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2007 DIGILAW 181 (GAU)

Jatindra Nath Sarma v. State of Assam

2007-03-02

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. The petitioner seeks redress against his perceived denial of timely promotion to the post of Executive Engineer in the Public Works Department, Government of Assam (hereafter referred to as the Department) and the resultant detrimental consequences jeopardizing his service career. 2. I have heard Mr. K.H. Choudhury, Sr. Advocate assisted by Mr. U.K. Nair, Advocate for the petitioner and Mr. S. Saikia, learned Standing Counsel, Public Works Department for the respondents. 3. The fascicule of facts depicting the rival stands deserve attention at the outset. The petitioner who joined the department as Assistant Engineer in the year 1979 was promoted as Assistant Executive Engineer, Public Works Department, S & T Division, Guwahati, in 1987. In the gradation list of such officers, he was placed at Sl. No. 40. During the year 1999/2000, a selection was held for promotion to the next higher post of Executive Engineer. As the number of vacancies therefore was 19, the zone of consideration stretched to 76 and he was therefore comfortably within it. 4. The Public Works, Irrigation and Flood Control Departments had adopted a set of guidelines for effecting promotion to various posts including that of the Executive Engineers. Marks to be awarded for different gradings in the ACRs were determined and the candidates on the basis of the marks to be scored were classified in three categories. Whereas candidates securing 16 marks and above were to be included in Category I, those obtaining between 8-16 were to be placed in Category II. The candidates scoring less than 8 were to be included in Category III. The guidelines determined that candidates in Category I would enjoy a preference over those in Category II and those only in Category I and II would be eligible for promotion. These guidelines were adopted in the meeting of the representatives of the three departments held on 13.3.1994 and were circulated under memo No. 4689/Pt./6-A dated 21.5.1994. 5. In the selection that was held during 1999-2000, the case of the petitioner along with other Assistant Executive Engineers was considered. In the process the ACRs for five previous years i.e. 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99 were considered. According to the petitioner, his gradings in the aforementioned ACRs and the marks on the basis of the guidelines to which he was entitled are as follows. In the process the ACRs for five previous years i.e. 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99 were considered. According to the petitioner, his gradings in the aforementioned ACRs and the marks on the basis of the guidelines to which he was entitled are as follows. Year Grading Marks 1994-95 Very good 3 1995-96 Outstanding 4 1996-97 Outstanding 4 1997-98 Very good 3 1998-99 Very good 3 Total 17 6. The petitioner has thus maintained that in terms of the score in accordance with the guidelines, he deserved to be placed in Category I. However, in the notification No. Con/69/85/Pt./273 dated 3.2.2000 notifying the approved select list of 38 candidates, the name of the petitioner did not figure. Being aggrieved, he submitted a representation on 11.2.2000 with the Commissioner and Secretary to the Government of Assam, Public Works Department which, however, remained undisposed. On queries being made, he was informed that his ACR for the year 1995-96 had not been acted upon by the Selection Committee. 7. While the matter rested at that Shri Ajoy Ch. Bordoloi whose name appeared at Sl. No. 1 of the select list was promoted on 1.7.2000 along with others on the basis of the impugned select list to the cadre of Executive Engineer against the vacancies for the year ending 31.3.1999. With reference to the minutes of the Selection Committee held on 31.12.1999 culminating in the aforementioned select list, the petitioner has asserted his gradings "Oustanding" for the periods 1995-96 and 1996-97 had been wrongly moderated to "Very Good" by the Selection Committee as a result whereof, he was denied a berth for promotion. According to him, had his gradings of ''Oustanding" been maintained, with the marks in terms of the guidelines framed, he would have been graded in Category I ensuring his promotion. 8. The petitioner, however, subsequent thereto was promoted as Executive Engineer by notification dated 3.1.2002 following his selection therefore on 10.8.2001. Shri Ajoy Ch. Bordoloi, was further promoted to the cadre of Superintendent Engineer 3.1.2002 he, being the only Officer to be so elevated from amongst those who had been promoted as Executive Engineer on the basis of the select list dated 3.2.2000. In the gradation list of Superintending Engineers that followed, the name of Shri Ajay Ch. Bordoloi figured at Sl. No. 25. He was further promoted as Additional Chief Engineer on 26.12.2003. In the gradation list of Superintending Engineers that followed, the name of Shri Ajay Ch. Bordoloi figured at Sl. No. 25. He was further promoted as Additional Chief Engineer on 26.12.2003. Subsequent thereto, the petitioner as well was promoted as Superintending Engineer on 25.10.2004. 9. The grievance expressed by the petitioner is against the denial of his due promotion to the post of Executive Engineer, Superintending Engineer and Additional Chief Engineer in view of the curtailment of his gradings in his ACRs for the years 1995-96, 1996-97 from "Outstanding" to "Very Good". 10. The official respondents while admitting that the petitioner was within the zone of consideration for promotion as Executive Engineer on 31.12.1999, the date of the meeting of the Selection Board insisted that the selection had been conducted in accordance with the Assam Engineering (Public Works Department) Service Rules, 1978 as amended in 1983 (hereafter referred to as the PWD Rules). They further admitted that the Selection Board had accepted the suggestions of the Technical Secretaries of the three Departments laying down a set of norms to be uniformly applied for selection of officers for different cadres in the technical departments. The marks in terms of the said guidelines visa-vis gradings in the ACRs were specified as hereunder. Gradings Marks Below average 0 Average 1 Good 2 Very good 3 Outstanding 4 11. The classification of the officers in Category I, II and IE as stated in the petition was also admitted. The respondents pleaded that the Selection Board examined the ACRs of the candidates for five years ending 3/95 to 3/99 and contended that on the basis of the assessment made, the petitioner was included in Category n. The number of vacancies being 19, the appointing authority published the select list containing the names of officers double the said number and as the petitioner's name appeared at Sl. No. 40 in order of preference, he was not included in the list of promotees notified. The answering respondents clarified that on the basis of the relevant ACRs, he was awarded less than 16 marks. They endorsed the select list dated 3.2.2000 as being prepared in accordance with the norms drawn up after observing all necessary formalities. 12. No. 40 in order of preference, he was not included in the list of promotees notified. The answering respondents clarified that on the basis of the relevant ACRs, he was awarded less than 16 marks. They endorsed the select list dated 3.2.2000 as being prepared in accordance with the norms drawn up after observing all necessary formalities. 12. In his additional affidavit, the petitioner while setting out the composition of the Selection Board averred that none of the members thereof had any occasion of overseeing his works so as to evaluate his performance during the relevant period and more particularly for the years 1996-97. 13. Mr. Choudhury in the background of the above pleadings has argued that the Selection Board acted beyond its authority in lowering the petitioner's gradings in the ACR for the years 1995-96 and 1996-97 thus relegating him in order of merit to his detriment and prejudice. According to the learned Sr. Counsel, no reason having been recorded by the Selection Board for interfering with the petitioners grading of "Oustanding" for the year 1996, it is nonest in law. The decision to down grade the petitioner on the ground that the succeeding incumbent as the Secretary of the Department had acted as the accepting authority for the period under report is per se untenable in face of the relevant provisions of the Assam Services (Confidential Rolls) Rules, 1990 (hereafter referred to as the 1990 Rules), he urged. Referring to Schedule II of the 1990 Rules, Mr. Choudhury has urged that no requirement of recording reasons for grading a Technical Class II Officer as "Outstanding" having been mandated, the non-acceptance of the said grading by the Selection Board on the purported ground that it was not supported by "requisite justification" was apparently erroneous. The learned Sr. Counsel drawing sustenance from Rule 8 (2) (iii) of the said Rules contended that the grading endorsed by the Reviewing Officer would become final if the same remains to be accepted due to the retirement of the accepting officer then in office. He maintained that the decision of the Selection Board to assess the petitioner's ACRs on the basis of "average of his gradings in the earlier and subsequent years" was apparently absurd. 14. The learned Sr. He maintained that the decision of the Selection Board to assess the petitioner's ACRs on the basis of "average of his gradings in the earlier and subsequent years" was apparently absurd. 14. The learned Sr. Counsel was particularly critical about the approach of the Selection Board in embarking on a re-evaluation of the petitioner's ACRs which according to him, was impermissible under the Rules more particularly Rule 13 thereof. Not only did the members of the Selection Board had no occasion to assess the performance of the petitioner during the relevant period, the process undertaken by it was not only antithetical to the letter and spirit of the Rules but also mutilative of the criteria laid down for promotion by the concerned Technical Departments. Mr. Choudhury, therefore, urged that the petitioner is thus entitled to have his promotion as Executive Engineer traced back to 1.7.2000 the date of promotion of Shri Ajoy Ch. Bordoloi and to be further considered for promotion to the higher posts on the basis of his consequential seniority. In support of his submissions, Mr. Choudhury placed reliance on the decision of this Court in Heman Bihari Singh v. State of Manipur and Anr. 2004 (1) GIT 15. 15. Mr. Saikia as against this mounted his challenge to the maintainability of the writ petition contending that the same ought to be rejected in limine in absence of necessary parties. As persons likely to be affected in the event of the petition being allowed have not been impleaded, no relief as prayed for can be granted. Drawing the attention of this Court to Section 13 of the Rules, the learned Counsel has argued that thereby the Selection Board is endowed with the authority to independently assess the candidates to measure their suitability for promotion even by departing from the gradings awarded to them in their ACRs. The Selection Board having been entrusted with the duty of recommending candidates, considered to be suitable in terms of the Rules, it cannot be expected to two mechanically the departmental assessment of the candidates. For this neither any personal association of the members of the Selection Board with them nor a first hand knowledge of their performance is an essentiality. The Selection Board having been entrusted with the duty of recommending candidates, considered to be suitable in terms of the Rules, it cannot be expected to two mechanically the departmental assessment of the candidates. For this neither any personal association of the members of the Selection Board with them nor a first hand knowledge of their performance is an essentiality. The Selection Body being constituted of experts entrusted with the role of gauging the suitability of the candidates for promotion, it must be conceded comprehensive powers lest the process of selection be rendered meaningless. 16. Mr. Saikia dismissed the contentions based on the 1990 Rules contending that those were only relevant for the purpose of preparation and maintenance of the ACRs and cannot dictate the scope and extent of the powers of the Selection Board. According to him, the guidelines, if in conflict with the Rules would have to make way for the latter. He asserted that the selection held on 31.12.1999 had been conducted strictly in accordance with the Rules and the petitioner not having questioned either the constitution of the Board nor alleged malafide, the assailment thereto is per se unsustainable. In the absence of any ground for judicial review in exercise of the powers of this Court under Article 226 of the Constitution of India the petition is liable to be dismissed. To buttress his arguments, Mr. Saikia placed reliance on the decision of the Apex Court in Dalpat Abasaheb Solunke and Ors. v. Dr. B.S. Mahajan and Anr. (1990) II LLJ 470 SC, National Institute of Mental Health and Neuro Science v. Dr. K. Kalyana Raman and Ors. Nutan Arvind (Smt.) v. Union of India and Anr. [1996] 1 SCR 491, Union of India and Ors. v. Lt. General Rajendra Singh Kadyan and Anr. (2000) 5 SLR 228, Syed T.A. Naqshbandi and Ors. v. State of Jammu & Kashmir and Ors. (2003) 9 SCC 592 , Union of India and Anr. v. Ashutosh Kr. Srivastava and Anr. AIR 2001 SC 4004 and of this Court in Ramen Ch. Kalita and Ors. v. State of Assam and Ors. 2003 (3) GLT 369 and Tractor & Farm Equipment Ltd. v. Secretary to the Government of Assam, Department of Agriculture and Ors. 2004 (1) GLT 117. 17. Mr. v. Ashutosh Kr. Srivastava and Anr. AIR 2001 SC 4004 and of this Court in Ramen Ch. Kalita and Ors. v. State of Assam and Ors. 2003 (3) GLT 369 and Tractor & Farm Equipment Ltd. v. Secretary to the Government of Assam, Department of Agriculture and Ors. 2004 (1) GLT 117. 17. Mr. Choudhury in reply has brushed aside the plea of non-maintainability of the writ petition contending that as none of the officers promoted as Executive Engineer on the basis of the impugned select list except Shri Ajay Ch. Bordoloi had been promoted to the rank of both Superintending Engineer and Additional Chief Engineer before him, no fault can be attached to the writ petition for not impleading them. 18. Before dealing with contentions on merit, the plea with regard to the maintainability of the writ petition may first be attended to. Admittedly, the officers promoted to the post of Executive Engineer on the basis of the impugned selection have not been arrayed as respondents. The facts narrated in the writ petition disclose that promotions to the post of Executive Engineer and higher posts had been made thereafter based on subsequent selections in course of which the petitioner had also been promoted. The pleaded assertion that except Shri Ajoy Ch. Bordoloi, none else had been promoted to the post of Superintending Engineer and above before the petitioner, having remained unrebutted, I am of the view that non-impleadment of the officers figuring in the select list dated 3.2.2000 is not fatal for the instant petition. Not only the cause of the selected candidates has been effectively and adequately espoused by the State respondents, in the above conspectus of facts they would not be adversely affected even if the issues raised are decided in favour of the petitioner. 19. This Court in Tractor and Farm Equipment Ltd., (supra), held that the principles of natural justice are of substantial relevance vis-a-vis the question of impleadment of a necessary party and that if a decision of a writ Court is likely to adversely affect him, he ought to be joined in the proceeding. In the factual premise of the instant case, the above ratio is of no avail to the respondents. 20. In the factual premise of the instant case, the above ratio is of no avail to the respondents. 20. The rival submissions bearing on the permissibility of interference with an entry in the confidential report by the Selection Board predicate a brief survey of both the Rules referred to hereinabove. The 1990 Rules framed under Article 309 of the Constitution of India, as its name suggests deal principally with the mode of preparation and maintenance of confidential reports. Rule 2(c) defines confidential report to be one as drawn up in terms of the procedure laid down in Rule 5. "Confidential Roll" has been described to mean the compilation of the confidential reports written on an employee and includes the following documents. (i) Letters of appreciation issued by the Government to the members of the Service. (ii) Copy of the order imposing on the members of the Service any of the penalties specified in the Assam Services (Discipline and Appeal) Rules, 1964. (iii) Copy of the Communication addressed to the member of the Service warning him or conveying the displeasure or reprimand of the Government. (iv) Record of the final result of the inquiry into the charges or allegations against the member of the Service mentioned in his confidential report. (v) Record about the approved course of study or training undertaken by the members of the Service. "Reporting Authority" and "Reviewing Authority" have been defined in Rule 2(f) and Rule 2(g) as hereunder. (f) Reporting Authority means the authority who was during the period for which the confidential report is written, immediately superior to the employee and such other authority as may be specifically empowered in this behalf by the Government. (g) Reviewing Authority means the authority who was, during the period for which the confidential report is written, immediately superior to the reporting authority and such other authority as may be specifically empowered in this behalf by the Government. 21. ACS-I Officers are to be assessed in the form as prescribed in Schedule I and officers in other categories of posts including Technical Services posts excepting the Police Services and Grade IV posts in the form prescribed in Schedule II. Rule 5 comprehends that a confidential report appraising the performance, character, conduct and qualities of every employee shall be written for each financial year, ordinarily within two months of the close of the said year at the latest. Rule 5 comprehends that a confidential report appraising the performance, character, conduct and qualities of every employee shall be written for each financial year, ordinarily within two months of the close of the said year at the latest. A chart of the Reporting Authority, Reviewing Authority and Accepting Authority in respect of various categories of employees is provided in Schedule IV of the said Rules. Sub-rule (6) of Rule 5 requires that if a Reviewing and/or Accepting Authority has seen the performance of an employee for a period of 90 days during the period for which the confidential report is to be written, in absence of the Reporting Authority and the Reviewing Authority as the case is, it may be written by the Reviewing Authority and/or Accepting Authority respectively. Under Rule 6, the Reviewing Authority or the Accepting Authority, as the case may be would not be competent to review any confidential report unless it has seen the performance of the employee for at least 90 days during the period for which the report has been written. Rule 8 enjoins that where the Accepting Authority writes or reviews the confidential report of any employee, it shall not be further necessary to review or accept any such report. Rule 8(2)(iii) further prescribes that in the event of the retirement of the Accepting Officer, the remarks of the Reviewing Officer would be final. 22. A comparison of the forms appearing in Schedule I and Schedule II of the Rules reveals that where as an ACS Class I Officer should not be graded "Outstanding" unless exceptional qualities and performance had been noticed clearly recording the grounds therefor, such a requirement is not prescribed while writing the confidential reports in the form under Schedule -II. The instructions appearing beneath the forms intended to guide the Officers writing the ACR, stipulate a full appreciation and assessment of the particulars indicated in the forms with the edict that the Reporting and the Reviewing Authority should be one with whom the Officer/Employee had rendered three months of continuous service. Exhaustive guidelines have been provided to analyze not only the actual nature of work done by the Officer/Employee but also his personal traits like intelligence, capacity for work, knowledge of Laws, Rules, Orders and Office Procedure, attendance, conduct, discipline and character. 23. Exhaustive guidelines have been provided to analyze not only the actual nature of work done by the Officer/Employee but also his personal traits like intelligence, capacity for work, knowledge of Laws, Rules, Orders and Office Procedure, attendance, conduct, discipline and character. 23. The provisions of the 1990 Rules, therefore, unequivocally demonstrate that the assessment reflected in the grading in the ACR of the Officer/Employee concerned would not only be performance based but also on a due evaluation of his personality and individual features noticed during the period of the report. The grading would thus be an index of the cumulative appraisal of all essential qualities and shortcomings of an officer/employee, understandably for adjudging his eventual suitability for further advancement in service career on his turn. 24. The 1990 Rules unambiguously specify the authorities for drawing up the confidential reports. For the preparation of the confidential report, the hierarchy of the authorities namely the Reporting Authority, Revenue Authority and the Accepting Authority is an inbuilt safeguard against aberrations motivated by personal likes and dislikes and considerations, non-germane and impertinent. The said Rules are categorical in confining the power of reviewing an entry in the ACR to the Reviewing Authority or the Accepting Authority as the case may be and underline that for doing so the said authorities essentially must see the performance of the employee for at least 90 days during the period for which the report is to be written. The persistent emphasis on the observance of the performance of the officer or the employee concerned by the reporting authority and/or the Reviewing Authority and/or the Accepting Authority is of cardinal significance. The Rules clearly do not comprehend the drawal and/or the review acceptance of the confidential report by any authority other than those identified by the same. 25. The PWD Rules prescribe inter alia the conditions regulating the recruitment to Assam Engineering (Public Works Department) Service and other conditions of service. Rule 13 (4) stipulates that promotions upto the rank of Superintending Engineer is to be made on merit and suitability with due regard to the seniority. Thereunder before the end of each year the Government has to make an assessment of the likely number of vacancies to be filled up by promotion in each cadre. Rule 13 (4) stipulates that promotions upto the rank of Superintending Engineer is to be made on merit and suitability with due regard to the seniority. Thereunder before the end of each year the Government has to make an assessment of the likely number of vacancies to be filled up by promotion in each cadre. The appointing authority would furnish to the Selection Board (to be constituted under Rule 15), the following documents and informations with regard to the officers who in terms of seniority are within the zone of consideration i.e. four times the number of vacancies. (a) Information about the number of vacancies; (b) List of officers in order of seniority, eligible for promotion (separate lists for different cadres shall be furnished) indicating the cadre to which the case of promotion is to be considered; (c) Character rolls and personal files of the officers listed, together with all papers showing that any adverse remark recorded in the character rolls has been duly communicated to the person concerned and any representation against such adverse remark has been disposed of after due consideration; (d) Detailed about reservation in case of promotion to Class II of the Service and about carry forward of vacancies as provided under Sub-rule (3) of Rule 11; and (e) Any other documents and information as may be considered necessary by the Appointing Authority or required by the Board. 26. The Selection Board after examination of the documents and the informations forwarded by the appointing authority would recommend a select list of officers about double the number of vacancies in order of preference found suitable for promotion. The select list when forwarded to the appointing authority would be considered by it along with the character rolls and may approve the same. If some charges are considered necessary, the Board shall be informed thereof and on receiving its consent the list may be approved finally. The select list so prepared would remain valid for 12 months from the date of approval by the Selection Board. In the case in hand admittedly, the Selection Board was comprised of the following members. Shri K. C. Raymedhi, Secretary, PWD Chairman Shri K. L. Das, Chief Engineer, PWD Member Shri P. K. Gupta, Deputy Secretary, Personal (B) Deptt Member 27. In the case in hand admittedly, the Selection Board was comprised of the following members. Shri K. C. Raymedhi, Secretary, PWD Chairman Shri K. L. Das, Chief Engineer, PWD Member Shri P. K. Gupta, Deputy Secretary, Personal (B) Deptt Member 27. The petitioner's assertion that none of these officers had ever any occasion to oversee his performance during the relevant period has remained unrebutted. The members of the Selection Board, therefore, are not the authorities contemplated in the 1990 Rules to act as the Reporting, Reviewing or Accepting Authority vis-a-vis the ACR of the petitioner for the period of 1994-95 to 1998-99. Noticeably Rule 13 does not explicitly authorize the Selection Board to interfere with or modify any entry in the ACR of any officer or employee whose candidature is to be scrutinized by it for assessing his suitability for promotion. 28. Both the 1990 Rules and the PWD Rules are yields of the exercise of power under Article 309 of the Constitution of India and logically the interpretation of the provisions thereof need to ensure harmonious coexistence eschewing repugnancy. The existence of a set of guidelines enumerating the marks to be awarded uniformly on the basis of the gradings in the ACRs and the categorization of the officers/employees depending on the score signal as well as limitation on the power of the Selection Board to interfere with an entry in the ACR prepared and maintained under the 1990 Rules. The marks allotted are only the figurative expressions of the appraisal of the performance already done by the departmental authorities identified in the 1990 Rules and have been devised to facilitate mathematical precision and exactness in identifying the merit of the competing candidates, promoting objectivity in the process. The Selection Board as an independent body is required to apply the guidelines and on a consideration of all other records and documents forwarded to it and the informations furnished as solicited is required to assay the suitability of the candidates and recommend a list of officers/employees double the number of vacancies. The Selection Board as an independent body is required to apply the guidelines and on a consideration of all other records and documents forwarded to it and the informations furnished as solicited is required to assay the suitability of the candidates and recommend a list of officers/employees double the number of vacancies. While it is intelligible that a Selection Board may decline to accept an entry in the ACR in case of patent errors of law or procedure or perversity or absurdity rendering it non est on the face of it, recognition of its unqualified power to re-evaluate the performance and individual profile of an office/employee for a period in the past in my opinion is not countenanced in law and would be otherwise dissentient to the letter and spirit of the 1990 Rules. To acknowledge such a prerogative would tantamount to authorizing a body constituents whereof might not have overseen the performance of person concerned during the relevant period, to make a decisive assessment bearing on his suitability for career progression. A freehand to overhaul the ACRs by the Selection Board in the garb of testing the suitability of the vying officers/employees would result in two different levels of appreciation, one by those empowered by the 1990 Rules and the other not recognized otherwise therefor. Considering the scheme of the Rules, in my view, though the Selection Board may refuse to accept an entry in the ACR if afflicted by any flagrant illegality, procedural irregularity or perversity it cannot sit in appeal over the grading (s) recorded therein by the Reporting Authority/Reviewing Authority/Accepting Authority in accordance with the 1990 Rules. White judging the suitability of the Officer/Employee concerned though permitted to examine all other relevant aspects, it sans in the above limited eventualities cannot override the assessment made by the Departmental Authorities in terms of the 1990 Rules. The guidelines devised, as noticed hereinabove is a clear indicator of the above dichotomy of powers. 29. This view finds reinforcement in Heman Bihari Singh, (supra), where the Departmental Promotion Committee while considering the appellant and others for promotion to the post of Superintending Engineer (Electrical) down graded remarks in the ACR of the Officers though not permissible under the Office Memorandum dated 20.11.1982 incorporating the guidelines prescribed by the Government of Manipur. 29. This view finds reinforcement in Heman Bihari Singh, (supra), where the Departmental Promotion Committee while considering the appellant and others for promotion to the post of Superintending Engineer (Electrical) down graded remarks in the ACR of the Officers though not permissible under the Office Memorandum dated 20.11.1982 incorporating the guidelines prescribed by the Government of Manipur. A Division Bench of this Court ruled that an authority exercising a power under a certain provision of law is bound to act within the provision-express and implicit and not in a manner not provided therein. Referring to the maxim "expressum facit cessare taciturn (When there is express mention of certain things then anything not mentioned is excluded) it discountenaced the approach of the DPC. In the face of all above. I find myself in disagreement with the proposition in Ramen Chandra Kalita, (supra), seemingly acknowledging the power of the Selection Committee/Board to discard the gradings of a particular officer as reflected in the ACR and arrive at its own conclusion on an overall consideration of the service record. 30. The decision of the Apex Court in Dalpat, (supra), delineating the constricted scope of interference with the decision of a Selection Committee is of no assistance to the respondents in the present facts as in the reported decision the Selection Committee was the primary and sole authority to assess the comparative suitability of the candidates. By the same analogy of reasoning the decision in National Institute of Mental Health and Neuro Science, (supra), and Union of India and Anr. v. Ashutosh Kumar Srivastava and Anr. (supra), are of no avail to the respondents. 31. The grant of Selection Grade and Super Time Scale to the respondent No. 3 and selection grade to Respondent No (s) 4 to 8 was amongst others questioned in Syed T.A. Naqshbandi and Ors., (supra), inter alia on the ground that the ACRs prepared or taken into consideration therefore were not reliable and that the overall assessment made therein was erroneous. It was further contended that no uniform principle or norm was adopted in adjudging the claims of those whose ACRS were not available for one or more periods. It was further contended that no uniform principle or norm was adopted in adjudging the claims of those whose ACRS were not available for one or more periods. While negating the challenge in the contextual facts, the Apex Court reiterated that as the power of judicial review was available only to the extent of ascertaining whether the process in reaching the decision has been observed correctly and not the decision itself, critical or independent analysis or appraisal of the materials by the Courts, unlike in appeal is not permissible and, therefore, scrutiny of the correctness of the ACR or the assessment made on the basis thereof would not be conducive to the interest of either the officer concerned or the system and institutions of administration of justice. The parties locked in the issue were officers in the subordinate judiciary in Jammu and Kashmir Higher Judicial Service. 32. Nothing much turns on the observation of the Apex Court in the decision rendered in Union of India and Ors. v. Lt. General Rajendra Singh Kadyan and Anr. (supra), to the effect that the appraisal report or an ACR of 1995-96 and 1996-97 is not the sole factor to be considered by the Selection Authority but only one of the norms to be taken note of by it. As the moderation of the petitioner's gradings in ACR of 1995-96 and 1996-97 by the Selection Board in the present case had a determinative impact on his assessment of suitability, the rendering in the above reported decision does not validate such intervention. 33. Reverting to the minutes of the meeting of the Selection Board held on 31.12.1999, the reasons cited for not accepting the outstanding grading of the petitioner for the years 1995-96 and 1996-97 are (1) the grading is not backed by requisite justification and (2) the report had not been accepted by the Secretary in Office during the period involved but by the new incumbent. The Selection Committee, however, did not record any reason to grade the petitioner as "Very Good" for these two years. The basis of down grading from "Outstanding" to "Very Good" for 1995-96 and 1996-97 is thus not forthcoming. The Selection Committee, however, did not record any reason to grade the petitioner as "Very Good" for these two years. The basis of down grading from "Outstanding" to "Very Good" for 1995-96 and 1996-97 is thus not forthcoming. Apart from the fact that in terms of the form appearing in Schedule II to the 1990 Rules no reason was required to be recorded for grading the petitioner as Outstanding for these two years, by the mandate of Rule 8(2) (iii) thereof in absence of the Accepting Authority during the relevant period, the grading awarded by the Reviewing Authority was to be construed as final. In that view of the matter as well, there was no conceivable justification on the part of the Selection Board to lower the grading of the petitioner from "Outstanding" to "Very Good" for these years. Even assuming that the Selection Board within the limited scope of permissible interference with an entry in the ACR could have refused to accede to the grading accorded to the petitioner for these years, in face of the 1990 Rules, its approach as above was clearly flawed and erroneous. The dilution of the petitioners grading from "Outstanding" to "Very Good" on the above consideration also cannot be sustained. 34. In the wake of the above, the petition has to succeed. The down grading of the petitioner from "Outstanding" to "Very Good" for 1995-96 to 1996-97 is hereby adjudged illegal and unconstitutional and thus inoperative, null and void. Resultantly his placement at Sl. 39 of the Category II Officers with the score of 15 is also interfered with. As a corollary, the petitioner is entitled to have his case considered as on 31.12.1999 afresh for promotion to the post of Executive Engineer, PWD (C) on the basis of his ACRs for the years 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99. The respondents would constitute a Review Selection Board for this purpose. On the basis of the recommendation of the said Review Selection Board, appropriate orders would be passed if he is found so entitled granting retrospective effect to his promotion w.e.f. 1.7.2007 i.e. on and from which Shri Ajoy Ch. Bordoloi was promoted. The case of the petitioner, in such an eventuality would be further considered for promotion to the next higher posts on and from the date on which Shri Ajoy Ch. Bordoloi was promoted. The case of the petitioner, in such an eventuality would be further considered for promotion to the next higher posts on and from the date on which Shri Ajoy Ch. Bordoloi had been so considered strictly in accordance with the Rules, executive instructions and guidelines relevant for the exercise. The process indicated hereinabove should be completed within a period of three months from the date of receipt of certified copy of this order. 35. The petition stands allowed in the above terms. No costs. Petition allowed.