P&H HC Directs Protection Of Honest Officers While Setting Aside CM's Remarks On Khemka

In a major development, the Punjab and Haryana High Court in a latest, landmark and laudable judgment titled Dr. Ashok Khemka Versus State of Haryana and others in CWP-317-2019 (O&M) delivered on March 18, 2019 has very clearly and convincingly not just upheld the integrity of eminent IAS officer of 1991 batch – Dr Ashok Khemka known all over India who because of his upright and impeccable credentials has emerged as an eyesore for politicians of all hues but also very rightly expunged Haryana Chief Minister ML Khattar adverse remarks in his Personal Appraisal Report (PAR). Every honest and upright person will be most happy to learn about this! There can be no denying or disputing it!

Not just stopping here, the two Judge Bench of Punjab and Haryana High Court comprising of Justice Rajiv Sharma and Justice Kuldip Singh also observed without mincing any words that, '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.' Absolutely right! This landmark judgment authored by Justice Kuldip Singh for himself and Justice Rajiv Sharma made the above mentioned observation while deciding Dr Khemka's appeal which he had filed against an order of the Central Administrative Tribunal (CAT) which had rejected 'in toto' his application for expunging remarks made by Manohar Lal Khattar as the accepting authority and restoration of a grade of 9.92 as awarded by Cabinet Minister Anil Vij in his PAR for the period from April 8, 2016 to March 31, 2017, when he served as the Principal Secretary to Government of Haryana, Science and Techno logy Department.

There can be no gainsaying the irrefutable fact that Dr Ashok Khemka who is a 1991 batch IAS officer shot into limelight in 2012 for cancelling the mutation of a land deal between Congress President Rahul Gandhi's brother-in-law Robert Vadra and DLF. In a career spanning 21 years, the 52-year-old Dr Ashok Khemka has been transferred 52 times! Can on earth there be anything more unfortunate than this that an IAS officer whom none other than Punjab and Haryana High Court has hailed as an 'honest and upright officer' was subjected to repeated transfers and harassed and humiliated in a way which under no circumstances can ever be justified by any upright person?

First and foremost, this extremely commendable and noteworthy judgment sets the ball rolling by observing that, 'Petitioner-Dr Ashok Khemka, who is an Indian Administrative Services (IAS) Officer and holding the rank of Principal Secretary to Government of Haryana, has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India for quashing of the impugned order dated 31.12.2018 (Annexure P-1) passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal'). Petitioner has also prayed for expunging the adverse remarks and over all grading given by Accepting Authority under Section V-Acceptance of the PAR for the period from 8.4.2016 to 31.3.2017 (Annexure P-2) while restoring the overall grade of 9.92 as given by the Reviewing Authority.'

To recapitulate, it is then pointed out that, 'Brief facts of the case are that applicant-petitioner is 1991 batch Indian Administrative Services Officer (IAS), presently posted as Principal Secretary, Department of Sports, Government of Haryana. Under All India Services (Performance Appraisal Report), Rule 2007 (for short the AIS (PAR) Rules, 2007, the Performance Appraisal Report (for short 'the PAR') is written for every member of All India Services for each financial year as per Schedule 2.'

For the sake of brevity, it is enough to mention that in this laudable judgment, we then see that there are general guidelines in the said schedule for filling the PAR for which time frame is given in Schedule 2, Form II, Guideline 9.

To be sure, it is then pointed out that, 'Applicant-petitioner claims that in his case for the PAR for the period from 8.4.2016 to 31.3.2017, Accepting Authority wrote the remarks on 31.12.2017 and took 184 days in doing the same. Further on the comments of applicant-petitioner under Rule 9(2) of the AIS (PAR) Rules, 2007, no decision has been taken so far. Petitioner has also made a representation dated 1.6.2018 to the Chairperson of Referral Board stating that due to failure of the Accepting Authority to decide the representation within the prescribed time frame, the views of the Reviewing Authority has acquired the finally ipso juris and must be acted upon by expunging the appraisal of the Accepting Authority. However, no response has been received.'

As it turned out, this significant judgment then mentions that, 'Applicant-petitioner moved the Tribunal by filing the Original Application No. 060/01058/2018, titled as 'Dr Ashok Khemka vs. State of Haryana and another' on 4.9.2018 claiming the following relief:-

(i) expunge the remarks and the overall grade recorded by the Accepting Authority in 'Section V-Acceptance' of the Performance Appraisal Report for the period, 8th April 2016 to 31st March 2017 and restore the overall grade of 9.92 as per appraisal done by the Reviewing Authority;

(ii) grant any other relief, which may be deemed to be just and proper; and

(iii) allow he present O.A. With costs.'

What's more, it is then pointed out that, 'The plea of the applicant-petitioner did not find favour from the Tribunal which vide its order dated 3.12.2018 held that the Accepting Authority recorded the appraisal report on 31.12.2017 well within the time prescribed under relevant Rule 5 (1) of the AIS (PAR) Rules, 2007 and para 9.4 of the General Guidelines. Hence, the application was dismissed.'

To put things in perspective, it is then pointed out in this notable judgment that, 'We have heard learned counsel for the parties and have carefully gone through the case file. In this case, it is not disputed that for recording the PAR of the IAS Officer, certain time frame has been given as reproduced above. Before the Tribunal, the applicant-petitioner had claimed that the remarks by the Accepting Authority were time barred and that since his representation under Rule 9(7B) of the AIS (PAR) Rules, 2007 has not been decided, the views of the Reviewing Authority have become final. Undoubtedly, the statutory representation of the petitioner has not been decided by the Accepting Authority within the time frame. Under Rule 5 of the AIS (PAR) Rules, 2007, the Central Government can make such addition in the form or the cut off date as may be considered necessary or desirable. Therefore, the time frame as fixed for recording the PAR could be varied. The Tribunal has relied upon Rule 5(1) of the AIS (PAR) Rules, 2007 and para 9.4(1) of the General guidelines which provide that if the PAR relating to the financial year is not recorded by 31st December of the year in which financial year ended, no remarks shall be recorded thereafter, and the officer may be assessed on the basis of overall record and self-assessment of the year concerned, if he has submitted his self-assessment on time. The time frame is the technical aspect of the matter. However, before this Court, it has been argued that even on merits, the views of Accepting Authority are to be rejected.'

Needless to say, it is then pointed out that, 'We have carefully examined the PAR of the applicant-petitioner. It comes out that the applicant-petitioner at the relevant time was working as Principal Secretary to Government of Haryana, Science and Technology Department.'

It must be clarified here as has been pointed out also in this judgment itself that Reporting Authority is Chief Secretary of Haryana and period worked is from 08/04/16 to 31/3/2017. Reviewing Authority is Science and Technology Minister Haryana and period worked is from 23/07/2016 to 31/3/2017. Anil Vij who is Health Minister is Reviewing Authority. Accepting Authority is Chief Minister of Haryana and period worked is from 08/04/16 to 31/3/2017. The Reporting Authority grades Dr Khemka mostly as 8.1, 8.2, 8.3, 8.4 and overall grades him as 8.22 and 8.27 but Reviewing Authority who is Anil Vij grades him much better and grades him mostly as 9.8, 9.9, 10 and overall grades him as 9.92 and 9.87 which is certainly very good.

Going forward, it is then pointed out in this historic ruling that, 'Regarding integrity of the applicant-petitioner, it is recorded that 'his integrity is beyond doubt'. The Reporting Officer wrote the following comments on the overall qualities of the officer i.e. the present petitioner which are reproduced below:-

'Sh. Khemka is an intelligent and experienced officer. The officer possesses a very good understanding of various Acts and Rules. He can examine an issue thread bare bringing out all the pros and cons. He possesses good command over the written and spoken word. Against the revised plan budget estimate of Rs. 26.62 crores of the Science and Technology department, Rs. 25.35 crores was spent. Five years backlog for Haryana Vigyan Ratna and Yuva Vigyan Ratna Awards was cleared by him. The officer fully understands the power of social media. He frequently tweets on diverse subjects, including matters not directly related to his department. He has a sympathetic attitude towards the Scheduled Castes and weaker sections of society'.'

Moving on, it is then observed that, 'The Reporting Authority (Minister concerned) wrote the following remarks about the qualities and strength of the officer i.e., the present petitioner which are reproduced below:-

'Mr. Ashok Khemka is well-known in the country for effective professional integrity under very difficult circumstances. Despite being in a relatively unimportant post, Mr. Ashok Khemka has shown excellent achievements under severe constraints. He is very innovative and was the first to use WHATSAPP in court proceedings to effect service upon the respondent. By his personal example, Mr. Ashok Khemka inspires many young officers. He has immense potential which can be utilized better by the Government'.'

Furthermore, it is then pointed out that, 'The Reporting Authority gave the overall grade on the scale of 1-10 as 9.92. However, the Accepting Authority i.e., the Chief Minister differed with the opinion of the Reviewing Authority and recorded the following remarks: -

'The Reviewing Authority has differed with the Reporting Authority but has 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 report of the Reviewing Authority is slightly exaggerated'.'

More importantly, the Punjab and Haryana High Court Bench comprising of Justice Kuldip Singh and Justice Rajiv Sharma then very rightly held for which they must be appreciated and applauded that, 'We are of the considered view that the remarks recorded by the Accepting Authority are liable to be expunged. The Accepting Authority has recorded that Reviewing Authority has differed with the Reporting Authority but not given any reason for the same. However the same is found to be absolutely incorrect as the Reviewing Authority has given brief reasoning recording that the petitioner is well known in the country for effective professional integrity under very difficult circumstances. Even Accepting Authority has not made any adverse remarks regarding the integrity of officer. Reference has been made to 'excellent achievements under severe constraints'. It has also been mentioned that he is very innovative and has immense potential which can be utilized better by government. The Accepting Authority has recorded that the Reviewing Authority or the officer himself has not specified any constraint what to talk of 'severe constraints'.

It cannot be lost on us that the Bench then further goes on to held that, 'We are of the view that some of the matters are better understood than said in expressed words. The severe constraints in which an honest and upright officer works under the political leadership are well known. There are so many pulls and pressures and the officer has to work according to the rules despite all these pulls and pressures. The Reviewing Authority has recorded that the petitioner is well known in the country for effective professional integrity under very difficult circumstances.' This alone explains why he was frequently transferred from one place to another because the brutal truth is that an honest person is rarely favoured wherever he/she goes!

It also has to be borne in mind that the Court then commendably and very rightly goes on to state that, 'We are of the view that a person of such professional integrity needs to be protected as the professional integrity in our political, social and administrative system is depleting very fast. Even the Reporting Authority i.e., the Chief Secretary, Haryana has recorded that petitioner is an intelligent and experienced officer. His integrity is beyond doubt. Therefore, 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 protectonfrom being damaged by recording adverse remarks against the record.'

Most importantly, the Bench then also held most rightly that, 'Consequently, we are of the considered view that leaving aside the time frame, the opinion of the Accepting Officer is liable to be expunged and so is the grading which is given 9.00 by the Accepting Authority. At the same time, we are of the view that the time frame fixed under the Rule for recording PAR is not a water tight compartment and there can be some flexibility in the same. Further it comes out that the Accepting Authority has not decided the representation of the petitioner so far. For the reasons recorded above, the impugned order dated 3.12.2018 (Annexure P-1) passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh is set aside. The remarks of the Accepting Officer and the grading of 9.00 given by the Accepting Authority are hereby set aside and the opinion given by the Reviewing Authority is restored. The grading of 9.92 given by the Reviewing Authority is also restored and will prevail upon the grading given by the Reporting Authority. Accordingly, the petition is allowed.'

On a concluding note, let me be honest enough to concede that the names of Justice Kuldip Singh and Justice Rajiv Sharma shall always be written in my heart at least for this best judgment I have ever read and most notably for openly rooting in favour of a dead honest IAS officer who has always been in news for taking on corruption not fearing even the first family of India that is the Gandhi family which will hundred percent boost the morale of many more honest officers like him who due to frequent postings and adverse reports tend to succumb! But Dr Ashok Khemka is not one of them inspite of facing repeated transfers, harassment and humiliation and has emerged as the best example of an honest and upright IAS officer whom every Indian can and in fact must inevitably look upon as a worthy inspiration to follow! Anil Vij is the one politician who has hundred percent backed Dr Khemka as is evident in his observations and gradings which has already been discussed above and therefore every Indian must be proud of him also!