Friday, October 11, 2013

Bom NO.467/2012 NOT COMPLETE



Dated this _________, the ____ day of ____    , 2013.


Mr. Jaswinder Singh,
Working as Post Master General (B.D.),
Maharashtra Circle, Mumbai 400 001,
R/at C 56, Hyderabad Estate,
Nepean Sea Road, Mumbai 400 026. ...   Applicant

(By Advocate Shri S.A. Deshpande)


Union of India, through Secretary,
Ministry of Communications & IT,
Department of Posts cum
Director General, Department of
Posts, Dak Bhavan, Sansad Marg,
New Delhi 110 001. ...  Respondents

(By Advocate Shri V.S. Masurkar)

Per: Smt. Leena Mehendale, Member(A)
This OA is filed on 17th August, 2012 to challenge the remark of “Good” for the ACR (Annual Confidential Report) for the period 31.08.2004 to 31.03.2005 which is nine months. He prays as under:-
“a) That this Hon'ble Tribunal may kindly be pleased to call for the relevant Records based on which some vague/damaging/luke warm entries have been made & Grading of Good has been given in the ACR.

b) The Hon'ble Tribunal may kindly be pleased to quash and set aside the impugned orders dated 16.09.2011.

c) This Hon'ble Tribunal may direct the Respondent to expunge all vague/damaging/luke warm entries as given in Paras A2; B2; B5; B6/Part III & Para 3/Part IV of the ACR & upgrade the Grading of 'Good' (as given in Para 4/Part IV) to that of 'Very Good'.”
2. Briefly stated, the applicant is working as P.M.G. (Post Master General) in the section of Business Development of Maharashtra Circle and been put in his present S.A.G. (Senior Administrative Grade) since 10.11.2003. For the period from 31.08.2004 to 31.03.2005 which is nine months, his ACR (Annual Confidential Report) grades him as 'Good' which is below the benchmark for the purpose of promotion for the next level/rank as C.P.M.G. (Chief P.M.G.).  Vide Respondent's letter No.CS/APAR/2010-11/BB/Punjab dated 14.12.2010 (Annexure A-3), some adverse remarks as well as overall grading of 'Good' was communicated to him.  Against this, he preferred his representation dated 22.12.2012 (Annexure A-4) which is addressed to the President of India, being the Competent Authority, to expel the adverse remarks.  It is, also, seen from Annexure A-2 that the Reviewing Officer has not upgraded his remark.
3. His representation was rejected and communicated to him on 16.09.2011 vide Annexure A-1.  The Applicant, therefore, impugns both Annexures A-1 & A-2 and prays for the relief stated above.
4. As a first ground the applicant points out that his ACR for the year 2004-05 which should have been written before end of May 2005 was actually written on 17.10.2005 and was reviewed on 01.11.2005 by the Reviewing Officer who retired on 30.10.2005.  It was actually communicated to him only on 14.12.2010 which is 5 years after the actual report was written.  The Reviewing Officer had retired on 30.10.2005 itself and the Reporting Officer also retired in 2008.  Thus, in 2010 when the remarks were communicated to him and his representation against them was called for, he did not have the advantage of any reconsideration by the Reporting or the Reviewing Officer.  This aspect is especially important in respect of the Reviewing Officer since he had merely agreed with the remarks of the Reporting Officer when he was required to write the review and which he has completed on the next day of his retirement.  Therefore the applicant has lost the benefit of any reconsideration to be exercised by the Reviewing Officer. He is also deprived of any reconsideration by the Reporting Officer. He is further jeopardize as he is called upon to offer his representation 5 years after the report was actually written.  In the present structure of bureaucracy the ACRs are the key for any meaningful career of the senior bureaucrat.  Any ACR which is below Bench Mark for the purpose of promotion is bound to adversely effect his interest and therefore, he deserves a chance to explain it to his own Reporting Officer within a reasonable period after the ACR was actually written.
5. His other argument is that there is no application of mind by the Competent Authority.  It is mentioned at para 5.1 of the OA that the applicant received certain information under RTI.  It shows that a note has been prepared by Director (Staff) stating that:-
“For instance, the officer has himself admitted in his self appraisal that he could achieve only 70.23% of his BD targets.  He also admits that he was not able to complete prescribed establishment review.  The Reporting Officer has taken into account the same and graded the officer accordingly.  The assessment made throughout the ACR gives a sense of the ultimate grading given to the officer.  Therefore, there is no mismatch between the grading and the assessment under various columns.”
6. He, therefore, points out that the Director (Staff) is lower in rank to him and therefore cannot make a proper assessment of the working conditions or the target achievement of the applicant. In the representation the applicant has explained that he has completed 70% of his target for the business development and the major constraint was non-availability of official car to him which could have facilitated his meeting the potential customers with far better ease and efficiency.  It is therefore, not for an officer lower to him in rank to make any assessment of the impact of this constraint on target achievement. The higher authorities including the Minister who is the Competent Authority to decide his representation have merely put their signature on the note and, therefore, it cannot be said that the Competent Authority have applied their mind while rejecting the representation of the applicant.
7. The applicant has discussed all the various parameters which are important parts of the ACR, for example;
• under the caption Quality of Output it is reported - “Quality of performance overall has been good in some areas.  Satisfactory in others.”
• Under the caption of “Knowledge of sphere of Duties” - the Reporting Officer has given the following remarks:
“Knows well the work functions rules, procedure and their application.  Techno-savvy”
• Under the caption of “Leadership qualities – the Reporting Officer has passed following remarks:
“A competent Leader, who can get things done when he puts interest to it.  Capable of contributing new ideas and new methods.”
• Under the caption of “Management Qualities”– the Reporting Officer has passed following remarks:
“Willing to assume responsibility”, good organizing Capacity--, satisfactory with regard to motivation and development of subordinates.”
•  Against the parameters of quantitative achievement the applicant has shown in his self assessment side, an achievement of 100% in target No.1,2,6,7&8, achievement of 95.14% in target No.3, achievement of 89.07% in target No.4 and achievement of 76% in target No.5. The Reporting Officer has written his remarks “Yes, more or less” (which means that more or less he agrees with the quantitative achievement shown by the officer).
8. It is therefore, argued by the applicant that the remark is nothing but a jugglery of words without any meaning being derived from it.  By agreeing with the applicant's 100% & more than 100% achievement in respect of 5 out of his Eight Targets and more than 75% Achievement in respect of the remaining 3 Targets and all the 6 Significant Achievement cited by the applicant in his Self-Appraisal, the Reporting Officer can not by any means dub the applicant's Excellent performance as simply Good & Satisfactory.  This shows subjectivity, bias, closed mind, deceit and malice in the mind of the Reporting Officer who made these Remarks with a jaundiced eye.  These remarks are not based on the applicant's actual Excellent Performance or supported by any evidence, facts & figures.  The only constitute Reporting Officer's arbitrary, unfounded, unjust, unreasonable and random remarks done in the Air, made in a very casual, callous manner. When qualitative parameters have earned him the above mentioned remarks and on the quantitative side also his achievement is 76% only in one out of 8 parameters, there can be no reason for any luke warm remarks on the qualitative side nor can there be any remark of “Good” by way of general assessment.  The general assessment has to be upgraded to “Very Good”.  He further argues that his achievement must be categorized as significantly high.  The applicant has also taken the plea that the Reporting Officer had a caste based bias against him.  However he has not impleaded the Reporting Officer as one of the respondents hence we do not consider it proper to discuss this argument.  Further there is no reason for us to believe that even the Reviewing Officer is an officer with bias.  Therefore, we have to reject the plea of bias taken by the applicant.
9. Learned counsel for the applicant has cited the following judgments:-
a) S.T. Ramesh Vs. State of Karnataka, (2007 (9) SCC 436).
b) M.A. Rajasekhar Vs. State of Karnataka & Anr. (1996 (10) SCC 369)
c) Dev Dutt Vs. Union of India (UOI) and Ors.
d) P.K. Shastri Vs. State of M.P. & Ors.
10. However, we find that all of them have no relevance because in the present issue the “below Bench-Mark remarks" by the Reporting Officer have been communicated to him.  Here, the crux of matter is that it is communicated after five years.  Therefore, the question remains whether a late communication for the “below Bench-Mark remark” can be allowed to adversely affect him or not.  More particularly when he has been given a chance to represent albeit after five years, and his representation has been considered by the Competent Authority and rejected then what is the impact of late communication and does it set off the decision of the Competent Authority on his representation simply on the ground of delayed communication. The second question is whether it can be said that the Competent Authority has passed the order without applying mind.

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