HC Erred In Setting Aside CM's Remarks Against IAS Officer's PAR : Supreme Court Allows Haryana Govt Appeal Against Ashok Khemka

The Supreme Court today allowed Haryana government's challenge to a Punjab and Haryana High Court order, which set aside Chief Minister ML Khattar's (Accepting Authority's) remarks and overall grade regarding senior IAS Officer Ashok Khemka's Performance Appraisal Report (PAR).

"We are of the opinion that the learned Division Bench of the High Court erred in law", said the Bench of Justices Vikram Nath and Satish Chandra Sharma. It however directed the Accepting Authority to decide Khemka's representation under Rule 9(7B) of the All India Services (PAR) Rules within a period of 60 days, after which he shall be at liberty to take recourse to remedies available under law.

After pronouncing the judgment, Justice Sharma enquired if Advocate Shreenath A Khemka (who appeared for IAS Officer Khemka) was present in Court. Although the answer was given in the negative, the Judge expressed that Khemka "argued very well".

It is worthwhile to mention that the initial phase of the proceedings saw respondent No.1-Khemka being disallowed by the Supreme Court Registry from filing reply to the present petition in-person. Apparently, he had to engage an AoR "under duress" and even wrote to then CJI Bobde seeking clarification regarding the Supreme Court Rules, 2013.

Background

To put the facts briefly, Khemka is an Indian Administrative Services Officer of the 1991 batch. When he was engaged as Principal Secretary to the Government of Haryana in the Science and Technology Department (between 08.04.2016 and 31.03.2017), the Accepting Authority made the following remarks in his Performance Appraisal Report (PAR) -

“The Reviewing Authority has differed with the Reporting Authority but not given any reason for the same. At best, his comment that the officer “has shown excellent achievements under severe constraints” contained in para 3 of Section IV can be so construed. But this is not substantiated since neither the Reviewing Authority nor the officer himself has specified any constraint what to talk of ''severe constraints''. I, therefore, think that the report of the Reviewing Authority is slightly exaggerated.”

Following the same, Khemka sent comments under Rule 9(2) of the AIS (PAR) Rules, but, no response was received. He further made a representation for quashing of Accepting Authority's remarks & overall grade and restoration of those given by the Reviewing Authority, but no action was taken.

In 2018, Khemka moved the Central Administrative Tribunal, Chandigarh, alleging that the Accepting Authority's remarks were time-barred and since his representation had not been decided, the views of the Reviewing Authority had become final. He prayed that the subject remarks and the overall grade recorded by the Accepting Authority be expunged, and also sought restoration of the overall grade of 9.92 recorded by the Reviewing Authority.

The Tribunal rejected this plea, being of the view that the Accepting Authority recorded its appraisal within time period prescribed under Rule 5 (1) of the 2007 Rules and para 9.4 of the General Guidelines. Against the same, Khemka approached the Punjab and Haryana High Court, which set aside the remarks and overall grade given by the Accepting Authority.

High Court Observations

Vide the impugned order, the High Court restored the opinion and overall grade of 9.92 given by the Reviewing Authority. It observed that though the Accepting Authority recorded that Reviewing Authority differed with the Reporting Authority without giving reason, the same was not correct, as the Reviewing Authority gave brief reasoning recording that the petitioner was well known in the country for effective professional integrity under very difficult circumstances.

In connection with the issue over time frame for recording PAR, the High Court said that the same could be varied as the Rules did not indicate a watertight compartment. On merits, however, the Accepting Authority's opinion was found liable to be interfered with.

In arriving at a decision, the High Court noted that even the Accepting Authority did not make any adverse remarks regarding the integrity of Khemka. Making reference to "severe constraints" mentioned in the Accepting Authority's opinion, it remarked that the constraints in which an honest and upright officer works under the political leadership are well known. As professional integrity in the administrative system was depleting very fast, integrity of a person like Khemka had to be protected.

To quote the High Court, "...an officer with such integrity many time has to face adverse circumstances which have been mentioned by the Reviewing Authority as 'constraints'. Since number of such officers whose integrity is beyond doubt and who have professional integrity of higher standard is depleting very fast, therefore, they need protection from being damaged by recording adverse remarks against the record."

Aggrieved by the High Court order, the Haryana government filed the present case. The appeal has now been allowed.

Supreme Court Observations

After going through the material, the top Court concluded that the Accepting Authority populated its remarks and awarded an overall grade to Khemka after a delay of 184 days, in contravention of the timelines prescribed under the Schedule in view of Rule 5(1) of the PAR Rules. However, a contravention of the said timelines neither rendered the underlying PAR invalid, nor was met with any identified immediate consequence.

Distinguishing between the effects of contravention of timelines prescribed under the Schedule vis-a-vis those under Rules 5(1) of the PAR Rules, the court noted that the Accepting Authority met the timelines prescribed under Rule 5(1). As such, it refused to expunge the remarks made by the Accepting Authority.

"Accordingly, in view of the compliance with mandatory timelines prescribed under the PAR Rules we find no reason to expunge the remarks and overall grades awarded to Respondent No. 1 by the Accepting Authority on the PAR on account of a contravention of the timelines prescribed under the Schedule."

A second issue considered by the Court was whether the High Court ought to have interfered with the Tribunal's order in exercise of jurisdiction under Article 226. In this context, Khemka's counsels had relied on Dev Dutt v. Union of India and urged that prejudice had been caused to him. But, the same did not find favor with the Court, as Khemka was awarded an overall grade of 9, which formed a part of the 'outstanding' grade (the highest category awarded to an IAS officer).

"...in our opinion there can be no qualm that the said overall grade is more than sufficient for the purposes of empanelment / promotion vis-à-vis Respondent No. 1. Thus, the reliance placed on Dev Dutt (Supra) by Respondent No. 1 is misplaced", it said.

The Bench further reiterated the principle of judicial restraint and interference qua administrative decisions, involving specialized expertise in the absence of any mala-fide and/or prejudice.

It remarked that in evaluating Khemka's competency by contrasting the remarks and overall grades of three authorities, the High Court entered into a specialized domain without the requisite domain expertise and administrative experience to conduct such evaluation, particularly when the Accepting Authority was yet to pronounce its decision qua Khemka's representation.

"...in our considered view, the process of evaluation of an IAS officer, more so a senior IAS officer entails a depth of expertise, rigorous and robust understanding of the evaluation matrix coupled with nuanced understanding of the proficiency required to be at the forefront of the bureaucracy. This administrative oversight ought to have been left to the executive on account of it possessing the requisite expertise and mandate for the said task".

In these terms, the appeal was allowed.

Appearance: Senior Advocate Mukul Rohtagi; Snr AAGs Lokesh Sinhal and Alok Sangwan; AAG Dr. Hemant Gupta; AoRs Samar Vijay Singh and Ambhoj Kumar Sinha; Advocates Nikunj Gupta, Sumit Kumar Sharma, Rajat Sangwan, Vaibhav Yadav, Shivang Jain, Payal Gupta, Nitikaa Guptha, Keshav Mittal, Sabarni Som, Fateh Singh, Shreenath A. Khemka, and Ganesh A. Khemka

Case Title: The State of Haryana v. Ashok Khemka and Anr., SLP(C) No. 13972/2019

Citation : 2024 LiveLaw (SC) 220

Click here to read the judgment 

(The initial version of the report, which was based on oral pronouncement, mistakenly said that the State's appeal was dismissed. It has now been amended to rectify the error. The error is deeply regretted.)