Allowed

Dr.Pramod Kumar v. Union of India and Ors.

Rajasthan HC4 Nov 2022CW/79/2004

Case brief

AI extract

What is this about?

This order addresses a writ petition by a BSF medical officer seeking to quash adverse remarks in his Annual Confidential Report. The Court held that the communication of remarks and the rejection of his representation violated BSF procedural instructions regarding jurisdiction and timelines, declaring the action arbitrary and expunging the remarks.

What did the court decide?

The adverse remarks, the communication dated 05.10.2002, and the rejection order dated 08.03.2003 are quashed and set aside. The adverse remarks are treated as expunged. The petitioner is entitled to

Dr.Pramod Kumar Vs Union of India and Ors. — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 79/2004

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Dr. Pramod Kumar s/o Shri Neelkanth, aged 42 yrs, Chief Medical Officer, 36 Battalion BSF, Satrana District, Sriganganagar (Raj).

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----Petitioner

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Versus

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Union Of India, Through the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi-110010.

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The Director General, HQ Border Security Force, CGO Complex, Block No. 10, Lodhi Road,

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The Inspector General, BSF HQ, Rajasthan & Gujarat Frontiers, Mandore Road, Jodhpur (Raj).

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Shri Y.S. Sikarwar, Dy. Inspector General, BSF, Sector Headquarter, Gurdaspur, Distt. Gurdaspur (Punjab). (Previously DIG, SHQ, Barmer)

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Shri P.K. Purukayastha, Commandant, Sector HQ, BSF, Patgaon, Distt. Kamrup (Assam) (Previously Comdt. 173 Bn. BSF)

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----Respondents

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For Petitioner(s)	: Mr.	K.K. Shah
For Respondent(s)	: Mr.	Prakash Choudhary

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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04/ 11/2022

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The petitioner, who joined the Border Security Force (‘BSF’) as doctor in Medical Branch on 09.05.1988, has filed the present petition seeking quashing of adverse remarks in his Annual Confidential Report (‘ACR’) dated 05.06.2002 for the period of 2001-2002, the letter dated 05.10.2002 communicating the adverse remarks and the order dated 08.03.2003 passed by Inspector General, Frontiers Headquarters, Jodhpur (Respondent

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(2 of 9)

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[CW-79/2004]

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No.3) whereby his representation dated 03.12.2002 against such adverse remarks was rejected.

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Briefly stated facts of the case are that while the petitioner was holding the post of Chief Medical Officer (CMO) (Ordinary Grade), the reporting officer of the petitioner made following adverse remarks in his ACR pertaining to the year 2001-2002 (01.04.2001 to 31.03.2002):-

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“A bulky officer, who is self centred and arrogant in nature. He is argumentative and surpasses the limits and norms of descency in official correspondence. He is also by nature confronting and non adjustable in all issues except which serves his own purpose. xxxxxxx The officer was advised by me also on number of occasions verbally as well as in writing, but showed no proper change in his behaviour.”

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The adverse remarks were conveyed to the petitioner vide communication dated 05.10.2002 by the DIG/PSO FTR HQ, Jodhpur. The petitioner was allowed to make representation, if any, against the adverse remarks within a period of one month of the date of communication of these remarks through proper channel. The petitioner submitted a representation against the adverse remarks on 03.12.2002 addressed to the Director General, Border Security Force, New Delhi, requesting to expunge the adverse remarks as the same were not backed by any specific incidents and further, the adverse remarks were made by the reporting officer due to biasness and ill will towards him. The Inspector General, BSF, HQ, Rajasthan and Gujarat Frontiers vide letter dated 08.03.2003 rejected the representation being devoid of merit.

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The petitioner has pleaded that HQ, BSF has issued a booklet titled “Instructions for Rendering ACRs in BSF” (hereinafter

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(3 of 9) [CW-79/2004]

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referred to as 'Instructions for ACRs'). The para 59-70 of the Instructions for ACRs deal with the procedure for communicating adverse remarks, representation against the same and its disposal. It is further pleaded that as per para 62 of the Instructions for ACRs, all the adverse remarks in ACR of Government servants should normally be communicated by the reviewing officer or by the reporting officer, in case there is no reviewing officer as far as possible within one month of the completion of the report. In case of BSF officers, adverse remarks would be communicated only by Personnel Directorate, FHQ on approval from DG, BSF. Further, para 72 of Instructions for ACRs provides that the competent authority to deal with the representations of Gazetted Officers shall be Director General. It is also averred that the Director General, HQ, BSF issued a policy dated 11.09.1998 which lays down in para 2 (b) of letter No.A28011/6/98/cc/Pers/BSF/2674-2925 that Frontier Headquarters have been entrusted with the responsibility to make decisions about the adverse/advisory remarks, if existing in the CR of the officer upto the rank of Deputy Commandant (DC) and to communicate the same as per the instructions before sending to the confidential section, Personnel Directorate, FHQ.

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In the reply to the writ petition, respondents have pleaded that the adverse remarks have been endorsed by the reporting officer in the ACR of the petitioner after closely watching and monitoring the day to day activities of the petitioner during the period under consideration and also based on the facts of the case. It is further pleaded that Annual Confidential Report of an individual is prepared on the basis of his/her actual performance

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(4 of 9)

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[CW-79/2004]

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throughout the relevant period of reporting. In the present case, the senior officers advised the petitioner to improve his working but the petitioner failed to take cognizance of any such advice. It is further averred that the procedure provided under Annual Confidential Reports Procedure and Instructions, 1991 was followed in letter and spirit.

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Learned counsel for the petitioner submitted that the basic aim of Annual Confidential Report is to have an objective assessment of the incumbents, professional and personal qualities, competence and potential as observed during the period of ACR. It is incumbent upon the reporting officer to be fair, impartial and objective in assessing an individual. However, in the present case, the reporting officer did not give any weightage to such vital ingredients of ACR and entered adverse remarks out of sheer malice, ill-will and personal vendetta.

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Learned counsel further submitted that para 59-70 of the Instructions for ACRs deals with the communication of adverse remarks, representation against the same and its disposal. In the case of the petitioner, the period of ACR was from 1^st April, 2001 to 31^st March, 2002. The ACR after completion is to be forwarded to the reviewing officer by 30.04.2002. However, in the case of the petitioner, the adverse remarks were communicated vide letter dated 05.10.2002 and there was a delay of more than five months, which is fatal and on this count alone, the adverse remarks deserve to be quashed and set aside.

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Learned counsel further submitted that as per para 72 of Instructions for ACRs, the competent authority to deal with the representation against adverse remarks of the petitioner is

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(5 of 9) [CW-79/2004]

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Director General, BSF. However, the representation was rejected by Inspector General, Frontier Headquarter, Jodhpur vide letter dated 08.03.2003, who had no authority/jurisdiction to deal with the representation.

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Learned counsel further submitted that the Frontier Headquarters have been entrusted with the responsibility to make a decision about the adverse/advisory remarks, if existing in the ACR of the officer upto the rank of Deputy Commandant (DC), however, the petitioner was holding the post of Chief Medical Officer (Ordinary Grade), which is equivalent to rank of Commandant (Ordinary Grade) and therefore, the Inspector General, BSF, Frontier Headquarters had no jurisdiction to communicate any adverse remarks to the petitioner.

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Learned counsel thus prayed that the adverse remarks dated 05.06.2022 made against the petitioner deserves to be expugned and the impugned communications dated 05.10.2002 and 08.03.2003 may be quashed and set aside.

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Per contra, learned counsel for the respondents submitted that adverse remarks have been entered in the ACR by the reporting officer based on the day to day performance and after consistently apprising the petitioner regarding his shortcomings. Learned counsel further submitted that the delay in communicating adverse remarks in the ACR occasioned due to the placement of the reporting officer (the then Commandant 173 Bn. BSF) under the control of Army w.e.f. 30^th December, 2001 to 30^th November, 2002 during ‘Operation Parakaram’, who initiated ACR 2001-2002 in respect of petitioner vide letter dated 13.06.2002.

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(6 of 9) [CW-79/2004]

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Learned counsel further submitted that as per Instructions for Rendering ACRs, the accepting authority of ACR for Chief Medical Officer (Ordinary Grade) is the Frontier Inspector General. Hence, the Frontier Inspector General is competent to communicate the adverse remarks and take decision on the representation dated 03.12.2002. It was further argued that the memorial dated 03/04 June 2003 addressed by the petitioner to Hon’ble President of India submitted through the Commandant, 36 Bn BSF as per Rule 75 of Booklet on Annual Confidential Report Procedure and Instructions, 2003 for expunction of adverse remarks recorded in his ACR 2001-2002 was examined and rejected by the competent authority at Ministry of Home Affairs vide order dated 5/6.04.2004.

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Learned counsel thus prayed that the ACR dated 05.06.2002 and communications dated 05.10.2002 and 08.03.2003 deserves to be upheld.

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Heard learned counsel for the parties and perused the material available on record.

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Para 62 of the Instructions for ACRs is reproduced hereinbelow for the sake of ready reference:-

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“Para-62- All the adverse remarks in the CR of Govt. Servants should normally be communicated by the Reviewing Officer or by the reporting officer in case there is no Reviewing officer. This should be done as far as possible within one month of the completion of the report. The communication should be kept in the CR dossier of the Govt. Officer concerned. In case of BSF Officers, adverse remarks will be communicated only by Pers. Dte. FHQ, on approval from the DG BSF.”

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Relevant portion of Para 72 in the Instructions for ACRs is reproduced hereinbelow for ready reference:-

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(7 of 9)

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[CW-79/2004]

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“(i) Gazetted Officers Director General (ii) Subedars/Inspectors I.G. (Ftr)/ I.G. under whom placed”

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Para 2(b) of the letter No.A-28011/6/98/cc/Pers/BSF/2674-

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2925 is reproduced hereinbelow for ready reference:-

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“Communication of Adverse/Advisory remarks by FTR HQS:- FTR HQ have been entrusted with the responsibility to make a decision about the adverse/advisory remarks if existing in the CR of the officer up to the rank of Dy. Commandant (DC) and to communicate the same as per the instructions, before sending to confidential section, Prs. Dte. FHQ”

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Indisputably, the procedure for making adverse remarks, communication thereof, representation against the same and its disposal in the respondent-organisation are governed by the Instructions for Rendering ACRs in BSF. The confidential reports contain general assessment of character, conduct and qualities of a Government servant which may include remarks about his good work, devotion to duty and integrity. These entries also reflect the inefficiency, delay, lack of initiative, carelessness in handling the issues or any defect in character or integrity.

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It is settled law that adverse entries are important in nature as on the basis of these entries, a Government servant’s suitability to the office is assessed for the purposes of his/her confirmation, promotion and even for retention in service. Any adverse remarks awarded against a Government servant is communicated to him so as to afford him opportunity of explaining the correct position by means of representation. The competent authority is required to examine the representation objectively. Though, the superior/reviewing authority is not required to write detailed

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(8 of 9)

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[CW-79/2004]

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judgment or order for affirming the remarks made in ACR or for expunging the same.

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Para 72 of the Instructions for Rendering ACRs in BSF stipulates that competent authority to deal with the representations filed by Gazetted Officers of the organisation against adverse remarks will be Director General. Though, the respondents have submitted that Frontier Inspector General is competent to take decision on representation submitted by the petitioner against adverse entry but nothing has been placed on record or made available to Court during the course of arguments to substantiate the same. Further, from the perusal of Para 2(b) of the letter No.A-28011/6/98/cc/Pers/BSF/2674-2925, it is apparent that the Frontier Headquarters have been entrusted with the responsibility to take a decision on adverse/advisory remarks, if existing in the confidential report of the officer upto the rank of Deputy Commandant (DC). Admittedly, petitioner at the relevant time, was holding the post of Chief Medical Officer (Ordinary Grade), which is equivalent to the rank of Commandant (Ordinary Grade) in the respondent-organisation, higher than the Deputy Commandant (DC).

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True it is that the Instructions for Rendering ACRs in BSF issued by the respondent-organisation containing procedure to deal with the grievances against the adverse remarks/entries in ACRs is not mandatory in nature but in the considered opinion of this Court, the same are required to be adhered to so as to achieve the purpose for which they have been framed. The instructions/guidelines contained in the Instructions for Rendering ACRs in BSF cannot be flouted without any just and valid reason.

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(9 of 9)

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[CW-79/2004]

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However, the deviation is permissible when there are cogent reasons for that.

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In view of above, the respondents have satisfactorily explained the reasons for delay in communicating the ACRs beyond the period prescribed under Para 62. However, the respondents have utterly failed to satisfy the Court as to why the representation dated 03.12.2002 submitted by the petitioner against adverse remarks addressed to Director General, Border Security Force, New Delhi (Respondent No.2) was not forwarded to him for decision and came to be rejected by Inspector General, Frontier Headquarter, Jodhpur, who had no jurisdiction to deal with it. It must therefore be held that the case of the petitioner has not been dealt with fairly and in accordance with the procedure provided by the respondent-organisation for dealing with adverse remarks against an official. The action of the respondents thus suffers from arbitrariness.

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As a result of above discussion, the writ petition is allowed. The adverse remarks dated 05.06.2002 (Annex.30) and communications dated 05.10.2002 (Annex.31) and 08.03.2003 (Annex.33) are declared illegal and the same are quashed and set aside. The adverse remarks entered into the ACR of the petitioner for the period 2001-2002 (01.04.2001 to 31.03.2002) shall be treated as having been expunged. The petitioner shall be entitled to all consequential benefits.

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No order as to costs.

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(KULDEEP MATHUR),J

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KshamaD/-

Dr.Pramod Kumar v. Union of India and Ors.

Case brief

What is this about?

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Dr.Pramod Kumar v. Union of India and Ors.

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