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2019 DIGILAW 390 (GAU)

Brahmanand Patiri v. State of Assam

2019-03-28

N.KOTISWAR SINGH

body2019
ORDER : N. KOTISWAR SINGH, J. 1. Heard Mr. N. Nath, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned standing counsel for the Forest Department. 2. The petitioner is aggrieved by certain remarks entered by the Reporting Officer in his ACR for the period of 2010-11 (from 4.1.2010 to 31.3.2011), in which the following remark was made under the column, "General remarks, if any" of ACR form: "Sometime speaks wrong thing at wrong place and wrong time" 3. The contention of the petitioner in brief is that the said remark was totally out of place made by the Reporting Officer, which will be clearly evident if one goes through the entire ACRs recorded by the same Reporting Officer not only in the particular assessment year in issue, but also in subsequent assessment years and also the observations and remarks made by the Reviewing and the Accepting Authorities. 4. It has been submitted also that the said remark was never made known to the petitioner, i.e., he was never communicated such an adverse remark. 5. Learned counsel for the petitioner submits that the aforesaid remark in fact, is adverse vis-a-vis the other remarks and the assessment/grading made in ACRs for the aforesaid year as well as subsequent years. 6. It is also the submission of the learned counsel for the petitioner that it is because of this remark, which is adverse in nature, which came in the way of his being promoted to the higher post of Indian Forest Service. 7. According to the petitioner such adverse remark must have played a role in the mind of the members of the review Selection Committee when they held the meeting for promotion to the post of Indian Forest Service on 20.12.2017 and earlier occasions. 8. Accordingly, the petitioner has filed this writ petition seeking expunction of the aforesaid remarks from the ACR which he considers to be adverse, which has adversely affected his career prospects and continues to do so. 9. 8. Accordingly, the petitioner has filed this writ petition seeking expunction of the aforesaid remarks from the ACR which he considers to be adverse, which has adversely affected his career prospects and continues to do so. 9. Learned standing counsel for the Forest Department, however, has raised a preliminary objection on the ground that the aforesaid so called adverse remark was made by the Reporting Officer, when the petitioner was posted in the Bodoland Territorial Council (BTC) area, and as such, only the BTC authority which has full control over the officers and Staff connected with the entrusted subjects working in the BTC area will have the authority and competence to expunge the remark, if required. It has been submitted that ACRs of these officers are written by the appropriate BTC authorities. 10. It has been submitted that since the BTC is the only competent authority which could record the ACRs, any expunction also has to be done by the BTC authority only. 11. Accordingly, it has been submitted by the learned counsel for the Forest Department that since the BTC is the competent authority to comment upon the said ACRs, or the expunge any adverse remarks, the Forest Department as no role to play. 12. Heard learned counsel for the parties and perused the materials on record. 13. In order to appreciate the contentions of the petitioner that the aforesaid remark amounts to an adverse remark in the context of the overall assessment made in the ACRs not only by the concerned Reporting Officer but also by the Reviewing and Accepting authorities; and that the aforesaid remark is out of tune with the other general tenor of the entries made in the ACRs and thus, is inconsistent with the other remaining remarks or observations made in the ACRs, it would be necessary to examine the relevant portions of the ACRs for the relevant period. 14. Accordingly, for the aforesaid purpose, the relevant portions of the same are extracted and reproduced herein below: “COMPARATIVE CHART SHOWING ASSESMENT OF PERFORMANCE OF PETITIONER FOR THE PERIOD 2010-11, 2011-12 AND 2012-13 ASSESMENT BY THE REPORTING AUTHORITY Part- II ATTRIBUTES SSESMENT FOR PERIOD 1/4/2010 to 31/3/2011 ASSESMENT FOR PERIOD 1/4/2011 to 31/3/2012 ASSESMENT FOR PERIOD 1/4/2012 to 31/3/2013 1. 14. Accordingly, for the aforesaid purpose, the relevant portions of the same are extracted and reproduced herein below: “COMPARATIVE CHART SHOWING ASSESMENT OF PERFORMANCE OF PETITIONER FOR THE PERIOD 2010-11, 2011-12 AND 2012-13 ASSESMENT BY THE REPORTING AUTHORITY Part- II ATTRIBUTES SSESMENT FOR PERIOD 1/4/2010 to 31/3/2011 ASSESMENT FOR PERIOD 1/4/2011 to 31/3/2012 ASSESMENT FOR PERIOD 1/4/2012 to 31/3/2013 1. Name (s) and designation of Reporting Authority Sri G. C. Basumatary, IFS CF, WAC, Council Head Department, Forest, BTC, Kokrajhar Sri G. C. Basumatary, IFS CCF cum Council Head Department, Forest, BTC, Kokrajhar Sri G. C. Basumatary, IFS Addl. PCCF cum Council Head Department, Forest, BTC, Kokrajhar 2. Period of service of the incumbent under the Reporting Authority 7 years 1/4/2011 to 31/03/2012 1/4/2012 to 31/03/2013 3. State of Health Sound health Sound health Sound health 4. What is your opinions about his / her - (a) aptitude, initiative, drive and efficiency for - (i) Arrangement for work Good Good Good (ii)Execution of work Good Good Good (b) Intelligence Intelligent Intelligent Intelligent (c) Attendance, conduct and Amenability to discipline Punctual Amenable Amenable (d) Character, with particular reference to reliability and integrity There was nothing against his integrity D.P is pending (Subsequently removed vide order dated 31.03.2017) D.P is pending (Subsequently removed vide order dated 31.03.2017) (e) Knowledge of laws/rules and relevant office procedure He has necessary knowledge about laws, rules and relevant office procedure. He has necessary knowledge about laws, rules and relevant office procedure as DFO. He has necessary knowledge about laws, rules and relevant office procedure as DFO. He has necessary knowledge about laws, rules and relevant office procedure as DFO. He has necessary knowledge about laws, rules and relevant office procedure as DFO. (f) Capacity of supervision, inspection, and to create team spirit (where Applicable) Can get the work done He can get the work done He can get the work done (g) Spirit of service for and relationship With public/subordinate staff and Superior officer Maintain cordial relationship with all concerned He maintained cordial relationship with all concerned He maintained cordial relationship with all concerned (h) Physical stamina and amplitude for hard touring (where applicable) Good physical stamina for hard touring He has good physical stamina for extensive touring He has good physical stamina for extensive touring (i) General remarks, if any Sometime speaks wrong thing at wrong place and wrong time He is a Very Good Forest Officer He is a Very Good Forest Officer 5(a) Professional ability - (i) preparation of estimate & projects He has good technical knowledge He has good technical knowledge He has good technical knowledge (b) Promptness and Correctness in- (i) Design Good Very Good Very Good (ii) Accounts Punctual, regular Prompt Prompt (iii) Control of expenditure Good Good Good Part-III OPINION OF THE REVIEWING AUTHORITY 1. Name and designation of the Reviewing Authority Deputy Chief of BTC Sri G.C. Basumatary, IFS CCF cum CHD, Forest, BTC, Kokrajhar Sri G.C. Basumatary, IFS Addl. PCCF cum CHD, Forest, BTC, Kokrajhar 2. Period of service of Incumbent under the Reviewing authority 7 years 1/4/2011 to 31/3/2012 1/4/2012 to 31/3/2013 3. General opinions of the Reviewing authority He is a Good Officer He is a Good Officer He is a Good Officer 4. Graded Very Good Very Good (Upgraded vide Order dt. 31/03/17) Very Good (Upgraded vide Order dt. 31/03/17) Part-IV REMARK OF THE ACCEPTING AUTHORITY Name and designation of Accepting Authority Deputy Chief, BTC, Kokrajhar Deputy Chief, BTC, Kokrajhar Deputy Chief, BTC, Kokrajhar Remark Performance was Very Good Performance was Very Good Performance was Very Good“ 15. From the above, what is clearly evident is that the Reporting Officer who entered the aforesaid adverse remark had assessed the petitioner as "Good" for the aforesaid assessment year in respect of the arrangement of work and execution of work, and found him to be intelligent and punctual. From the above, what is clearly evident is that the Reporting Officer who entered the aforesaid adverse remark had assessed the petitioner as "Good" for the aforesaid assessment year in respect of the arrangement of work and execution of work, and found him to be intelligent and punctual. The Reporting Officer also made the observation that there was nothing against his integrity and he has the necessary knowledge of law, rules and relevant office procedures and also made the complementary observation that he can get work done, and that he maintains cordial relations with all concerned and that he has good physical stamina for hard tours and accordingly, he has also been assessed fit for promotion to the post of Indian Forest Service. 16. The aforesaid assessment made by Reporting Officer was endorsed by the Reviewing Authority by making assessment that he is a good officer and accordingly, graded him as "Very Good". 17. The Accepting Authority also did not make any remark contrary to the observations made by the Reporting Authority as well as the Accepting Authority and made the observations that the performance of the officer during the aforesaid period was "Very Good". Adjudged in that context, the aforesaid remark that "Sometimes speaks wrong thing at wrong place and wrong time" seems to be out tune with the rest of the remarks and observations and assessment of various attributes of the petitioner. 18. It has been submitted by the learned counsel for the petitioner that it is not only out of tune, but also unfair and adverse in nature, which has take away all the shine off the complimentary assessments made in his ACRs by the authorities for that particular year and also of the subsequent years. 19. It has also observed that for the subsequent years, that is, for 2011-12, the officer who was the Reporting Authority and who had made the aforesaid adverse remarks was the same Reporting Authority, in which he made similar complimentary remarks about the quality, attributes and performance of the petitioner as can be seen from above chart. 20. However, it is observed that the said adverse remarks are missing in subsequent years. It may be also noted that the Reviewing and Accepting Authorities had also graded the petitioner as "Very Good" for the aforesaid period of 2011-12. 21. 20. However, it is observed that the said adverse remarks are missing in subsequent years. It may be also noted that the Reviewing and Accepting Authorities had also graded the petitioner as "Very Good" for the aforesaid period of 2011-12. 21. In respect of the subsequent year of 2012-13, the same Reporting Officer made similar complementary remarks and observations about the performance of the petitioner as can be seen from chart above. But, the Reporting Officer did not make the aforesaid adverse remarks in the year 2011-12. The Reviewing and Accepting Authorities for the period 2012-13 again graded him as "Very Good". The Reviewing Authority for the aforesaid two years was the same officer who was the Reporting Officer. 22. From the above, it is quite evident that the aforesaid remark entered by the Reporting Officer, against which the petitioner has raised objection in this petition, certainly seems to be out of tune and certainly not consistent with the overall general assessment under various parameters of the performance of the petitioner. This remark is not only out of tune but also seems to be contrary to the overall assessment and tenor as indicated above. It is certainly a jarring note to otherwise a competent and efficient officer, which would certainly have a dampening effect on that otherwise a very good service career. 23. This Court has also noted that while making this adverse remark, which is of a very general nature, nothing has been brought on record or indicated, of any specific incident or instance which warranted making such a remark. The petitioner also was never been intimated or any such incident or comment made by the petitioner which led to making such remark by the Reporting Officer. This Court does not find any material justifying the aforesaid remark. 24. This Court is thus in agreement with the submission advanced by the learned counsel for the petitioner that this apparently adverse remark cannot stand simultaneously side by side along with other complementary remarks, given not only by the same officer for the subsequent years also, but also by the Reviewing and the Accepting Authorities. As such, this Court is also view that the aforesaid remark cannot co-exist with the other remarks and observations made and it is conspicuous by its oddity. 25. As such, this Court is also view that the aforesaid remark cannot co-exist with the other remarks and observations made and it is conspicuous by its oddity. 25. Therefore, in the midst and context of the complementary remarks, the aforesaid stand alone and incongruous remarks that "Sometimes speaks wrong thing at wrong place and wrong time" can be certainly held to be adverse in nature. If that is so, it was incumbent upon the authorities, whether Reporting, Reviewing or Accepting Authority to have communicated this remark to the petitioner before allowing it to remain in the ACR of the petitioner. 26. In this regard, the learned counsel for the petitioner has relied on the decision in Sukhdeo Vs. Commissioner Amravati Division, Amravati & Anr. (1996) 5 SCC 103 , in which the Hon'ble Supreme Court held that the assessing authority must eschew making vague remarks causing jeopardy to the service of the subordinate officer and it would be advisable that adequate opportunity ought to be given in writing to any subordinate to improve his performance before making any adverse entry. It was held in para 6 of the aforesaid judgment thereof as follows: "6. It is settled law that when the Government resorts to compulsorily retire a Government servant, the entire record of service, particularly, in the last period of service required to be closely scrutinised and the power would be reasonably exercised. In State Bank of India etc. v. Kashinath Kher & Ors. etc. [JT 1996 (2) SC 569 at 578 para 15], this Court has held that the controlling officer while writing confidential and character role report, he should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honesty and integrity so as to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the Officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the Officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected of from that high responsible officer who made the remarks. When an officer makes the remarks he must eschew of making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. It would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in waiting for improvement and yet was not availed of so that it would form part of the record. The power exercised by the controlling officer is per se illegal. The Tribunal has not considered this aspect of the matter in dismissing the petition. The appellant is entitled to reinstatement with all consequential benefits. The appeal is accordingly allowed with exemplary costs quantified at Rs. 10,000/- recoverable by the State from the officer who made the remarks." 27. To similar effect, it was observed by the Hon'ble Supreme Court in M.A. Rajasekhar Vs. State of Karnataka & Anr. (1996) 10 SCC 369 that: "5. It was found that his integrity was not doubted and his work also in all those respects was found to be satisfactory. Under those circumstances, the remark that he "does not act dispassionately when faced with dilemma" must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. Under those circumstances, the remark that he "does not act dispassionately when faced with dilemma" must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. He should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. Even when he acted in a dilemma and lacked objectivity, in such circumstances, he must be guided by the authority as to the manner in which he acted upon. Since this exercise has not been done by the respondents, it would be obvious that the above adverse remark was not consistent with law." 28. This Court is in agreement with the submission advanced by the learned counsel for the petitioner that in view of the decisions rendered by the Hon'ble Supreme Court referred to above, if there was any remark which is adverse in nature, opportunity ought to have been given to improve upon his conduct by pointing out the specific instances to correct himself, and it ought to have been communicated, and if not communicated, cannot remain in the ACR of the employee as otherwise, it will do great injustice to the employee, whose service would be adversely affected by presence of such adverse remark in the ACR. 29. It has been submitted that in fact, the presence of this remark, in the ACR certainly had an adverse influence in the minds of members of the Selection Committee, when the performance of the petitioner was assessed because of which he was not recommended for promotion to the higher post of Indian Forest Service. 30. It may be correct that the petitioner had been assessed overall as "Very Good" yet, the potential of this remark to cause damage on the service career of the petitioner remains. 30. It may be correct that the petitioner had been assessed overall as "Very Good" yet, the potential of this remark to cause damage on the service career of the petitioner remains. Presence of such an adverse remark could certainly adversely influence the mind of the members of the Selection Committee, as the members of the Selection Committee are not merely to go by the assessment/grading made in the ACRs, but they would have authority and power to examine the entire ACRs, make their own assessment and arrive at a conclusion independent of the assessment made in the ACRs, in which, event, it cannot be said that the aforesaid remark could not have played any role in the mind of the Selection Committee. In that view of the matter, the apprehension expressed by the petitioner that the aforesaid remarks could have been detrimental to the career prospects of the petitioner cannot be said to be uncalled for or unwanted. In fact it is a genuine apprehension borne by records. 31. Before proceeding further, this Court has to settle the objection raised by the learned standing counsel for the Forest Department that in absence of BTC no appropriate and effective order can be passed, as it was the BTC authorities which were solely responsible for recording of the ACRs of the petitioner which could review such entry in the ACR. and since, they have not been made a party in the present proceedings, no effective order can be issued. 32. As regards this submission, the learned counsel for the petitioner has drawn attention of this Court on the decision of the State Govt. in which the State authority upon a representation filed by the petitioner, as regards other issues relating to the ACR, had passed an order on 31.03.2017 by which certain erroneous entries made in the ACR had been corrected. 33. It has been submitted by learned counsel for the petitioner that it is the State Authority, which has the competency and authority to rectify any such mistake or error in the ACRs, as evident from the aforesaid order dated 31.03.2017 by which the authority deleted the remark that "DP is pending" as recorded in the ACRs relating to the period 2011-12 and 2012-13 of the petitioner, as no department proceeding was pending against the officer. 34. Similar findings were also given by the State Govt. 34. Similar findings were also given by the State Govt. as regards other issues raised by the petitioner regarding upgradation of assessment in the ACRs of the petitioner in the aforesaid order dated 31.03.2017. 35. Accordingly, it has been submitted that the State Govt. has the competency and the authority to correct any error in the ACR. If that is so, the State authority would have the competency and authority to expunge the adverse remark in the ACR which has not been communicated to the petitioner. 36. This Court has gone through the order dated 31.03.2017 issued by the State Govt. By the aforesaid order certain erroneous entries made in the ACRs of the petitioner were rectified by the authority and certain gradings were also upgraded, which would certainly indicate that the State authority can also expunge this adverse remark in the ACR of the petitioner. 37. Accordingly, though the BTC authorities have not been impleaded as party respondents in the present proceeding, the same would not come in the way of this Court to issue directions to the State respondents to do the needful in expunging the aforesaid adverse remark recorded in the ACR of the petitioner. 38. As mentioned above, the adverse remark in the ACR ought to have been communicated and if not communicated, it would have no validity and cannot be acted upon, in which event, it ought to be expunged by the authorities concerned as the same cannot be allowed to remain in the ACR of the petitioner. 39. In the present case even if the BTC authorities could also have expunged the remark, the State authorities are also not incompetent and without jurisdiction to do same, for the reasons discussed above. 40. As discussed above, whenever any such issue is raised about entry of any adverse remark in the ACR, the authority would be under an obligation to communicate the same and pass appropriate orders either for expunging or for retaining the same. 41. 40. As discussed above, whenever any such issue is raised about entry of any adverse remark in the ACR, the authority would be under an obligation to communicate the same and pass appropriate orders either for expunging or for retaining the same. 41. In the present case, the matter relates to the year 2010-11, and now 8 (eight) years have passed and considering the factual position as narrated above, this Court is of the view that instead of remanding the matter to the authorities concerned to examine the same whether to retain or expunge the aforesaid adverse remark from the ACR of the petitioner, considering the overall assessments and remarks made by the authorities as referred to above, which this Court has found the same to be totally inconsistent with the rest of the assessments in the ACR, this Court is of the view that it would merely prolong the agony and distress which the petitioner has already undergone through, by clouding the prospects of being recommended for promotion to the higher post of Indian Forest Services, this Court itself would undertake the task of expunging the said adverse remark, which does not deserve to remain in the ACR of the petitioner. 42. Accordingly, for the reasons discussed above, this petition is allowed. The impugned remark against the petitioner, i.e., "Sometimes speaks wrong thing at wrong place and wrong time" shall stand expunged from the ACR of the petitioner for the period 01.04.2010 to 31.03.2011. 43. Learned counsel for the petitioner has also submitted that the same Reporting Authority who had observed the petitioner to be a "Very Good forest officer" in his general remark in respect of the ACR for the period 1.4.2011 to 31.3.2012 and also in the subsequent ACR of 1.4.2012 to 31.3.2013, has while acting as the Reviewing Authority graded the petitioner merely as "Good" which is also inconsistent with his own assessment as reporting officer in connection with which the petitioner has already submitted representation 7.4.2018. This Court is of the view that the aforesaid plea of the petitioner would necessitate reassessment, which can be appropriately done by the concerned authority and not by the Court. This Court is of the view that the aforesaid plea of the petitioner would necessitate reassessment, which can be appropriately done by the concerned authority and not by the Court. Accordingly, it is directed that the authorities will examine the said representations and dispose of the same by issuing a speaking order by taking into consideration the assessment made of the various attributes and qualities of the petitioner for the aforesaid period, which exercise shall be undertaken within a period of one month from the date of receipt of a certified copy of this order. 44. The present petition is accordingly allowed with the above observations and directions.