– Shreenath A. Khemka*
Public Law can be understood as the body of principles and rules governing the State machinery. Therein, Service Law governs the terms of public office, whereas Administrative Law governs the exercise of public powers; and in such regards, are foundational of Constitutional Law. Historically, public appointments were at the ‘pleasure of the crown’, offering little adherence to a rule-based framework.[1] However, subsequent revolutions festered deeper commitment to the rule of law,[2] giving birth to nebulous principles nucleating distinctly into Service Law and Administrative Law.
Given its filial relationship to political processes, Service Law entailed a difficult balance between its justiciable precepts and its discretionary prerogatives. Any claim less than an obtrusive processual discrimination would be rebuffed from judicial review as either a difference of opinion or a policy decision. Hence for the longest time, public officials worked with reckless disregard of equity because of tacit impunity from non-political review.
However, Lord Chief Justice Holt’s dissent in 1703 in Ashby v. White[3] brought about a marked change in this judicial abstinence; finding the need to hold public officials accountable for their excesses. Since then, Service Law has matured to encourage exactitude by demanding adherence to rule-based framework over ad hoc determination. A pre-determined set of rules allows for deeper implementation of the word, and adjudication closer to the intent.
However, in practice, not all Service Rules are read alike. Intertwined with political considerations, these Rules raise several jurisprudential difficulties of interpretational consistency, jurisdictional competence, and realpolitik effect. While some Rules are proclaimed as absolute, others are spoken with negotiability; and on rarer occasions, there are whispers of surreptitiousness. The question that arises is whether there exists a uniform judicial approach in Service Law interpretation, and whether the same is desirable. An interesting case at hand, which I happened to litigate,[4] is that of Dr. Ashok Khemka,[5] against the sitting Chief Minister of Haryana.
Dr. Khemka’s Grouse with the Chief Minister Promotions in public services are determined through a sui generis system of Annual Confidential Reports (ACRs). Such ACRs are assessments of the officer’s performance by his superiors, yet for the longest time were kept from disclosure to the officer himself.
Ostensibly, the reason for the secrecy was to enable superior officers to be openly critical of the subordinate’s performance, without the risk of turning relations sour. However, given that such assessments were kept from the officer, superiors started wielding the fiat of their pen with impunity. Gradually, unfounded and malicious remarks begun to haunt the career prospects of bona fide officers, who could not challenge them due to the confidentiality.
Consequent to Justice Katju’s deliverance in Dev Dutt v. Union of India,[6] all such ACRs were mandated to be disclosed for enabling judicial review, to preclude prejudice[7] and to promote transparency.[8] The executive ushered the reform by provisioning for a step-wise framework under the All India Service (Performance Appraisal Report) Rules 2007. Under the 2007 Rules, an ACR (or a Performance Appraisal Report, or PAR) would commence with Self-Assessment by the officer concerned, together with a list of achievements.[9]
Thereupon, the Reporting Authority would offer his views and grading;[10] which would then be reviewed by the Reviewing Authority’s independent views and grading.[11] Finally, the Accepting Authority would determine the final grading to be given.[12] Thereupon, the ACR would be disclosed to the officer concerned,[13] who would then have the ability to file a statutory representation, if aggrieved by the final grading.[14] The same would invite the comments of the Reporting Authority[15] and the Reviewing Authority,[16] prior to placing the representation before the Accepting Authority for decision.[17] Notwithstanding this, the officer would have the option of an appeal before the Civil Services Board[MOU1] , if still unsatisfied.[18]
Herein, Dr. Khemka’s grouse was three-fold. First, that the Chief Minister (Accepting Authority) had failed to record his remarks within the prescribed timeframe of 15 days.[19] Second, that the Chief Minister had unfoundedly downgraded the Cabinet Minister’s (Reviewing Authority) assessment, holding the same to be “exaggerated”. Third, when Dr. Khemka preferred his statutory representation, the Chief Minister pocket vetoed it. Despite the statutory timeframe of 30 days,[20] the Chief Minister did not decide the representation for over 8 months. Failing such decision by the Chief Minister, the Civil Services Board could not exercise its appellate jurisdiction over the matter. Left with no avail, Dr. Khemka approached the Central Administrative Tribunal.[21]
A Statutory Stalemate and the Goldilocks Zone The Tribunal, whilst allowing the Chief Minister’s remarks outside the timeframe,[22] construed that although Rule 7(1) provided the prescribed window of 15-days, the same could be dilated till the 31st of December under Rule 5(1).[23] It must be noted that while Rule 7(1) was an enabling provision specific to the Accepting Authority, Rule 5(1) was a disabling provision general to the finalisation of the ACR. The Tribunal erroneously stretched the confines of the enabling provision to the confines of the disabling provision, which could only happen in the absence of specific prescription under the Rules, and not circumstantially. Interestingly, the Tribunal washed away Rule 7(1) without reading it down through a liberal interpretation (as done by the High Court subsequently); but by reading it strictly, albeit harmonizing it erroneously with Rule 5(1). Notwithstanding this, either by stroke of happenstance or callousness, no finding was given on the second and third grievances.
In writ proceedings, the Punjab and Haryana High Court carte blanche held that the timeframes were not water-tight compartments, and flexibility under Rule 7(1) was permissible. Nothing was said of the dilation under Rule 5(1); perhaps because once Rule 7(1) was read down, there was no need to locate supernumerary powers under Rule 5(1). Hence, both forums allowed the first act of the Chief Minister through divergent interpretations; a sort of statutory stalemate. This divergence between the ‘bright-line’ approach of the Tribunal,[24] and the ‘blurred-line’ approach of the High Court,[25] exemplified the lack of cohesive statutory interpretation one oft faces in Service Law. In my opinion, both interpretations were equally inept. They deviated from the plain and literal meaning of the statute, despite the lack of any ambiguity. The Tribunal’s dilation was a technical attempt to assuage the statutory rigour, by finding supernumerary powers within the Rules, where none existed. The High Court’s interpretation was typical of not ‘over-reading’ the statute, but ‘under-reading’ it. Perhaps both forums were aiming for the same effect — to not allow the Rules to strangulate over-burdened public offices.[26] However, canons of statutory construction are not partial to a pick-and-choose application to suit pre-determined results, something the Indian courts observe with little restraint.
Interestingly, in an analogous case, the Guwahati High Court[27] had held such timeframes as binding, declaring any action taken beyond such temporal threshold to be a nullity.[28] This in my opinion, was the ‘correct reading’ of the Rules — the plain and literal meaning — neither over, nor under— the Goldilocks zone. In one of my other cases before the Delhi High Court,[29] parity was claimed in terms of treatment qua this Guwahati High Court judgement. Ultimately, the Delhi High Court allowed that petition, wherein the Union’s appeal was dismissed by the Supreme Court.[30]
To Bell the Cat and Bellow the Master Dr. Khemka’s petition implored the High Court to fill in the void qua the second and third issues, which had been omitted from consideration by the Tribunal. Here, the High Court was faced with its most daunting challenge; to substantively review[31] the Chief Minister’s grading, by showing the same to be unfounded or malicious. Whilst not much was said directly on the Chief Minister’s illegality, the High Court, highlighting the need to protect honest and upright officers from political vagaries, observed that integrity in political and administrative institutions was running deplete.[32] Hence, the second issue qua the Chief Minister’s grading being unfounded was determined in Dr. Khemka’s favour. The same, in my opinion, was exemplary of fine judicial statesmanship — to say things without uttering them out loud.
Such reflection, perhaps uncomfortable for doctrinal lawyers as a political thicket, allows for a deeper dispensation of equity in personam, which is otherwise lost in the caucus of rules being mechanically applied in rem. In realpolitik terms, one cannot omit political implications of judicial verdicts, evermore so in Public Law. While judges usually refrain from intervention in non-judicial realms, Service Law forces the court’s hand, given its inextricable political filiality. Therein, judicial reflections are modulated to read ‘between-the-lines’ — to canvas a non-legal issue with purposive cognizance.[33] Yet it brings into question the dichotomy previously pointed out between a precedential court[34] and a purposive court.[35] However, as I believe, the High Court acted not purposively, but inquisitorially.[36] Certainly not being a black sheep, the decision of the Punjab and Haryana High Court was soon followed by the Delhi High Court,[37] which was later confirmed by the Supreme Court.[38]
When Mum’s the Word Consequent to the second finding in Dr. Khemka’s favour, the petition was allowed.[39] Yet, like the Tribunal, even the High Court omitted to expound upon the third issue concerning the Chief Minister’s deliberate refusal to decide the statutory representation. Though it was matter-of-factly stated that the Chief Minister had not decided Dr. Khemka’s Representation, there was no determination of the pleadings qua such egregious dereliction constituting misfeasance in public office.[40]
While it would have been a spectacular sight to behold the highest political functionary being tried for misfeasance, the more belligerent critics would hold those days to close after Justice J.L. Sinha[41] and Chief Justice M.N. Venkatachaliah.[42] To the Court’s defence, the Petition having succeeded on the second ground, perhaps did not merit further interference; however, as a rule of adjudication, the Court was bound to give finality to all issues before it.[43] Why the High Court chose to abandon the third issue is speculative at best, sometimes the best thing to say is to not say anything. To quote the Court “…some of the matters are better understood than said in expressed words…”
Service Law offers a plethora of interpretative dogmas, often demanding pervasive legal determination whilst carefully steering away from political controversy. Courts have pragmatically modulated the Rules to reach amenable ends, for a straight-jacket formula is lacking and foolhardy. However, the realpolitik in adjudication is to identify what the courts choose to determine, and what they choose to omit. And what could read so clamorous in text, would most certainly be a riot in practice!
* Lawyer at the Punjab and Haryana High Court; NALSAR (2017), Cambridge (2018). Gratitude towards Ritesh Mukherjee and Charu Tyagi, my wise colleagues at the Delhi High Court, who helped proof this.
[1] Advanced Law Lexicon, 6th Edition, Volume 3, Page 4246 — The expression that “a civil servant held tenure at the pleasure of the crown” means that the tenure of office of a civil servant, except where it was otherwise provided by the statute, could be terminated at any time without cause assigned. State of Bihar v Abdul Majid AIR 1954 SC 245, 250. [2] Commencing with the great legal tradition of the Magna Carta in 1215, seeking to delimit the powers of the monarch. [3] King’s Bench (1703) 92 ER 126. [4] As Counsel representing Dr. Ashok Khemka, before the Tribunal and the High Court. [5] Punjab and Haryana High Court, Dr. Ashok Khemka v State of Haryana & Ors. CWP 317 of 2019 (O&M). [6] (2008) 8 SCC 725 (Supreme Court). [7] Paragraph 19 — “…non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation…” [8] Paragraph 40 — “…when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.” [9] Rule 5(1) 2nd Proviso. [10] Rule 4(1). [11] Rule 6(1). [12] Rule 7(1). [13] Rule 9(1). [14] Rule 9(2). [15] Rule 9(5). [16] Rule 9(6). [17] Rule 9(7). [18] Rule 9(8). [19] Rule 7(1)— “The accepting authority shall within the timeframe specified in Schedule 2, record his remarks on the performance appraisal report and may accept it, with such modifications as may be considered necessary, and countersign the report.” [20] Rule 9(7)— “The accepting authority shall consider the comments of the officer reported upon, the views of the reporting authority and the reviewing authority and after due consideration may accept them and modify the performance appraisal report accordingly and the decision and final grading shall be communicated to the officer reported upon within fifteen days of receipt of the views of the reviewing authority.” [21] Dr. Ashok Khemka v Chief Secretary of Govt. Haryana OA 1058 of 2018. [22] Supra Footnote No. 20. [23] Rule 5(1), Second Proviso: “Provided further that if a performance appraisal report for a financial year is not recorded by 31st of December of the year in which the financial year ended, no remarks may be recorded thereafter and the officer may be assessed on the basis of the overall record and self-assessment for the year, if he has submitted his self-assessment on time.” [24] Rule 7(1) not diluted, but enjoined with dilatory powers under Rule 5(1). [25] Rule 7(1) diluted, without the need to trace supernumerary powers under Rule 5(1). [26] It must be noted that the 2007 Rules applied alike to all authorities, ranging from the young All India Service Officers to the apex authority i.e. the Chief Minister. [27] Deep Chand Nag v. Union of India & Ors. WP(C) 2136 of 2016 [28] Paragraph 13—“As the entries of the Accepting Officer was made beyond the period of one month and further, such entries of the Accepting Officer which was made on 08-03-2006 was communicated to the petitioner only on 28-09-2010, this Court is of the considered opinion that the DPC should have taken into consideration such factual aspects of the matter and should have rejected the entries made by the Accepting Officer.” [29] Rajesh Rai v. Union of India & Ors. CWP 3585 of 2019. [30] Union of India & Ors. v. Rajesh Rai Etc. SLP(C) 11796-11796 of 2020. [31] In contradistinction of a processual review, which is where Public Law ideally draws its line. [32] “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. 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 protection from being damaged by recording adverse remarks against the record.” [33] Such a power of ‘cognizance’ qua non-legal facts is reflected under Section 56 of the Indian Evidence Act as “facts judicially noticeable”; however, the scope of the same has been greatly restricted under Section 57. Not that in Writ jurisdiction the Constitutional Courts are limited. [34] One which follows the established progression among the canons of construction. [35] One which chooses its canon based upon the desired interpretation. [36] Where the Court sits in active discovery of fact rather than the passive determination of veracity. [37] Paragraph No. 30, Rajesh Rai v. Union of India & Ors. CWP 3585 of 2019 and Raj Kumar v. Union of India & Ors. CWP 6087 of 2019. [38] Supra Footnote No. 31. [39] Though the same has been challenged before the Supreme Court in State of Haryana v. Ashok Khemka & Anr. SLP(C) 13972 of 2019. [40] Paragraphs No. 15.8, CWP 317 of 2019—“That such arbitrariness is indefensible in Common Law both under the Law of Torts—Clapham Omnibus principle; and the Scope of Judicial Review under Administrative Law— Wednesbury Principles, as laid down by the Hon’ble King’s Bench in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, and later expanded upon by Lord Justice Diplock in the Hon’ble House of Lords in Council of Civil Service Unions v. Minister for the Civil Service (1984) UKHL 9. Rather, such laxity, as demonstrated by the Accepting Authority, constitutes the Tort of Misfeasance in Public Office as held by the Hon’ble House of Lords in Three Rivers District Council & Ors. v. Governor and Company of the Bank of England (2003) 2 AC 1.” [41] Held Indira Gandhi (the then sitting Prime Minister of India) guilty of electoral malpractice in the 1971 General Elections. Allahabad High Court, Raj Narain v. Smt. Indira Nehru Gandhi & Anr. EP 5 of 1971. [42] Held Kalyan Singh (the then sitting Chief Minister of Uttar Pradesh) guilty of contempt of court in the Babri Masjid dispute. Supreme Court, Mohd. Aslam v. Union of India & Ors. 1994 SCC (6) 442. [43] Order XIV Rule 2 Code of Civil Procedure 1908. Also expounded upon by the Supreme Court in Paragraph No. 46 in Nusli Neville Wadia v. Ivory Properties & Ors. SLP(C) 31982—31983 of 2013.
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