HC Erred In Setting Aside CM's Remarks Against IAS Officer's PAR : Supreme Court Allows Haryana Govt Appeal Against Ashok Khemka

The Supreme Court today allowed Haryana government's challenge to a Punjab and Haryana High Court order, which set aside Chief Minister ML Khattar's (Accepting Authority's) remarks and overall grade regarding senior IAS Officer Ashok Khemka's Performance Appraisal Report (PAR)."We are of the opinion that the learned Division Bench of the High Court erred in law", said the Bench of Justices Vikram Nath and Satish Chandra Sharma. It however directed the Accepting Authority to decide Khemka's representation under Rule 9(7B) of the All India Services (PAR) Rules within a period of 60 days, after which he shall be at liberty to take recourse to remedies available under law.After pronouncing the judgment, Justice Sharma enquired if Advocate Shreenath A Khemka (who appeared for IAS Officer Khemka) was present in Court. Although the answer was given in the negative, the Judge expressed that Khemka "argued very well".It is worthwhile to mention that the initial phase of the proceedings saw respondent No.1-Khemka being disallowed by the Supreme Court Registry from filing reply to the present petition in-person. Apparently, he had to engage an AoR "under duress" and even wrote to then CJI Bobde seeking clarification regarding the Supreme Court Rules, 2013.BackgroundTo put the facts briefly, Khemka is an Indian Administrative Services Officer of the 1991 batch. When he was engaged as Principal Secretary to the Government of Haryana in the Science and Technology Department (between 08.04.2016 and 31.03.2017), the Accepting Authority made the following remarks in his Performance Appraisal Report (PAR) -“The Reviewing Authority has differed with the Reporting Authority but 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 the report of the Reviewing Authority is slightly exaggerated.”Following the same, Khemka sent comments under Rule 9(2) of the AIS (PAR) Rules, but, no response was received. He further made a representation for quashing of Accepting Authority's remarks & overall grade and restoration of those given by the Reviewing Authority, but no action was taken.In 2018, Khemka moved the Central Administrative Tribunal, Chandigarh, alleging that the Accepting Authority's remarks were time-barred and since his representation had not been decided, the views of the Reviewing Authority had become final. He prayed that the subject remarks and the overall grade recorded by the Accepting Authority be expunged, and also sought restoration of the overall grade of 9.92 recorded by the Reviewing Authority.The Tribunal rejected this plea, being of the view that the Accepting Authority recorded its appraisal within time period prescribed under Rule 5 (1) of the 2007 Rules and para 9.4 of the General Guidelines. Against the same, Khemka approached the Punjab and Haryana High Court, which set aside the remarks and overall grade given by the Accepting Authority.High Court ObservationsVide the impugned order, the High Court restored the opinion and overall grade of 9.92 given by the Reviewing Authority. It observed that though the Accepting Authority recorded that Reviewing Authority differed with the Reporting Authority without giving reason, the same was not correct, as the Reviewing Authority gave brief reasoning recording that the petitioner was well known in the country for effective professional integrity under very difficult circumstances.In connection with the issue over time frame for recording PAR, the High Court said that the same could be varied as the Rules did not indicate a watertight compartment. On merits, however, the Accepting Authority's opinion was found liable to be interfered with.In arriving at a decision, the High Court noted that even the Accepting Authority did not make any adverse remarks regarding the integrity of Khemka. Making reference to "severe constraints" mentioned in the Accepting Authority's opinion, it remarked that the constraints in which an honest and upright officer works under the political leadership are well known. As professional integrity in the administrative system was depleting very fast, integrity of a person like Khemka had to be protected.To quote the High Court, "...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 protection from being damaged by recording adverse remarks against the record."Aggrieved by the High Court order, the Haryana government filed the present case. The appeal has now been...

HC Erred In Setting Aside CM's Remarks Against IAS Officer's PAR : Supreme Court Allows Haryana Govt Appeal Against Ashok Khemka

Debby Jain

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