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2001 DIGILAW 317 (JK)

Jai Hari Ram v. Union Of India

2001-12-03

T.S.DOABIA

body2001
1. Petitioner is aggrieved of the fact that grading which was given to him by an officer who was to write his Annual Confidential Report were changed by the reviewing authority and in doing so his performance has been brought down as compared with his previous assessment years. What is stated in paras 6 and 7 of the petitioner is a material for the disposal of this writ petition. These paras as reproduced below: 6. That in the year 1981 the petitioner earned 4 points in his ACR and in the year 1982 the petitioner earned 3 points and in year 1983 the petitioner earned 4 points and in the year 1984 the petitioner has been awarded 3 points. The petitioner has disputed the points awarded for the year 1984 and 1985 on very substantial grounds. 7. That the ACRs for the year 1984 were properly initiated and the initiating office has awarded 4 points on the basis of the performance of the petitioner and the Reviewing Officer, without any pen-picture, has reduced 4 points to 3 points which have been disputed by the petitioner as the same has been done by the Reviewing Officer (Respondent No. 4) in violation of the standing instructions and provisions contained in the Army Headquarters letter No. 48854/Org. 8 (I of R) (a) dated: 19 May 81. A copy of the letter is filed as annexure PA to this petition for the perusal of this Hon™ble Court. The Reviewing Officer has not shown any reason as to why and on what reasons the points awarded by the Initiating Officer have been reduced and the said grading awarded by the Initiating Officer cannot be reduced unless the reasons are endorsed by pen-pictures and highlighting the weakness of the individual. As such the grading reduced by the Reviewing Office (Respondent No. 4) is without jurisdiction and violative and a serious discrimination has been done to the petitioner. Petitioner accordingly submits: (i) that the reviewing authority could not reduce marking. (ii) that if this was to be done and if this was to be lowered then reason for this should have been given. 2. It is submitted that this statement is supported by Government Circular issued in this behalf. One such circular is attached with the file as annexure PAA. Particular reliance is being placed on para 2 of the above annexure. 2. It is submitted that this statement is supported by Government Circular issued in this behalf. One such circular is attached with the file as annexure PAA. Particular reliance is being placed on para 2 of the above annexure. For facility of reference this is also being reproduced below: 2. Although comprehensive and clear instructions have been issued regarding endorsement of pen-picture and box grading in the Annual Confidential Reports (ACRs) of JCOs and NCOs, the number of complaints and representations has been on the increased. It has been brought out that some of the Reviewing and Superior Reporting Officers do not endorse any pen-picture but award the box grading. The grading thus awarded is at times not in the general run of the marks awarded in the ACRs. This leads to statutory complaints and representations stating that the Reviewing Superior Reporting Officers have not been objective in their reporting and that they have arbitrarily graded the individual without endorsing the pen-pictures highlighting any weakness of the individual. In such cases if the pen-picture brings out the specific observations made by them to support their assessment, the complaints would not arise.� 3. In additions to this it is submitted that report was written by an officer who had not seen the performance of the petitioner for 90 days and therefore, said officer could not write Annual Confidential Report. For this reliance is again being placed on para 8 of the army order and this has been quoted in para 9 of the writ petition. For facility of reference para 9 of the writ petition is also being reproduced below: 9. That the criteria fixed by the respondents No. 1 and 2 for initiating the ACRs of an individual is contained in para 8 of an Orders issued by the Chief of the Army Staff under heading AO 113/79-Annual Confidential Reports J.C.Os. Para 8 is relevant which is reproduced as under:- 8. On 1st Jan. every year the immediate superior officer under whom the JCO has physically served for a minimum period of 90 days will be responsible to initiate the Annual Confidential Report in duplicate. Reviewing Officers will endorse their own assessments on the Annual Confidential Reports in additions to indicating the JCOs suitability or otherwise for promotion. Endorsements such as I agrees� or A concurs� are not appropriate and should not be made. Reviewing Officers will endorse their own assessments on the Annual Confidential Reports in additions to indicating the JCOs suitability or otherwise for promotion. Endorsements such as I agrees� or A concurs� are not appropriate and should not be made. On posting to a new unit/Formation if a JCO does not complete a period of 90 days on 1st Jan. under his immediate superior officer, his Annual Confidential Report may be initiated by his previous Unit.� 4. Stand taken by the respondent is that reviewing authority could reduce the points. With regard to para 9, the assertion that the officer who had written Annual Confidential Report never had the occasion to see his work for the period of 90 days has not been denied. 5. After going through the file I am of the opinion that there is merit in the submission made by the learned counsel for the petitioner. If performance of the petitioner was found to be lower than his previous performance then this aspect of the matter was supposed to be brought to the notice of the petitioner and order passed should have been supported by some reasoning. This is supported by instructions quoted above and also by the decision of the Supreme Court of India in case reported as U.P. Jai Nigam and Ors. Vs. Prabhat Chandra Jain and Ors., AIR 1996 SC 1661. Relevant part of the above being quoted below: But if the graded entry is of going a step down like falling from very good to good that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned and inform him of the change in the form of an advice. If the variation warranted be not permissible then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. If the variation warranted be not permissible then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adversement must in all events be not reflected in such variations as otherwise they shall be communicated as such, It may be emphasized that even; a positive confidential entry in a given case ca n perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have see the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain." 6. Above factors are missing in this case. Therefore, order passed by the reviewing authority by which grading of the petitioner has been reduced cannot be sustained. Again the annual confidential report which has been written by an officer who had not seen his work for 90 days can also not be sustained. This petition is allowed. The respondents would reconsider the issue. After reconsidering the issue if petitioner becomes eligible then notional and monetary benefits be given to him. This would be done within a period of three months from the date copy of the order passed by this court is made available by the petitioner to the respondents. Disposed of as such.