SC sets aside High Court order expunging remarks of Haryana CM in IAS Ashok Khemka's appraisal report

New Delhi: The Supreme Court on Monday set aside an order of the Punjab and Haryana High Court expunging the 'adverse remarks' made by Haryana Chief Minister Manohar Lal Khattar in the annual performance appraisal report 2016-17 of senior IAS officer Ashok Khemka.

Khemka had hit the headlines in 2012 after cancelling the mutation of a land parcel following a deal between Congress leader Sonia Gandhi's son-in-law Robert Vadra's Skylight Hospitality and real estate major DLF.

A bench of Justices Vikram Nath and Satish Chandra Sharma noted that the accepting authority (Haryana Chief Minister) is yet to take a decision on the representation made by Khemka for the remarks and overall grading.

'We are of the opinion that the division bench of the high court erred in law. Accordingly, we set aside the judgement of the division bench of the high court. Additionally, as we have been informed that the Accepting Authority is yet to take a decision on the underlying representation, we direct the Accepting Authority to take a decision on the Underlying Representation under Rule 9(7B) of the PAR (Performance Appraisal Report) Rules within a period of 60 days from the date of pronouncement of this judgement,' the bench said.

The top court granted liberty to the 1991 batch IAS officer, currently a principal secretary rank official in the state government, to take recourse to remedies as may be available under law.

The bench allowed the appeal of the state government, which challenged the March 18, 2019 order of the high court in which it was observed that Khemka's 'integrity is beyond doubt' and that a 'person of such professional integrity needs to be protected...'.

Khemka had sought expunction of the 'adverse remarks' made by Khattar in his annual performance appraisal report and restoration of the overall grade of 9.92 as was given by state health minister Anil Vij, who was the reviewing authority.

The bureaucrat moved the high court challenging the December 3, 2018 order of the Chandigarh bench of the Central Administrative Tribunal (CAT), which had dismissed his plea for expunging the remarks.

The top court, in its 18-page verdict penned by Justice Sharma, said the judiciary must exercise restraint and avoid unnecessary intervention qua administrative decision(s) of the executive involving specialised expertise in the absence of any mala-fide and/or prejudice.

'Accordingly, it is our opinion that the high court entered into a specialised domain i.e., evaluating the competency of an IAS officer by way of contrasting and comparing the remarks and overall grades awarded to Respondent No. 1 (Khemka) by (i) the reporting authority (chief secretary) (ii) the reviewing authority (health minister) and (iii) the accepting authority (chief minister), without the requisite domain expertise and administrative experience to conduct such an evaluation,' it said.

The bench said the high court ought not to have ventured into the said domain, particularly when the accepting authority is yet to pronounce its decision on the representation.

'The overall grading and assessment of an IAS officer requires an in-depth understanding of various facets of an administrative functionary such as personality traits, tangible and quantifiable professional parameters which may include inter alia the competency and ability to execute projects; adaptability; problem-solving and decision-making skills; planning and implementation capabilities; and the skill to formulate and evaluate strategy,' it said.

'Accordingly, in our considered view, the process of evaluation of an IAS officer, more so a senior IAS officer entails a depth of expertise, rigorous and robust understanding of the evaluation matrix coupled with nuanced understanding of the proficiency required to be at the forefront of the bureaucracy,' it said.

This administrative oversight ought to have been left to the executive on account of it possessing the requisite expertise and mandate for the said task, the bench said.

The top court rejected Khemka's submission that prejudice has been caused to him and said he was awarded an overall grade '9' which undisputedly forms a part of the 'outstanding' grade–the highest category awarded to an IAS officer.

It said since the Accepting Authority has met the timelines prescribed under the PAR Rules and in view of the compliance with mandatory timelines prescribed under the said rules 'we find no reason to expunge the remarks and overall grades awarded to Respondent No. 1 by the Accepting Authority on the PAR on account of a contravention of the timelines prescribed under the Schedule'.

On June 8, 2017, Khemka was appraised by the state's Chief Secretary and was awarded an overall grade of 8.22. Subsequently, on June 27, 2017, a divergent view was taken by the reviewing authority i.e., the state health minister who upgraded his overall grade to '9.92'.

On December 31, 2017, the chief minister, the accepting authority, rejected it and downgraded Khemka's overall grade to '9'.