Union of India v. B. K. Mishra, GO-2593W, Executive Engineer (Civil)
2015-10-15
B.K.SHARMA, M.R.PATHAK
body2015
DigiLaw.ai
JUDGMENT : B.K. Sharma, J. This writ appeal is directed against the judgment & order dated 18th January, 2013 of the learned Single Judge passed in WP(C) No.20/2012. The appeal is also directed against the order dated 27th November, 2013 of the learned Single Judge passed in Review Petition No.6/2013. While by the order dated 18th January, 2013 passed in the writ petition, a direction was issued to consider the particular representation of the writ petitioner by an authority higher in rank than the Accepting Officer (in respect of ACR), by the second order dated 27th November, 2013, the review petition filed by the appellants against the said order was rejected. 2. The facts involved are in very narrow campus. The writ petitioner while was serving as Executive Engineer (Civil) in the Border Roads Task Force (BRTF), he was aggrieved by the gradings given to him in his ACRs. As recorded in the impugned judgment dated 18th January, 2013, although the Reporting Officer had graded him as "very good" but the Reviewing Officer graded him as "good" and the same was also accepted by the Accepting Authority. Being aggrieved, he had submitted a representation dated 7th January, 2010 seeking up-gradation of the gradings. 3. Following the decision of the Apex Court in Dev Dutt v. Union of India & ORS. reported in (2008) 8 SCC 725 , the learned Single Judge opined that the writ petitioner ought to have been apprised of the said position in his grading in the ACR enabling him to make representation. Accordingly, the writ petition was disposed of providing that the representation of the petitioner should be considered by an authority higher in rank than the Accepting Authority. Being aggrieved by the said order, the appellants preferred a review petition inter alia contending that the particular exercise, directed to be carried out by the impugned order, had already been exercised inasmuch as the representation made by the petitioner along with some other representations had been rejected by an authority higher in rank than the Accepting Authority. The learned Single Judge by his order dated 27th November, 2013 while rejecting the review petition observed that the review petition did not disclose as to who was the competent authority who had rejected the representation of the writ petitioner.
The learned Single Judge by his order dated 27th November, 2013 while rejecting the review petition observed that the review petition did not disclose as to who was the competent authority who had rejected the representation of the writ petitioner. Referring to the decision of the Apex Court in DEV DUTT (supra), which was subsequently affirmed by a larger Bench of the Apex Court, the learned Single Judge declined to review the earlier order referred to above. Hence, this appeal. 4. We have heard Ms. Zairemsangpuii, learned counsel representing the Union of India, i.e. the appellants. We have also heard Mr. A.R. Malhotra, learned counsel representing the sole respondent, i.e. the writ petitioner. 5. Referring to the documents annexed to the writ appeal, Ms. Zairenasangpuii, learned Central Government counsel submits that since the representation of the writ petitioner was eventually rejected by the Defence Secretary, who is higher in rank than the Accepting Authority, the directions contained in both the impugned orders are redundant and accordingly, both the orders are required to be interfered with. 6. Countering the said argument, Mr. Malhotra, learned counsel appearing for the writ petitioner/respondent submits that as the note-sheets annexed to the writ appeal would reveal various departmental authorities had put up notes in the files and it is those notes, which were approved by the Defence Secretary without assigning any reason. Placing reliance on a decision of the Apex Court in Oryx Fisheries Private Limited v. Union of India & ORS. reported in (2010) 13 SCC 427 , he submits that it was incumbent on the part of the Defence Secretary to dispassionately consider the representation of the petitioner and also to assign reason even if the same was to be rejected. He submits that the Defence Secretary simply having endorsed the views expressed by the various authorities in the Department, such course of action cannot be said to be the course of action required to be adopted and followed as per the directions contained in the impugned judgments. 7. We have given our anxious consideration to the submissions made by the learned counsel appearing for the parties and have also perused the entire materials available on record. 8. On perusal of the copies of the note-sheets annexed to the writ appeal, what has transpired is that the particular file was moved at different levels.
7. We have given our anxious consideration to the submissions made by the learned counsel appearing for the parties and have also perused the entire materials available on record. 8. On perusal of the copies of the note-sheets annexed to the writ appeal, what has transpired is that the particular file was moved at different levels. As will be evident from the note contained at Page-22 of the appeal, approval of the Defence Secretary, who is higher than the Accepting Authority, was solicited clearly indicating that the representation should be rejected. Thereafter, the file was put up to various other authorities and in one of the note-sheet (Page-23), it was indicated that the case should go to the Defence Secretary. Eventually the file was put up before the Defence Secretary, who simply put his signature on the final note. Thus, there was no independent consideration of the representation of the writ petitioner by the Defence Secretary said to be the authority higher in rank than the Accepting Authority. It is in this connection, Mr. Malhotra, learned counsel appearing for the writ petitioner/respondent has placed reliance on the decision in Oryx Fisheries Private Limited (supra). In the said decision, referring to the earlier decision in Kranti Associates (P) Limited v. Masood Ahmed Khan reported in (2010) 9 SCC 496, the Apex Court laid down the principles relating to functioning of the administrative authorities including the quasi-judicial authority. It was laid down that administrative decisions must be informed of reasons and more particularly when the said decisions affect anyone pre-judicially. It was also observed that recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. 9. In the instant case, not to speak of assigning any reason by the Defence Secretary, he simply endorsed the views expressed by various departmental authorities in the particular file. In terms of the directions contained in the impugned judgments, what was required of him was to consider the representation of the petitioner dispassionately without being guided by any observations made by his subordinates. He was also required to assign independent reason on the basis of the representation submitted by the petitioner. In other words, he was required to pass a speaking order towards disposal of the representation. 10.
He was also required to assign independent reason on the basis of the representation submitted by the petitioner. In other words, he was required to pass a speaking order towards disposal of the representation. 10. Above being the position, we see no reason to interfere with the impugned judgment & order dated 18th January, 2013 passed in WP(C) No.20/2012 and so also the order dated 27th November, 2013 passed in Review Petition No.6/2013 by the learned Single Judge and consequently, the writ appeal stands dismissed, directing the respondents to implement the directions contained in the aforesaid impugned judgment & orders, as expeditiously as possible, preferably within 2(two) months from today. 11. With the above observation, writ appeal stands dismissed.