Jaydeep D. Tatmia vs The Comptroller & Auditor General ...

on 11 March, 2014

Central Administrative Tribunal - Delhi

Jaydeep D. Tatmia vs The Comptroller & Auditor General ... on 11 March, 2014

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH
O.A. No.2889/2013
New Delhi, this the 11th day of March, 2014

HON BLE SHRI G. GEORGE PARACKEN, MEMBER (J)

HON BLE SHRI P.K. BASU, MEMBER (A)

Jaydeep D. Tatmia
Residing at V-12, A.G. Colony,
Bajaj Nagar,
Jaipur-302015

....Applicant

(Through Ms. Haripriya Padmanabhan with Sh.Vikramaditya, Advocates)

Versus
1.
The Comptroller & Auditor General of India
Pkt. No.9, Deendayal Upadhyay Marg
At New Secretariat
New Delhi-110024.
2.

Union of India,
Through its Secretary,
Department of Expenditure,
Ministry of Finance,
North Block,
New Delhi-110001 .Respondents
By Advocate: Shri Gaurang Kanth, Advocate)
ORDER

Mr. P.K. Basu, Member (A):

The applicant is an officer of 1996 batch of the Indian Audit and Accounts Service. He received his
due promotions in the Junior Time Scale, Senior Time Scale and Junior Administrative Grade upto
2005. In the period 31.10.2007 to 31.03.2008, his reporting officer was Mr. P.K. Tiwari. Mr. Tiwari
rated the applicant as `outstanding for the period 31.10.2007 to 31.03.2008. However, the
applicant received a communication from the respondents seeking representation against adverse
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Jaydeep D. Tatmia vs The Comptroller & Auditor General ... on 11 March, 2014

entries, in his Annual Performance Assessment Report (APAR) for the period 1.04.2008 to
31.03.2009. In the said APAR, the applicant was graded as only `good by the reporting officer, Mr.
P.K. Tiwari. The applicant made his representation against this. Again he was communicated that
his APAR for the period 1.04.2009 to 31.08.2009 was graded as `good by the reporting officer Mr.
Tiwari but the reviewing authority had changed this grading to `very good , recording that the
grading has been very strict on different aspects. After 18 months of his representation against the
adverse entries made in his APAR of 2008-09, the applicant was sent order dated 7.01.2011 by the
Deputy Comptroller and Auditor General (Dy. CAG), who decided to retain the overall grading of the
applicant as `good . However, the remark on integrity was modified to beyond doubt and some
remarks were decided to be expunged and some retained. The remarks were retained on the basis of
the responses of the reporting officer to the representation of the applicant, copy of which was not
given to the applicant before the final decision on his appeal. However, the applicant could obtain a
copy of the comments of the reporting officer pursuant to an RTI inquiry. An appeal was preferred
by the applicant against the order of the competent authority for the APAR of 2008-09 and
ultimately the Comptroller and Auditor General of India (CAG) vide letter dated 1.12.2011 informed
the applicant that the appeal was not maintainable. Aggrieved by the CAG order, the applicant
submitted a Presidential Memorial.
2. The grievance of the applicant is that the respondents promoted many persons who were on the
same level of seniority as the applicant as well as those junior to him to the Senior Administrative
Grade - I (SAG-I) but the applicant was not promoted along with his peers. On 19.07.2012, the
Ministry of Finance informed that the original representation of the applicant should have been
disposed of by the CAG and not the Dy.CAG. Therefore the competent authority (CAG) passed an
order but decided to retain the grading of `good and remarks in the APAR of 2008-09. The order
of the competent authority dated 3.01.2013 was communicated to the applicant. The competent
authority reasoned its order by saying that achievements of targets may not be the sole criteria in
judging the overall performance of the officer. The manner in which the targets were achieved was
also to be taken into consideration. However, the applicant alleges that various other issues raised
by him were not dealt with in this order. The applicant submits that his APAR from 2001 to 2012
would show that he has received the grading of `outstanding in 8 out of 14 APARs. In remaining 6,
only two were `good and the remaining four were very good .
3. Heard both the parties.
4. The applicant alleges that due to some difference of opinion between him and Mr. P.K. Tiwari
over disciplinary proceedings against one Mr.V.K. Rathod, Sr. Accountant, Mr. Tiwari, as reporting
officer, has for malafide intentions graded him `good with several disparaging remarks. It is
argued that because of Mr. Tiwari giving below bench mark grading and the adverse remarks, the
applicant has been deprived of his promotion despite having unblemished and clean record since
the applicant joined and even beyond 2008-09.
5. The applicant s counsel further argued that when the reporting officer submitted the APAR along
with his remarks to the reviewing authority (Ms. Bharti Prasad), the reviewing authority did not
accept the remarks of the reporting officer and, in fact, recorded that the grading on various aspects
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has been strict and directed the reporting officer to communicate the whole report to the applicant
for its comments before it is reviewed by her. It may be worthwhile to see the remarks of Ms. Bharti
Prasad, which were as follows:I have quickly gone through Shri Tatamiya s representation sent by his letter
No.Sr.DAG/A&F/OW/32 dated 9 July, 9, to the Reporting Officers assessments under the
various attributes. He has strongly refuted these comments and has provided copies of documents (1
to 91 p) in support of refutation/comments especially for Pt.II, B 3.
The Reporting officer may review these and in light of his review may make considered
appropriate/necessary modifications and revisions in the ACR.
I do not accept some of the assessments as indicated within as these are vague (Pt.III A2 and 3) and
minor (Pt.III B2 and 4).
I also do not accept the Reporting Officers General Assessment in Pt IV 3. Thereafter, the reports
were communicated to the applicant and the applicant made his representation on 9.07.2009. The
reporting officer submitted his comments in November, 2010, as stated by the applicant. By that
time, Ms. Bharti Prasad had retired on superannuation and one Shri Narendra Singh had joined in
her place. After the superannuation of Ms. Bharti Prasad, Shri A.N. Chatterji assumed the charge as
Dy. CAG in her place as reviewing authority. His tenure was from July 2009 till April 2010.
Thereafter Shri A.K. Banerjee was the reviewing officer from May 2010 till October 2010. Shri
Narendra Singh was made the reviewing authority from November 2010 till November 2011. The
representation made by the applicant, as already stated, was not put up either before Shri Chatterji
or Shri Bajerjee but with unconscionable delay before Shri Narendra Singh. Shri Narendra Singh
thereafter on the representation dated 9.07.2009, passed an order on 7.01.2011 i.e. almost after
1-1/2 years by which he ordered that the grading of `good be retained but some of the remarks
could be expunged. This was confirmed by the CAG vide his order dated 5.09.2012. The applicant
alleges that the reporting officer deliberately delayed presenting his representation so that Ms.
Bharti Prasad, Shri Chatterji and Shri Bannerjee all leave the post and waits till Shri Narendra Singh
joins. Interestingly, it would be seen from the APARs from 2001-2012 that it is only Shri Tiwari who
has rated him as `good for 2008-09 and Shri Narendra Singh has endorsed that `good . Shri A.N.
Chatterji had rated him as `very good from 1.04.2009 to 31.08.2009 and thereafter one Shri
Pramod Kumar, AG and Shri Narendra Singh, Dy. CAG had rated him `outstanding from
1.09.2009 to 31.03.2010 and 1.04.2010 to 3.01.2011. Other than this, he has always received mostly
`outstanding or `very good as his grading except for the period 1.04.2005 to 31.03.2006 when he
was graded `good but in this case there was no review so in a sense this was incomplete. The
applicant has relied on the judgment of the Hon ble Supreme Court in State of M.P. and others Vs.
Vishnu Dutta (VS) Dubey and others, 1995 Supp (4) SCC 461 in which the Court had held as follows:
Service Law Annual Confidential Report Judicial review Tribunal quashing adverse ACR of
respondent for the year 1983-84 on the ground that there was no factual basis for recording it
Held, though normally Tribunal was not supposed to go into the merits of ACR and quash it,
considering the fact that the service record of the respondent from 1959 to 1983 had been excelled
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and that he had received 45 awards, interference with the order of the Tribunal was not called for.
He has also relied on P.K. Shastri Vs. State of M.P. and others, (1999) 7 SCC 329 in which the
Hon ble Supreme Court held as follows:
Be that as it may, we think that the CRs of an officer are basically the performance appraisal of
the said officer and go to constitute vital service record in relation to his career advancement. Any
adverse remark in the CRs could mar the entire career of that officer. Therefore, it is necessary that
in the event of a remark being called for in the confidential records, the authority directing such
remark must first come to the conclusion that the fact situation is such that it is imperative to make
such remarks to set right the wrong committed by the officer concerned. A decision in this regard
must be taken objectively after careful consideration of all the materials which are before the
authority directing the remarks being entered in the CRs. On the question of general principle of
writing ACRs, the applicant relied on S.T. Ramesh Vs. State of Karnataka and another, (2007) 9 SCC
436, in which the Hon ble Court held that the ACRs should be used as a tool for human resource
development and not for fault-finding process. In para 43 of the judgment, the Court held as
follows:
3. In order to satisfy ourselves we had called for the entire service record of the appellant and
upon perusal of the same, we find that the remarks of the reporting office for the period in question
were contrary to his consistent performance. The observation of Respondent 2 that the appellant
was an arrogant officer is followed by his remark that his knowledge and work is good. Such an
observation, in our judgment, cannot be the basis of an overall rating of average.
6. In fact, it was emphasized that the same P.K. Tiwari had assessed the applicant `outstanding
prior to this period and similarly Shri Narendra Singh had also assessed him as `outstanding for
two successive periods. The applicant has pointed out that after expunction of remarks, the only
adverse remarks which were remaining after the review were regarding (i) ill prepared affidavit in a
compassionate appointment; (ii) adopting dilatory tactics in the disciplinary case; and (iii)
misutilising delegated powers. In respect of all the three, the applicant had given detailed responses
along with documentary evidence, however, none of the impugned orders dealt with any of the
submissions made by the applicant. In fact, it is pointed out by the applicant that in reply to para
`H of the OA which deals with the issue of filing of affidavit, the respondents had stated that It is
denied that the stricture was passed not because of the ill prepared affidavit but because the
Accountant General passed a non-speaking, sketchy and one sentence order. It is further clarified
by the respondents in their reply that the contents of the present ground are also denied for want
of knowledge w.r.t. proceedings before Hon ble CAT, Ahmedabad. The respondents placed before
us the order of the Ahmedabad Bench of the Tribunal in OA 342/2008, Shri Rajdip Rameshbhai
Nagrale Vs. Union of India and ors., in which the Tribunal had made the following observations:
While passing the impugned order, the competent authority has not considered this and other
aspects. The application has been disposed off by one sentence only. It shows non-application of
mind.

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Jaydeep D. Tatmia vs The Comptroller & Auditor General ... on 11 March, 2014

7. The respondents claim that there was no malafide on the part of Shri Tiwari or Shri Narendra
Singh as Ms. Bharti Prasad had retired in between and it was not an intentional delay as claimed by
the applicant. It is argued that since the applicant had made a detailed representation, it took time
for the reporting officer to give his detailed comments on each and every issue raised by the
applicant and the delay was not intentional. The respondents also rely on the following judgments to
elaborate as to the law laid down by the Hon ble Supreme Court/ High Court of Gujarat at
Ahmedabad/ High Court of Delhi regarding when an action will be taken as malafide and that
malafides have to be clearly pleaded and proved and cannot be inferred or presumed:
Union of India (UOI) and ors. Vs. Ashok Kumar and ors., AIR 2006 SC 124 where the Hon ble
Supreme Court observed as follows:
Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad
faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or
bad faith or personal ill- will is not to be held established except on clear proof thereof, it is
obviously difficult to establish the state of a man's mind, for that is what the employee has to
establish in this case, though this may sometimes be done. The difficulty is not lessened when one
has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been
acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the
sense of improper motive should be established only by direct evidence. But it must be discernible
from the order impugned or must be shown from the established surrounding factors which
preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as
a reasonable and inescapable inference from proved facts. Rajendra Roy Vs. Union of India and
anr., AIR 1993 SC 1236 in which the Hon ble Supreme Court observed that:
In an appropriate case, it is possible to draw reasonable inference of mala fide action from the
pleadings and antecedent facts and circumstances. But for such inference there must be firm
foundation of facts pleaded and established. Such inference cannot be drawn on the basis of
insinuation and vague suggestions. Vakhatsinh Hemtaji Parmar Vs. Union of India and ors.,
Special Civil Application No.1837/2006 decided by the Hon ble High Court of Gujarat at
Ahmedabad, wherein the Hon ble Court observed as follows:
8. In the present case, the petitioner has no where stated that his transfer is a result of malafide
exercise of power and is, therefore, vitiated on that account. Malafides have to be clearly pleaded
and proved and cannot be inferred or presumed. The argument advanced by the learned counsel for
the petitioner has been repudiated by the Supreme Court in Rajendra Roy s case (supra) in the
following terms:
.It may not be always possible to establish malice in fact in a straight-cut manner. In an
appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings
and antecedent facts and circumstances. But for such inference there must be firm foundation of
facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague
suggestions.

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Jaydeep D. Tatmia vs The Comptroller & Auditor General ... on 11 March, 2014

9. The petitioner has neither laid a firm foundation on which to rest his vague use of the word
`malafide nor is there any specific averment as to which authority has acted in a malafide manner
and in what way the conditions of his service have been altered to his detriment due to such action.
No motive has been imputed to any authority and it has not been established that the action of the
authority in transferring the petitioner was not bona fide or in a routine manner, but was an
outcome of malice. On the basis of these judgments, it is claimed that the applicant has not been
able to prove that there was malafide and is just basing his allegations on surmises.
8. The respondents also raised the question of scope of judicial interference by this Tribunal and
relied on the following judgments:
Amrik Singh Vs. Union of India and ors., AIR 2002 SC 2382 where the Hon ble Supreme Court
observed as follows:
It is a well-known principle of administrative law that when relevant considerations have been
taken note of and irrelevant aspects have been eschewed from consideration and that no relevant
aspect has been ignored and the administrative decisions have nexus to the facts on record, the
same cannot be attacked on merits. Judicial review is permissible only to the extent of finding
whether process in reaching decision has been observed correctly and not the decision as such. In
that view of the matter, we think there is no justification for the High Court to have interfered with
the order made by the Government. Raj Kumar Kapoor Vs. Union of India, WP (C) 129/2012
decided on 9.01.2012 by the Hon ble High Court of Delhi. The Hon ble High Court held as follows:
Court could not interfere with assessment made by superiors of Petitioner, unless it was shown to
be arbitrary or suffering from vice of breach of some Rule or Regulation, which applied to Petitioner
No material had been placed, which would indicate that remarks recorded by Reporting Officer
and grades given to Petitioner, in ACRs for relevant years were arbitrary Reporting Officer had
justified grading given by him by giving details of types in which delay, carelessness and
non-application of mind on part of the Petitioner was noticed by him No breach of any Rule or
Regulation was even alleged. The respondents also cited the judgment of the Hon ble High Court
of Delhi in Rajinder Singh Sehrawat Vs. Union of India and others, 93 2001 DLT 417 in which, while
discussing the issue as involved in the present case, the Court held as follows:
The adverse entries made in the ACR in question are not in keeping with the petitioner s past
excellent record yet the tribunal did not make any attempt to find out the real cause for his sudden
down grading in the said ACR. Needless to emphasize that sudden downgrading in the ACR of an
official/ employee must be informed by discernible reasons.
9. We have gone through the facts of the case in detail and also the law cited by both sides. The
question to be decided is whether or not malafide is proved in this case and whether there is ground
for judicial intervention.
10. Needless to say that the Indian Audit and Accounts Service is one of our premier services which
has earned a very good name not only in our country but also internationally including multilateral
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agencies and the United Nations. Therefore, in order to preserve that level, it is incumbent upon
senior members of the service to be very careful while appraising performance of their juniors.
While doing so, they should be completely free from personal prejudices and bias. The applicant, in
our view, has been able to establish prejudice and malafide on the following grounds:
The language of the entries made by Shri Tiwari initially is extremely harsh which is not borne out
by the assessment of the same officer for the long period from 2001 to 2012 where he has been
assessed as `outstanding / `very good . As a result, several of his remarks were expunged by higher
authorities;
It is clear, as has been pointed out by the applicant as also from the documents that the Ahmedabad
Bench of the C.A.T. has passed strictures against Shri Tiwari for being negligent in his work, which
show non-application of mind and disposal of an application by one sentence only. The reporting
officer Shri Tiwari in his note says that it is the duty of the applicant to point out to him that he had
to give a detailed order. This argument is ridiculous. A Principal Accountant cannot take this stand.
He is the incharge and in an important matter like court case, he should himself have read the file
and the order of the Tribunal and then passed an order. Instead of taking a serious note of the
stricture that he has got, he is blaming his subordinates. He does not display good leadership
quality.
When the representation of the applicant was filed way back in July 2009, it seems very strange to
us that it takes such a long period for the reporting officer to give his comments and by the time, Ms.
Bharti Prasad, Shri A.N. Chatterji and Shri A.K. Banerjee joined as Dy. CAG and left and only after
that, he sends his comments to Shri Narendra Singh who joined later and took 1-1/2 years to settle
the representation. This cannot be mere coincidence.
The applicant s contention appears to be true that despite his explanation to three adverse
comments that remained in his ACR, none of the orders passed by the respondents have touched
upon them.
Except Shri Tiwari, in his long career, he has not earned `good grading except in one year as
pointed out earlier when he was graded `good but there was no review of that ACR. It is pointed
out that Shri Chatterji has rated him `very good and Shri Narendra Singh, on two occasions, has
rated him `outstanding .
Shri Tiwari himself has assessed him `outstanding as pointed out by the applicant.
11. In S.T. Ramesh (supra), it has been held that the confidential report should be used as a tool for
human resource development and not for fault-finding process. In this case, this ratio does not seem
to have been followed. Similarly in P.K. Shastri (supra), Justice Santosh Hegde has also held that the
authority directing entry of adverse remark must first come to the conclusion that in the fact
situation it is imperative to do so to set right the wrong committed by the officer concerned .In
State of M.P. Vs. Vishnu Dutta (supra), the Hon ble Supreme Court has held that the complete
service record of the officer needs to be seen while considering his case for promotion.
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12. It would be a fair conclusion from the above that the reporting officer clearly was biased and his
actions were malafide.
13. We feel that this matter is completely covered by the judgments of the Hon ble Supreme Court
in the above three cases. As a result, the ratio laid down by the Hon ble Supreme Court in Amrik
Singh (supra) would not apply in the present case as in that matter the Court, after having gone
through the concerned file and records, came to the conclusion that Prima facie, we cannot say,
having gone through those records, that these notings are baseless. In this case, the facts are
different, as pointed out above, this is surely a case of malafide. It is covered by the judgment of the
Hon ble High Court in Raj Kumar Kapoor (supra) as it has been held in that case that the Court
could not interfere with assessment made by superiors of petitioner, unless it was shown to be
arbitrary or suffering from vice of breach of some Rule or Regulation, which applied to petitioner.
Clearly, in this case the remarks should be held to be arbitrary and malafide, as has been viewed
earlier. In fact the Hon ble Supreme Court in Rajendra Roy (supra), Ashok Kumar (supra),
Vakhatsinh Hemtaji (supra) and Lt. Col. M.P.S. Gill (supra) has laid down the principle that the
Tribunal will interfere if there is malafide or any violation of service rules without any proper
justification. In this case, malafide comes out clearly.
14. In conclusion, we hold that there has been clear bias on the part of the reporting officer and
malafide action in ruining the applicant s APAR so that he is deprived of his promotion. Plethora of
judgments cited by both sides clearly explain the settled law in this regard which is that while
recording confidential reports, the superiors should be extremely careful and use it as a tool for
human resource development and not for fault-finding process especially in this case when we are
dealing with a premier service with an outstanding record, as mentioned earlier. The reporting
officer has clearly allowed his personal ego (for being pulled up by CAT, Ahmedabad Bench) to settle
scores with his subordinate by spoiling his confidential reports and thus violated the rules to be
followed in this regard. In a malafide manner, he has made entries some of which ultimately got
expunged. It is also established that the allegation he made against the applicant regarding the court
case is actually his fault and he is trying to pass on the buck to his subordinate. The delay made by
him in deciding the representation could not be reasonably explained and the conclusion could only
be that he was waiting for Ms. Bharti Prasad, Shri A.N. Chatterji and Shri A.K. Banerjee to retire or
get transferred so that he could get his way to retain the adverse remarks and grading of the
applicant. This is sinister!. Further, we also take note of the fact that this applicant has generally
been rated as `outstanding / `very good over the past ten years and the sudden down grading is
an aberration especially because Shri Tiwari and Shri Narendra Singh have themselves rated him as
`outstanding for different periods.
15. We, therefore, have no doubt in our minds that injustice has been done to the applicant and we,
therefore, quash the impugned orders dated 7.01.2011, 5.09.2012 and 3.01.2013 and set aside the
grading of `good for the year 2008-09 and the respondents are directed that APAR (2008-2009)
of the applicant be treated as above benchmark (i.e. at least very good ) and thereafter consider
the case of the applicant for all due promotions. This exercise should be completed within a period
of three months from the receipt of a copy of this order. No costs.
( P.K. Basu )
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( G. George Paracken )
8

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Member (A)

Member (J)

/dkm/

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