesar to Caesar. As such, the representation of the applicant deserves to be considered and decided by an authority higher than the one who accepted the APAR.
13. The applicant has also placed reliance upon the 'Instructions' with regard to APAR for Officers upto SAG, HAG and above HAG. Relevant para 9 of the said 'Instructions' is reproduced as under:-
"9. Representation
9.1 The Officer reported upon may have the option to give his comments on the PAR. Such comments may be restricted to the specific factual observations contained in the Performance Appraisal Report leading to the assessment of the Officer in terms of attributes, competency and output. If comments are submitted, officer one level higher to the Accepting Authority in consultation with the Reporting / Reviewing / Accepting Authority would have the option to accept them and modify the PAR accordingly. If the comments are not accepted, the views of the Competent Authority (one level higher to Accepting Authority) would be communicated with reasons to the Officer reported upon."
From bare perusal of the above instructions, it is clear that the authority/officer one level higher to the Accepting Authority is the competent authority to consider and decide such representation.
14. The Mumbai Bench of this Tribunal vide its order dated 03rd April, 2017 in the case of Mahesh Kumar Agarwal vs. UOI & Anr. (OA No. 64/2016) in para 38, 43 and 44 has held as under: -
"38. It is thus obvious that once representation is made for upgradation of remarks in the ACR it needs to be decided by the authority higher in rank than the Reviewing/Accepting Authority and not by the same authority, in order to avoid instances of confirming the same grading given by them.
43. It is thus obvious that the DOP&T OM simply states that the representation submitted by the Government employee shall be considered by the Competent Authority. In other words it does not refer to the Accepting Authority to decide the representation. In the present case it is obvious that as per Railway Board's instructions the Accepting Authority of the APAR itself is treated as Competent Authority to consider and decide such representations. This is clearly contrary to the decision rendered by the Hon'ble Supreme Court in above referred Sukhdev Singh's and Dev Dutt's case, in which it has been specifically laid down that such representations need to be considered and decided by an Authority higher than the Accepting Authority. In view of this it is necessary for the Railway Authority to issue modified instructions in consonance with the decision rendered in Sukhdev Singh's and Dev Dutt's case referred above in order to remove any anomaly.
44. Hence we direct the Railway Authority to take appropriate steps in this behalf and issue modified instructions in consonance with the decision rendered in Sukhdev Singh's and Dev Dutt's case, so that in future representations are decided by the authority higher than the Accepting Authority, in order to curb recurrence of such mistake, as was done in the present case since applicant's representation was decided by the same Accepting Authority and not by any higher authority. The modified instructions as above would also ensure in minimising the litigation."
From bare perusal of the above, it is clear that once representation is made for upgradation of remarks in the ACR it needs to be decided by the authority higher in rank than the Reviewing/Accepting Authority and not by the same authority, in order to avoid instances of confirming the same grading given by them.
The Mumbai Bench of this Tribunal has also observed that it is obvious that the DOP&T OM simply states that the representation submitted by the Government employee shall be considered by the Competent Authority. In other words, it does not say that the Accepting Authority will decide the representation. Further, it has been observed that as per Railway Board's instructions, the Accepting Authority of the APAR itself is treated as Competent Authority to consider and decide such representations. This is clearly contrary to the decision rendered by the Hon'ble Supreme Court in above referred Sukhdev Singh's and Dev Dutt's case, in which it has been specifically laid down that such representations need to be considered and decided by an Authority higher than the Accepting Authority.
Therefore, the Mumbai Bench of this Tribunal directed the Railway Authority to take appropriate steps in this behalf and issue modified instructions in consonance with the decision rendered in Sukhdev Singh's and Dev Dutt's case, so that in future representations are decided by the authority higher than the Accepting Authority, in order to curb recurrence of such mistake, as was done in the present that since applicant's representation was decided by the same Accepting Authority and not by any higher authority.
15. In the light of above, the respondents are directed to reconsider the representations of the applicant dated 10.09.2012 and 14.09.2012, against the entries recorded in his Annual Performance Appraisal Report (APAR) for the year ending 2011-12 (in two parts), by an authority higher than the Accepting Authority in accordance with law while considering the relevant record and pass a reasoned and speaking order on the said representations and the same be communicated to the applicant at the earliest, in any case, within a period of two months from the date of receipt of a certified copy of this order. However, it is made clear that this does not tantamount to expressing any opinion on the merits of the case.
16. With these observations and directions, the present Original Application is disposed of. No order as to costs.
17. In view of the order passed in the Original Application, all the pending Misc. Applications, if any, stand disposed of.
