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Above: Ashok Khemka/Photo by Biswarup Ganguly/Wikimedia Commons

The seasoned bureaucrat Ashok Khemka is not one to take things lying down and has now confronted Haryana Chief Minister Manohar Lal Khattar for downgrading his performance appraisal reports

By Vipin Pubby in Chandigarh

The 1991 batch Haryana cadre IAS officer, Dr Ashok Khemka, has been a rebel with a cause and often a thorn in the flesh of the high and the mighty who think they can get away with anything. No wonder they try their best to keep him at bay and place him in positions where he can do the “least damage”, but the irrepressible Khemka can’t be put down despite the over 45 transfers he has had to endure during his 30 years’ service.

Former Haryana Chief Minister Bhupinder Singh Hooda learnt it the hard way when the officer hit where it hurt the most. He did so by cancelling the mutation of land in a deal involving Robert Vadra, son-in-law of then Congress President Sonia Gandhi. The action was hailed by her political rivals, particularly the BJP, but the cases are still pending at various stages.

The current chief minister, Manohar Lal Khattar, the first BJP chief minister of the state, is now on the radar of Khemka for reasons of his own making. Overruling all the outstanding performance appraisal reports (2016-17) given by the reporting and reviewing authorities of the officer, the chief minister downgraded the reports without giving any substantive reasons which had a direct bearing on the promotion and future career prospects of the officer. While the reviewing authority had given him an overall grade of 9.92, Khattar as the Accepting Authority brought it down to 9.00.

Khemka’s representations to the chief minister remained unheeded and he was forced to knock at the doors of the Punjab and Haryana High Court which rejected Khattar’s “adverse” remarks and directed restoration of the grade given by the reporting and reviewing Authorities. However, it’s been over three months since the High Court orders, but the state government has done nothing.

In his representation to the chief minister, Khemka expressed his “deep disappointment and aguish for non compliance” with the orders of the High Court. “This at best is a perfunctory and callous approach towards judicial directions, or at worst is a wilful contempt of the express order of the Hon’ble High Court. Neither of which is permissible legally or morally,” he said, and added that “as the chief minister of the state, you are the commander-in-chief of the executive. It is your political and moral duty to ensure that the state fulfills the mandates cast upon it by the courts. Laxity, especially towards court orders, sends an implicit message that the high and mighty consider themselves above the rule of law.”

He underlined that as the High Court orders had impugned and quashed the chief minister’s own orders, “it is your legal and moral duty to ensure that the compliance of the order is met at the earliest.” He even took on the chief secretary, stating it was “the duty of the Chief Secretary to ensure compliance….Weakness plagues the disposition of the executive, ever more so in this case, because of the lure of a post-retirement sinecure. Personal measures foreclose persons from fulfilling their mandate, especially when large political reward lies for not performing one’s duty. Nations fail when institutions fail. I implore you therefore to direct compliance with the court order at the earliest,” he wrote in his usual hard-hitting style.

The officer had earlier moved the Administrative Tribunal which rejected his plea on technical grounds and took the stand that the chief minister was vested with the final authority. He then moved the Punjab and Haryana High Court seeking that the remarks made by Khattar be expunged and the overall grade of 9.92 as given by the Reviewing Authority be restored.

In its judgment on March 18, 2019, Justices Rajiv Sharma and Kuldip Singh noted that the Reporting Authority (minister concerned) wrote about the qualities and strength of the officer, stating that Khemka “is well known in the country for effective professional integrity under very difficult circumstances. Despite being in a relatively unimportant post, 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, Ashok Khemka inspires many young officers. He has immense potential which can be utilized better by the Government”.

The Reporting Authority gave the overall grade on the scale of 1-10 as 9.92 to Khemka. However, the Accepting Authority, the chief minister, differed with the opinion of the Reviewing Authority and recorded that this Authority had “differed with the Reporting Authority but not given any reason for the same”. The chief minister mentioned that the Reviewing Authority’s comment that the officer “has shown excellent achievements under sever constraints” contained in para 3 of Section IV can be so construed. But this is not substantiated as neither the reviewing authority nor the officer himself has specified any constraint, what to talk of “severe constraints”. The chief minister added that he thought that the “report of the Reviewing Authority is slightly exaggerated” while downgrading the assessment to 9.00.

The division bench in its judgment said 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 the 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”.

It further mentioned that reference had been made to “excellent achievements under severe constraints”. The bench further said: “We are of the view that some of the matters are better understood than said in expressed words”.

It observed that “an honest and upright officer works under the political leadership….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 a 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”.

It went on to say: “Consequently, we are of the considered view that leaving aside the timeframe, 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 timeframe 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.”

It ruled that 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”.

A day after the orders were delivered, Khemka wrote to Chief Secretary DS Dhesi seeking immediate compliance with the order, but there was no response. The government, in the meantime, sought to move the Supreme Court, but its petition was rejected on technical grounds by the registrar of the apex court. The state government has sought another three months to file a revised petition.

The matter rests there, but Khemka is unlikely to let it rest for long.

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