Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 857 (RAJ)

G. S. Rathore v. Union of India

2021-04-15

MANOJ KUMAR VYAS, SABINA

body2021
JUDGMENT : Manoj Kumar Vyas, J. 1. These writ petitions have been filed against the order dated 18.04.2019 passed by the Central Administrative Tribunal Bench at Jaipur, whereby the T.A.(Transferred Application) No. 19/2011, T.A.(Transferred Application) No. 18/2011 and O.A. (Original Application) No. 162/2012, were dismissed. 2. These three cases involved the same parties and similar issues relating to expunging of adverse remarks in Annual Performance Appraisal Report/Annual Confidential Reports, (APAR/ACRs) of the applicant-petitioner for the years 2002-03, 2003-04 and 2004-05 respectively. 3. It was the case of the petitioner that adverse remarks were made in the APAR/ACRs of the petitioner for the reporting years in question. The adverse remarks in question were as under:- "TA No. 19/2011:- Task Relevant Knowledge "Task related knowledge is not adequate and he does not keep himself updated with latest instructions, though he has potential to do so." Quality of output "He did not sort out the problems amicably and his tendency is to put blame on others. This resulted non-execution of various works in time and some of the works could not be started." TA No. 18/2011:- Task Relevant Knowledge "The officer has satisfactory knowledge of functions and related instructions but lacks application." Quality of output "The officer can provide quality performance but lacks in output due to his negative approach and poor support base from his subordinates, colleagues and other agencies involved in the system. The adversely effects his standard of work, objectives and excellence in his work." Attributes: 1. Attitude towards work “Average” 2. Decision-Making ability “Average” 4. Ability to guide, inspire and motivate “Average” 6. Inter-personal relations, team work and coordinating ability “Average” 7. (ii) Approach to customers “Average” (iv) Human Resource Development “Average” (vi) Environment Improvement “Average” General assessment: "He does not obey to his seniors and there is no effect to counselling on him". Any adverse remarks including penalties imposed or warnings/displeasures communicated: "He was issued displeasure letters on 09.12.03, 23.12.03 and 24.12.03. OA No. 162/2012:- Quality of output "Good" Attributes: General assessment: "Under given circumstances his performance has been satisfactory. He uses Rajbhasa for most of his work". Remarks of the Reviewing Authority: "An average officer who has a potential to do better"." 4. The petitioner represented against the adverse remarks. These representations were rejected by the respondents vide letter/orders dated 20.09.2003, 23.09.2005 and 29.02.2012. He uses Rajbhasa for most of his work". Remarks of the Reviewing Authority: "An average officer who has a potential to do better"." 4. The petitioner represented against the adverse remarks. These representations were rejected by the respondents vide letter/orders dated 20.09.2003, 23.09.2005 and 29.02.2012. The petitioner had approached the Tribunal for seeking the relief that these ACRs be declared as illegal and be quashed/set aside with consequential benefits, including promotion. The applicant-petitioner also prayed that the ACRs for the years in question, be graded as outstanding. 5. The learned Tribunal, after hearing both the parties dismissed the two TAs and one OA mentioned above. Hence, the petitioner has preferred the petitions with the following prayers:- "It is, therefore, prayed that the present writ petition filed by the petitioner may kindly be allowed and the order dated 18.04.2019 may kindly be quashed and set aside. The original application made by the petitioner may kindly be allowed. The adverse remarks entered in the APAR of the petitioner may kindly be expunged. The respondents may be directed to grade the petitioner outstanding in the ACR for the year ending 31.03.2004. Any other order or direction which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner. Cost of this writ petition may also be awarded in favour of the petitioner." 6. The petitioner had challenged the propriety, legality and constitutional validity of the impugned ACRs, inter alia, on the following grounds:- (i) The principles of writing of ACR were violated by the Appraisers as targets/goals were fixed arbitrarily and without consulting the Applicant. (ii) There was no material or data on record to support these adverse remarks. (iii) The remarks in the ACRs were made with bias and were totally unfounded and these were engineered for spoiling the record of the applicant so as to demoralize him. (iv) The adverse remarks are motivated and written with colourable exercise of powers. (v) The principles of natural justice were not followed for consideration of representation against the adverse remarks. (vi) The representations were rejected without specifying the reasons for such rejection. (vii) The orders rejecting the representations of the petitioner were non-speaking, hence prejudice was caused to the petitioner. 7. (v) The principles of natural justice were not followed for consideration of representation against the adverse remarks. (vi) The representations were rejected without specifying the reasons for such rejection. (vii) The orders rejecting the representations of the petitioner were non-speaking, hence prejudice was caused to the petitioner. 7. In reply, the respondents contended that applicant was habitual of making false and incorrect allegations against the senior officers as well as complaints against the contractors, instead of performing his own duties properly. Adverse remarks in the APAR/ACRs were based on collective assessment of the overall performance of the applicant. The procedure prescribed for writing and finalising of APAR/ACRs was strictly followed. The remarks were not vitiated and their correctness cannot be gone into by the civil courts. It was also averred that during the reporting years in question, the respondents remained in regular touch with the appellant, who was advised to improve his functioning but this was of no avail. The representations made by the applicant against the adverse remarks were duly considered by the competent authority before being rejected. There was no necessity to record reasons for rejecting the representations. 8. After going through the record as well as the arguments advanced by both the parties, learned Tribunal came to the conclusion that in these cases the prescribed procedure with regard to conveying adverse remarks and considering representations made against the same had been substantively followed. Since the applicant had not specifically sought the quashing/setting aside of specific letters or orders conveying the rejection of his representations for not citing detailed reasons when seeking relief, there remained little force in his belated contentions at the argument stage that such reasons were required to be recorded in explicit terms before rejecting the representations. The learned Tribunal had also relied upon the judgment of Hon'ble Supreme Court in the case of Union of India & Others v. E.G. Nambudiri, AIR 1991 SC 1216 , wherein the apex court has held as under:- "8. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See: Regina v. Gaming Board for Great Britain ex p. Benaim and Khaida [1990] 2 QB 417 at p. 431. Though the principles of natural justice do not require reasons for decision, in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated. 9. There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the court. The superior authority while considering the representation of a Government servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Government servant. In the instant case adverse remarks as contained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent's representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation contained in Item No. 5 "that nothing adverse has come to notice regarding your integrity" is not adverse to the respondent's work and conduct. These remarks are neutral in nature, and they do not adversely comment upon the respondent's work, conduct or character, though they are not commendatory in nature. As regards the remarks at Serial No. 6, they are self-explanatory, which show that in spite of oral and written warnings the respondent did not improve. If the superior authority was not satisfied with the explanation of the respondent as contained in his representation, what reasons could be stated, except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detail judgment or order giving details of the warnings or the material on which he formed opinion. 10. There is no dispute that there is no rule or administrative order for recording reasons is rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same." 9. We have heard both the parties and perused the record on the file carefully. 10. The appellant-petitioner has not placed on record any material to suggest that the prescribed procedure with regard to conveying adverse remarks and considering representations made against the same, had not been followed in these cases. It is also revealed that the petitioner was given opportunities by way of oral and written advice as well as communication of displeasure on several occasions in order to encourage him to improve his working. Thus, in these cases, proper notice/advice was given to the appellant so that he could improve his working and when this also did not result in any improvement, the remarks in question were made in the APAR/ACRs of the petitioner. Thus, the petitioner was properly cautioned before the adverse remarks were entered in his ACRs of the years in question. The representations of the petitioner against the adverse remarks were considered by the respondents and after proper consideration, these representations against the adverse remarks were rejected. 11. The learned counsel for the appellant has also submitted that the orders by which the representations against the adverse remarks were rejected, were non-speaking and did not disclose the reasons for such rejection, but in view of the law laid down by Hon'ble Supreme Court in E.G. Nambudiri's case (supra), it cannot be held that the order communicating the rejection of the representations was rendered illegal merely on the ground of absence of reasons. 12. 12. Thus, in view of above discussion, we are of the considered opinion that the impugned order dated 18.04.2019 passed by learned Tribunal is just and proper, and no ground for interference is made out. 13. The writ petitions being devoid of any merit, are liable to be dismissed. 14. Dismissed.