TMI Blog2007 (2) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 12-2-2007 - Dr. AR. Lakshmanan and Altamas Kabir, JJ. [Judgment per : AR. Lakshmanan, J.]. - Leave granted. 2. The Union of India through Secretary, Department of Revenue, Ministry of Finance, New Delhi is the first appellant in this appeal. The second appellant is the Department of Personnel and Training through its Secretary, Ministry of Personnel Pension, New Delhi. The first respondent is the contesting respondent. Respondent Nos. 2-5 and the first respondent joined the Indian Customs and Central Excise Service as a Grade A Officer on probation and was promoted as Assistant Collector of Central Excise after selection by the UPSC. Respondent No. 1 and other respondents were confirmed in Group A service. In the order, the proforma respondents were placed higher in order of seniority. Thereupon respondent No. 1 was promoted as Deputy Collector of Central Excise on an ad hoc basis in the year 1983 and the said appointment was regularized as Deputy Collector of Customs and Central Excise, vide order dated 16-7-1985. The Government of India, Ministry of Finance issued an Office Order No. 187 of 1997 for the ad hoc promotion of respondent No. 1 and proforma respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grade of Commissioner. The DPC made its own assessment on the basis of the entries in the ACRs and overall grading of the reviewing/reporting officers was of no consequence. (iv) It is not for an individual officer to claim that his case is outstanding or otherwise as has been claimed by Shri Goel in his representation. It is for the DPC to make assessment on the officer after going through his service records. The mere grant of presidential Award cannot entitle an Officer to claim that he should be awarded outstanding grading by the DPC. 5. Respondent No. 1 filed OA No. 141 of 2000 before the Central Administrative Tribunal, Principal Bench, New Delhi with the following prayers :- (i) To direct that, in the grade of Commissioner, the seniority of the applicant over respondents 3 to 6 be maintained, and, therefore, to declare the impugned Office order No. 11 of 1999 illegal to the extent it places respondents 2 to 5 above the applicant, and to give correct placement of the applicant at Sl. No. 1 of the list contained in the said order, (ii) In the alternative, to set/quash the promotions of respondents 3 to 6 insofar as they have been promoted and given seniority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm him of the change in the form of an advice. The rate must be given appropriate guidance and opportunity as and when his weakness is noticed. If taking that entry into consideration seniority is not granted to the rate, it has an element of adverseness as far as his service profile is concerned. Therefore, it is well settled that although the Court cannot moderate the appraisal and grading given by an officer while exercising the power of judicial review but as the entries for the period indicated above had an element of adverse reflection and for that purpose his seniority has been downgraded, the ACRs ought to have been communicated to the petitioner, which has not been done in the instant case, therefore, reliance placed by the Tribunal on the decision of Punjab and Haryana High Court in Union of India Ors v. M.S. Preet and Anr. In Civil Writ Petition No. 13024/CAT/2002 rendered on 22-11-2002 would not come into play. We set aside and quash the order of the Tribunal and the ACRs for the year 1992-1993, 1993-1994 and 1994-1995 and remand the case back to the respondent to reconsider afresh within a period of three months the seniority of the petitioner in terms of the above ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Om Tiwari, respondent No. 3 was shown at S. No. 3, Shri C. Sathpathy, respondent No. 4 was shown at S. No. 12 and Shri Iype Mathew, respondent No. 5 was shown at S. No. 14 and respondent No. 1 was promoted as Deputy Collector of Central Excise on ad hoc basis vide Order No. 149/83 dated 12-8-1983 and was appointed on regular basis as Deputy Collector of Customs and Central Excise vide notification dated 16-7-1985. Thereupon, the Department of Revenue, Ministry of Finance, Government of India issued a civil list of Indian Revenue Services and in that list also respondent No. 1 was shown as senior to respondent Nos. 2-5 and that in the year 1991, respondent No. 1 was decorated with President's award for specially distinguished services after considering his achievements for the past 15 years. 15. Mr. Rajiv Dutta further submitted that right from the day of initial entry stage to the date of ad hoc promotion to the post of Commissioner, respondent No. 1 was shown senior to respondent Nos. 2-5. He further submitted that respondent No. l has been an upright, hardworking and honest officer and has been rated as outstanding from 1989-1990 to 1996-1997- by the reporting officers. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riting the confidential report is two fold i.e. (i) to give an opportunity to the officer to remove inefficiency and to inculcate discipline; (ii) It seeks to serve improvement of quality and excellence and efficiency of public service. The officers while writing confidential reports should show objectivity, impartiality and fair assessment without any prejudice whatever with the highest sense of responsibility to inculcate in the officer devotion to duty, honesty and integrity so as to improve excellence of the individual officers. 18. Mr. Rajiv Dutta also cited the judgment of this Court in State of U.P. v. Yamuna Shankar Mishra - AIR 1997 SC 3671 wherein this Court held that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51 A(j) of the Constitution of India enjoins upon every citizen the primary duty to constantly endeavour of prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised of the downgrading, thereby rendering the ACRs defective which could not be considered by the DPC. 20. Arguing further, learned senior counsel, submitted that if the downgraded entry is considered to be positive still it may adversely affect the rating as it happened in the case of respondent No. 1 and that the DPC considered only ACRs from 1989-1990 to 1996-1997 in respect of promotions to the post of Commissioner to Central Excise. Apart from ACRs, the DPC had no other material with them. 21. It was submitted further that the DPC had also fallen into grave error in ignoring the recommendations of the 5th Pay Commission followed by the Government of India to the effect that in the matter of promotion inter se seniority fixed at the time of initial enty stage should not be disturbed. In the facts and circumstances of the case, learned senior counsel submitted that the impugned judgment of the High Court which is clearly based upon the law as laid down by this Court in a number of cases is unassailable and, therefore, the civil appeal has no merits. 22. We have carefully considered the rival submissions with reference to the records placed and material placed before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinarily be no interference by the courts of law in the proceedings and recommendations of the DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is mis-grading of confidential reports. In the present case, the DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. The DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent No. 1 did fulfill the bench mark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service, Customs and Central Excise Service. 27. It was also argued by the learned senior counsel appearing for respondent No. 1 that the entries for the period had an element of adverse reflection and for that purpose the seniority of respondent No. 1 was downgraded and, therefore, the ACR ought to have been communicated to respondent No. 1. In our opinion, the observations of the High Court are wholly unjustified inasmuch as the post of Commissioner of Customs and Central Excise is a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessfully challenged the selection of respondent No. 4 before the CAT on the ground that the DPC was not justified in grading her merely as very good as in the ACRs for two of the relevant three years the departmental authorities had graded her as outstanding and for the third year as very good while they had graded respondent No. 4 as very good in all the three ACRs. The CAT while refusing relief to the appellant on the ground of want of jurisdiction to scrutinize the recommendations of the DPC, this Court perused the confidential procedure followed by the DPCs in the Union Public Service Commission for giving overall grading, including that of outstanding'' to an officer. Thereafter, refusing to interfere with the selection of respondent No. 4 by the DPC but setting aside the said observation of the CAT, this Court held as under : Having regard to the confidential procedure which is followed by the Union Public Service Commission, it is not possible to hold that the decision of the DPC in grading the appellant as very good instead of outstanding was arbitrary. No ground is, therefore, made out for interference with the selection of respondent 4 by the DPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the I.P.S. Cadre was under consideration. Apart from the above, at no stage of the proceedings, either before the Tribunal or the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the comparative merits of the respective candidates. While concluding his submissions, Mr. Rao had pointed out that the direction given by the High Court to the appellant to hold a Review Departmental Promotion Committee was also erroneous since the Regulations provided for selection to be made not by a Departmental Promotion Committee but by a Selection Committee constituted as per the Regulations. 13. Although, on behalf of the respondents it has been urged that there was no bar which precluded the Tribunal from looking into the original ACRs of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction of the Selection Committee in preparing the Select List. 14. From the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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