Alok Kumar Singh, J. - (1.) THE following relief has been sought in this O.A.: - (a) Issue a suitable order or direction quashing the impugned adverse remarks/entries given to the applicant by the Reporting Officer in his ACR for the period 6.9.2004 to 31.3.2005, as agreed to by the Reviewing Officer, as also the impugned order passed by the Competent Authority (conveyed to the applicant vide the letter dated 16.4.2007, and received by him on 24.4.2007), rejecting the applicant's representation dated 27.3.2006, preferred by him against the award of the impugned adverse remarks/entries (Annexure Nos. A -1 and A -2 to Compilation No. 1). Shorn of details, the case of the applicant is that he belongs to Indian Revenue Services (IRS). He joined as Probationer at Lal Bahadur Shastri National Academy of administration, Mussoorie on 6.9.2004 for undergoing a three and half months Foundation Course. After completing the said course, and after availing 10 days joining time permitted under the rules, he joined at the NADT on 27.12.2004. After completing his training at NADT and being relieved in June, 2006, the applicant got his first posting in the field as Assistant Commissioner of Income Tax (ACIT) at Gonda, U.P. From there he was transferred to Lucknow on 13.7.2006. While still undergoing training at NADT, he was issued a communication dated 13.1.2006 conveying that his performance for the period 6.9.2004 to 31.3.2005 had been rated by the Reporting Officer as 'Inadequate' in respect of Columns 10, 11(i), 12, 13, 14(ii) to (iv), 16, 17 of Part -III of the ACT and in Part -IV of the ACR, the Reviewing Officer had also agreed with the rating given to him by Reporting Officer (Annexure -A -1). During applicant's stay at NADT, the Reporting Officer, Sri B.S.N. Prasad, had taken an unnecessarily victimizing stand only because he came form Bihar, a State for which Sri Prasad appeared to have a pronounced dislike and also because the applicant belonged to a backward class. On several occasions the applicant was meted out shabby and discriminatory treatment by Sri Prasad. In Para 17 of Part III of the ACR, it is mentioned that the applicant had been served with several memos. But, the correct position is that during the period in question, he was given only one memo regarding his unauthorized absence from class on a particular day. Unfortunately, the adverse remarks which were cryptic and telegraphic in nature and were made casually and unfairly by the Reporting Officer were also agreed to by the Reviewing Officer without any independent application of mind to the fact that the applicant was not served with several memos. The Reviewing Officer did not bother to consider the self -assessment report submitted by the applicant and/or verify the correctness of the performance as claimed by him. The period under review also includes the tenure of the Foundation Course at Mussoorie, during which nothing adverse was conveyed to him. In response to the aforesaid letter dated 13.1.2006 communicating the adverse remarks, the applicant submitted a representation dated 27/29.3.2006 (Annexure -A -4). But his representation was rejected by the Competent Authority (as communicated vide letter dated 16.4.2007 (Annexure -A -2) in the following terms: - I agree with the comments to Reporting Officer as well as Reviewing Officer. I find that there are no sufficient grounds for interference and that the representation deserves to be rejected, therefore adverse remarks do not deserve expunction.... This communication would show that his representation has been rejected by non -speaking order which does not even pretend to address any of the ground taken by the applicant in his representation. He has also been informed that his (subsequent) representation dated 28.9.2006 against the adverse remarks need not to be considered because as per rules only one representation can be made against the adverse remarks. In this regard the applicant's case is that he did not make any representation on 28.9.2006 in respect of remarks in question. The correct fact according to him is that on 28.7.2006 (Annexure -A -5) he was issued a letter saying that certain adverse remarks have also been given by the Reviewing Officer in Column -1 and 2 of Part -IV of the ACR for the period 1.4.2005 to 31.3.2006 and he can make representation against the same. Accordingly the applicant had submitted the subsequent representation dated 28.9.2006, which was in respect of above period and not in respect of the period in question i.e. from 6.9.2004 to 31.3.2005. It appears that since the second representation was also before the Competent Authority, at the time he was taking decision in respect of applicant's representation relating to the period 6.9.2004 to 31.3.2005, he failed to distinguish between the two ACRs and it is for this reason that the applicant's another representation dated 28.9.2006 has also been mentioned in the rejection order. However, the aforesaid confusion on the part of the Competent Authority throws up a disturbing fact that while taking decision on applicant's representation dated 27.3.2006 pertaining to the period 6.9.2004 to 31.3.2005, the Competent Authority had been influenced by the adverse comments made by the Reviewing Officer in the applicant's ACR for the period 1.4.2005 to 31.3.2006, thereby vitiating the order of rejection passed in respect of applicant's representation dated 27.3.2006. Thus, the rejection of applicant's representation dated 27.3.2006 is demonstrably and palpably based on irrelevant, extraneous and inadmissible considerations. Hence this O.A.
(2.) THE O.A. has been contested by all the respondents including the private respondent Nos. 4 and 6, who have also been impleaded in their personal capacities. But only one counter affidavit has been filed on behalf of all the respondents. In other words no separate counter affidavit has been filed by the private respondents in their personal capacities to controvert the allegations of bias made against them. In Para 11, it has been admitted that the applicant was served with only one written memo during the period of review, in Para 18, it has been conceded that Competent Authority had not considered the various points canvassed in the representation dated 27.3.2006 by the applicant. After calling for the comments of the Reporting Officer and Reviewing Officer on the applicant's representation dated 27.3.2006 and after considering carefully the representation and the report/comments submitted vide communication dated 4.5.2006 and 28.7.2006 respectively, (contained as Annexure Nos. 1 and 2) the Competent Authority has found it fit to reject the representation of the applicant. It has been also said that subsequent representation dated 28.9.2006 made by the applicant relating to ACR for the year 2005 -2006 was not considered in rejecting the representation dated 27.3.2006. The proceedings in respect of applicant's representation dated 28.9.2006 are still in progress and have not reached in any finality. A Rejoinder Affidavit has also been filed denying the contents of the counter affidavit and also reiterating the averments contained in the O.A. It has been emphasized that the communication order dated 16.4.2007 itself indicates that the Competent Authority, while rejecting the representation has himself indicated that there cannot be two representations against the adverse entries. This shows that subsequent representation dated 28.9.2006 has been taken by the Competent Authority to be against the adverse entries for the year ending 31.3.2005.
(3.) A Supplementary Counter Affidavit has also been filed by the respondents in which averments contained in the counter affidavit have been almost reiterated.;