Reviewing Officer Comments Contrary To Entries In ACR, Delhi High Court Directs Reassessment Of Grades
A division Bench of the Delhi High Court comprising Justices C Hari Shankar and Sudhir Kumar Jain set aside the Order of a Single Judge Bench wherein a Petition seeking to change the Appellant's Grade from '3' to '1' was dismissed. The Court directed the Respondents to reassess the overall performance of the Appellant in accordance with law considering the entries which specifically mentioned that the Appellant had not only met but had also exceeded certain targets, which was contrary to the comment made by the Reviewing Officer, based on which, the Appellant's Grade was retained at '3'.
Background
The Appellant was an employee in Hindustan Petroleum Corporation Ltd. (Respondents). For the years 1995 to 2015, his Annual Confidential Reports were not communicated to him. Therefore, he approached the Single Bench of the High Court in 2019. Resultantly, the Respondents disclosed the ACRs to him but he was aggrieved by the grading of “4” granted to him for the year 1996-1997 and the grading of “3” for the year 2018-2019. He made a representation against these gradings which were rejected by the Respondent by orders dated 11 January 2020 and 27 January 2020.
Later, challenging the Orders, the Appellant approached the Court by filing another Writ Petition challenging the ACR grading of “3” granted to him for the year 2018-2019 and the orders rejecting his representation. The Appellant also sought upgradation of his grading, for 2018-2019, to “1”. Moreover, seeking constitution of review Departmental Promotion Committees to consider him for promotion to the next Salary Grade C w.e.f. 1998 and 2004 respectively, the Appellant sought modification of the Promotion List dated 19 June 2020 so as to include him in the list. Before the Single Judge, the Counsel for the Appellant restricted the challenge to the Performance Rating of '3' for the year 2018-19.
The Counsel for the Appellant stated that the Appellant had met all the targets and thus could not be placed in Grade 3. Criticising the observation of the Reporting/Reviewing Officer, the Counsel submitted that it could not be treated as 'Good'. It was contended that the Authorities did not even conform with the observations made in the ACR and that there was no reason for the Authorities to reject the appeal. Additionally, the Counsel intimated the Court that the Authorities had also transferred the Appellant to a distant place like Mysore after he filed the Petition.
On the other hand, the Counsel for the Respondents submitted that in certain key areas, the Appellant did not meet the targets. It was submitted that the officer was not able to complete the project of revamping the ETP owing to lack of involvement and initiatives resulting in the project being delayed for a year. The Counsel referred to an order rejecting the appeal of the petitioner against his performance rating, wherein the Authority, after due application of mind, had rejected the appeal and retained his grade as '3'. The order was passed in response to a MERC grievance filed by the Appellant. The counter-signing authority had critically reviewed the MERC recommendation and after detailed review and deliberations on the merit of the case, the Appellant's Grade was "retained" as 3, considering the performance of officers within the workgroup.
Regarding the transfer, it was submitted that the Petitioner was transferred due to business exigencies of the Corporation and that the Appellant was merely using the same to his advantage to establish it as a malicious exercise by the Corporation.
The Single Judge observed in connection to the performance rating of the petitioner as '3' that the system for assessing performance of an Officer was foolproof and while deciding the representation of the Appellant, the Respondents had applied their mind. The Single Judge further observed that no justification was provided by the Counsel for the Appellant in response to the question as to whether the ETP project was completed on time or not. Noting that the scope of interference in the cases of ACR was very limited, the Court relied on the judgment of a Division Bench in the case of Navin Kumar Garg v Union of India, wherein it was held,
'The representation has been considered and a speaking order has been passed. The competent authority has decided to maintain the original gradings given to the petitioner. There is no material before us and there can be no material before us which would enable us to take a different view insofar as the gradings are concerned. As regards the procedure to be adopted after the passing of the order of the Tribunal, we are clear that the competent authority, having considered the representation in detail and having passed a speaking order, has complied with the same.'
Making these observations, the Petition was dismissed.
Aggrieved by the same, the Appellant approached the Division Bench of the Court.
Findings of the Court:
The Court held that there was substance in the challenge to the grading of “3” awarded to the appellant for the year 2018-2019. The Bench made a reference to the contention of the Counsel for Respondents stating that the Officer had not met some targets under 'Key Areas'. Perusing the ACRs, the Court held that, as per the remarks of the Reporting Officer for the year 2018-2019, the appellant had either met, or exceeded, every target set for him during the said year, under every head.
The Court emphasized the final remark that said, 'Exceeded all set targets' and the “Overall Feedback of the Reviewing Officer” also read,
“Officer is very sincere and responsible and hard working. Maintains good interpersonal relationship. Keeps cool in tense situation. Already got good exposure in the field of safety. Should be given higher responsibility in other fields in LPG or any other SBU.”
Noting that despite the limited powers of the Court in terms of evaluation of the appellant, the Court held that the entries determined 'considerable calibre' of the Officer.
On further perusal of “Part B” of the “Performance & Development Review” of the appellant for the year 2018-2019, the Court held that the same was contrary to all the entries and “Overall Feedback” by the Reporting Officer. It was mentioned in the entries that the appellant had not only met, but in fact often exceeded, the ETP targets.
Dissatisfied with the comment- “Key Areas where performance was not in line with targets”, by the Reviewing Officer, the Court referred to the time-honoured principle, enunciated by Krishna Iyer J. in Mohinder Singh Gill v Chief Election Commissioner, that an order had to speak for itself. The entries by the Reviewing Officers in the appellant's ACRs had to be justified with adequate reasoning which was not done in the case of the Appellant by the Reviewing Officer, the Court held.
The Court observed that the comment was seriously damaging to the appellant especially because he was uniformly graded as an “Excellent officer” in the entries made in the ACRs for the year 2018-2019. Additionally, the Reviewing Officer had also made the final recommendations to give the Appellant higher responsibility based on the entries.
Making these observations, the Court held that the comment made contrary to the entries in the ACR concerning the performance of the Officer, could not sustain the scrutiny of law. It quashed and set aside the grading of “3” granted to the appellant for the year 2018-2019.
Ultimately, the Court directed the Respondents to assign a fresh grading to the appellant, within a period of four weeks.
Accordingly, the Petition was disposed of.
Case Title: SUBRAT KUMAR PANIGRAHI versus HINDUSTAN PETROLEUM CORPORATION LIMITED AND ORS
Counsel for Appellant: Mr. Sandeep Kumar Mahapatra and Mr. Tribhuvan, Advs.
Counsel for Respondents: Mr. Pavan Narang, Ms. Priyanka Das, Ms. Nishat Nafisa Ahmed, Ms. Aishwarya Chhabra, Mr. Himanshu Sethi and Ms. Abhimohini, Advs.